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HomeMy WebLinkAboutHDC1990-005 United States District Court Eastern District Of Arkansas Western Division. Photos Of 715 Sherman And 1101 McAlmont 11/14/1994r •r •r I i A UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION IDEP -- EVELYN DUFFEY ALLISON PATTON PLAINTIFFS V. NO. LR-C-94-344 CITY OF LITTLE ROCK, ARKANSAS AND THE QUAPAW QUARTER ASSOCIATION DEFENDANTS SEPARATE DEFENDANT CITY OF LITTLE ROCKS BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION AND FACTUAL BACKGROUND In May 1976, the City of Little Rock (the "City") established an Historic District Commission (the "Commission"). The following year, the state legislature determined it was desirable that the historical and cultural heritage of the State be preserved, and passed the Historic Districts Act which is codified at Ark. Code Ann. §§ 14-172-201 et seq. The Historic Districts Act has as its stated purpose the promotion of educational, cultural, economic, and general welfare of the public through the preservation and protection of buildings, sites, places, and districts of historic interest through the maintenance of such as landmarks in the history of architecture of the municipality, the state, and of the nation. Ark. Code Ann. § 14-172-202. Plaintiffs purchased four pieces of property on Rock Street in Little Rock prior to the formation of the Commission or the MacArthur Park Historic District (the "District"). Plaintiffs sought to prevent the establishment o£,) this historical district which would encompass -their property, but their efforts to defeat the District were unsuccessful. Plaintiffs originally purchased the property at 815 Rock Street for $14,100 and intended to convert it to use as their personal residence. However, economics prevented them from doing so. The structure at 815 Rock Street was built in circa 1895 and was used as a residence by Joseph E. England, Jr., a prominent business man of the time. The structure became known as the England House and was noted by the Quapaw Quarter Association as a structure that contributed most to the architectural ensemble of Little Rock. Such structures are considered irreplaceable and should be preserved and protected to prevent loss of historic resources to the City. In June 1972, City building code inspectors informed the Plaintiffs that substantial repairs would be necessary to bring the structure into compliance with housing codes. Rather than make the necessary repairs, the Plaintiffs opted to convert the structure for use as a storage facility for old furniture and other items. Defendant's Exhibit No. 1, attached to Motion for Summary Judgment ("Motion"). From 1974, when 815 Rock Street was converted to storage, until 1990, the Plaintiffs performed minimal maintenance and repair of the structure in an effort to secure the property. Plaintiffs also made several unsuccessful attempts to sell the property. Plaintiffs hoped to realize approximately $18,000 to $22,000 from the sale of 815 Rock Street. However, the only offer they can recall -2- receiving was for $5,000 to be paid at the rate of $50 per month. Plaintiffs declined this offer. In June 1990, following an inspection, City inspectors sent Plaintiffs a Warning Notice which stated in pertinent part that the dwelling was condemned as unfit for human habitation, offensive to the neighborhood, and dangerous to the lives, limbs, and property of persons in its vicinity or lawfully passing thereby. The Warning Notice gave Plaintiffs thirty (30) days to either initiate repairs or demolish the dwelling. Defendant's Exhibit No. 2, attached to Motion. After receiving the Warning Notice, Plaintiffs contacted a construction company to obtain an estimate for the cost of bringing the dwelling into usable condition and compliance with City codes. The estimate indicated a cost of $204,895. Plaintiffs determined it was cost prohibitive to bring 815 Rock Street into compliance with City codes. Instead, they opted to demolish the structure and use the resulting vacant lot to enlarge the yard of their personal residence which adjoins 815 Rock Street. Plaintiffs sought a demolition permit from the City, but the City was unable to issue the permit until the Plaintiffs obtained a Certificate of Appropriateness from the Commission as required by state law. Ark. Code Ann. § 14-172-208. On August 2, 1990, Plaintiffs appeared before the Commission for the purpose of obtaining a Certificate of Appropriateness to demolish 815 Rock Street. The Commission deferred its decision until September 1990, at which time the Commission denied the Plaintiffs' request. Plaintiffs did not appeal the -3- Commission's decision to Pulaski County Chancery Court as permitted by Ark. Code Ann. § 14-172-212. Between September 1990 and December 1993, Plaintiffs did not perform any significant maintenance or undertake preservation measures of the structure at 815 Rock Street other than to post warning signs and to keep boards on windows in an effort to prevent further deterioration of the structure. On December 2, 1993, Plaintiffs again approached the Commission to obtain a Certificate of Appropriateness to demolish 815 Rock Street. The Commission denied the Plaintiffs' request for a Certificate. The Plaintiffs again took no action to appeal the Commission's denial of the Certificate of Appropriateness to Pulaski County Chancery Court as permitted by Ark. Code Ann. § 14-172-212. During the December 2, 1993 Commission hearing, members of the Commission asked Plaintiff Duffey how much it would cost to demolish the structure at 815 Rock Street. She replied that the cost would be between $4,000 and $6,000. Commissioners asked Plaintiff Duffey if she was saying that no one was willing to pay $4,000 to $6,000 for the property. Plaintiff Duffey replied that she thought someone would pay $4,000 to $6,000 to buy the house, if she were willing to sell it at that price. However, she indicated that the increased yard space resulting from the demolition would add value to her personal residence which adjoins 815 Rock Street and she was looking forward to that. In January 1994, Plaintiffs prepared notebooks which -4- they presented to the City's Board of Directors (the "Board") to inform the Board of the situation they were encountering in their efforts to comply with the City's Warning Order. The notebooks contained photographs of the structure which depicted advanced deterioration of both the interior and exterior of the structure. In the notebooks, Plaintiffs made several references to being unable to accept "give away" or "fire sale" prices for the sale of 815 Rock Street. Plaintiffs also stated in the notebooks that "[o]nly if we were willing to take a financial beating would we have ever been able to sell it." Defendant's Exhibit No. 3, attached to Motion. On May 31, 1994, Plaintiffs filed an Amended Complaint in this Court alleging a violation of their due process rights and a taking of their property under the Fifth and Fourteenth Amendments. In September 1994, the City Board passed an ordinance authorizing the demolition of 815 Rock Street. The City passed this ordinance as an exercise of its police powers in an effort to protect the safety and welfare of its citizens. Defendant's Exhibit No. 4, attached to Motion. The Plaintiffs contracted with a demolition company which demolished the structure at 815 Rock Street in early October 1994. II. ARGUMENT A. PLAINTIFFS WERE NOT DEPRIVED OF DUE PROCESS In their lawsuit, brought pursuant to 42 U.S.C. § 1983, Plaintiffs raise two constitutional arguments. First, they allege a violation of their procedural due process rights -5- under the Fourteenth Amendment. Next, they assert the City effected a "taking" of their property under the Fifth and Fourteenth Amendments. Plaintiffs cannot sustain either claim. Furthermore, Plaintiffs' request for injunctive relief to require the City to issue a demolition permit is moot since the structure at issue has now been demolished. From a reading of their Amended Complaint, Plaintiffs' claim of denial of due process seems to be phrased as follows: (1) the Commission is a biased tribunal; (2) the Commission does not follow any procedural or evidentiary rules; and (3) petitioners appearing before the Commission have no other forum available to them before which their claims can be heard. Each of these arguments will be examined more fully in the following discussion. First, Plaintiffs claim the Commission is a biased tribunal because it rules on Certificates of Appropriateness while at the same time it is charged with the responsibility of the protection and enhancement of the historic district. The Commission could -only be considered to be biased in this respect if it never approved a Certificate of Appropriateness for demolitions within the District. However, this is simply not the case. The Commission has approved six applications for certificates of appropriateness to demolish properties which were presented by property owners within the District during the past six years. Also, in the past two years, the Commission has approved six applications for demolition which were presented by the City. Defendant's Exhibit No. 5 attached to Motion. Plaintiffs' mere assertion of bias is insufficient to prove the actual existence of bias within the Commission. The fact that the Commission has approved no fewer than twelve requests for Certificates of Appropriateness to demolish structures within the historic district in the past six years is indicative evidence that it is not biased. A truly biased commission would never approve any applications that seek to destroy an historic structure. Next, Plaintiffs argue that the Commission does not follow any established procedure or evidentiary rules and that as a result, they were denied due process. The Commission is not a court of law; it is an administrative agency. The Commission is not bound to follow rules of civil procedure or evidence the way a court is. The Commission does follow Robert's Rules of Order for parliamentary procedure. The heart of Plaintiffs' argument is that everyone who wants to speak either in favor of, or against, an application is granted the same amount of time. The speakers can offer hearsay and are not subject to cross examination. Plaintiffs claim the admission of hearsay and denial of the right to cross examine those with opposing views amounts to a denial of due process. Plaintiffs ignore the constitutionally established parameters of due process. The touchstones of due process are notice and an opportunity to be heard. Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306 (1950). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner, and for a hearing appropriate to the nature of the case. Logan v. -7- Zimmerman Brush Co., 455 U.S. 422 (1982); Armstrong v. Manzo, 380 U.S. 545 (1965). No cases require more than notice and an opportunity to be heard. Plaintiffs were afforded an opportunity to speak or have an agent speak on their behalf before the Commission. While it is true that Plaintiffs were not allowed cross examination of the speakers with opposing viewpoints, due process does not require such. Finally, Plaintiffs allege that after presenting their claims to the Commission, and being denied, they are left with no other forum before which to present their claims for review. This assertion is not true. The Arkansas statutes governing historic districts contain an express provision which deals with appeals of decisions by historic district commissions. Due to the importance of these provisions to this lawsuit, they are being set forth in their entirety. Ark. Code Ann. § 14-172-212. (a)(1) Any applicant aggrieved by the determination of the historic district commission, within thirty (30) days after the making of the decision, may appeal to the chancery court of the county wherein the property is located. (2) The court shall hear all pertinent evidence and shall annul the determination of the commission if it finds the reasons given for the determination to be unsupported by the evidence or to be insufficient in law and may make such other decree as justice and equity may require. (b) The remedy provided by this section shall be exclusive; but the applicant shall have all rights of appeal as in other equity cases. The statute clearly states that any applicant who has appeared before the Commission and is aggrieved by a decision of the Commission can appeal to Chancery Court within thirty (30) days of the decision. The statute also states that the court will hear all pertinent evidence, indicating the possibility of presenting evidence to the court in the form of testimony, briefs, or oral argument. Plaintiffs had two separate opportunities to appeal the Commission's decision to Chancery Court, but did not avail themselves of this appeal either time. During the Plaintiffs' depositions, the City asked the Plaintiffs why they did not appeal the Commission's decision to Chancery Court. The Plaintiffs responded as follows: Deposition of Evelyn Duffey, p. 38, line 2: (Defendant's Exhibit No. 6, attached to Motion) Q: Once you were denied by the Historic District Commission a Certificate of Appropriateness, did you appeal to the Chancery Court? A: No, we decided against that because we didn't feel like we would get a fair hearing in the Chancery Court. Q: Why did you think that? A: Well, according to my lawyer-- Q: You don't need to tell me any advice he gave you, but if you can explain to me why you understand it -- A: Well, as I understand it, they would hear, in the Chancery Court, the minutes of the meeting of December 2nd, and they would base their decision on what was presented in that meeting. We would have to take our chance on whether or not they would consider our Complaint as being legitimate --a legitimate complaint and whether or not the Historic District Commission, at the time, in following the guidelines was correct or not, in the way they held the meeting. Q� Q: Was it your belief that at Chancery Court you would not have a chance to talk to the Judge or to put on any evidence? A: Yes, it was my belief that outside evidence would probably not be admissible. Deposition of Alison Patton, p. 16, line 2: (Defendant's Exhibit No. 7, attached to Motion) Q: About midways through this paragraph there is this sentence, "I do object to Chancery Court being the sole appeal since it only reviews the Commission meeting in question." Can you tell me what you mean by that? (various objections were made on the record, then the questioning continued) Q: I would like for you to answer the question as best you can. Realize I am not asking you for a legal opinion, but you made the statement -- A: That's good. Q: You have told me -that you authored this document. A: Correct. Q: And I would like to know what your basis for this statement that you object to Chancery Court being the sole appeal. A: Okay; The day after the Commission meeting, Bill (Hylton, attorney for Plaintiffs) was getting ready to file, and he researched it. All right? And he came back and told us-- Q: You don't need to tell me anything that he told you as far -as --I don't want to get into any attorney/client privilege advice. If your answer is just that on the advice of your attorney -- A: That's the answer. It is apparent from this testimony that the Plaintiffs mistakenly believed that despite the plain wording of the -10- , statute, they would not be able to present evidence to the Chancery Court --that only a record review would take place. Even if this were true, a record review would still allow the chancellor to determine if the Commission's decision was arbitrary and capricious. It would allow due process to the Plaintiffs. Plaintiffs assumed they would "have to take their chance" on whether or not the chancellor would consider their claim "legitimate." All avenues of appeal in any type of case involve some measure of risk -taking. There is always the possibility that an appellant will lose on appeal. The mere fact that this possibility exists is not reason enough for Plaintiffs to reject their statutory right of appeal. Nor, is it enough to convert Plaintiffs' claim into a constitutional challenge under 42 U.S. C. § 1983. Plaintiffs obviously chose not to "take their chance" with the Chancery Court. Having made the conscious decision not to avail themselves of their right of appeal, Plaintiffs cannot now complain of a deprivation of due process. Plaintiffs deliberately chose, not once, but twice, not to exercise their right of appeal to Chancery Court and subsequent right to appeal the chancellor's decision to the Arkansas Supreme Court. Any deprivation of due process which has occurred here, occurred due to Plaintiffs' own choice. Plaintiffs should not be allowed to seek redress in federal court for their own decision not to appeal the Commission's decision unless they can prove that state law does not afford a meaningful and expeditious remedy. Davis v. Dhamm, 763 F. -11- Supp. 1010 (W.D. Ark. 1991). Plaintiffs mistaken belief that state court procedures would not satisfy due process is insufficient to state a cause of action under 42 U.S.C. § 1983. To state a cause of action under Section 1983, the Plaintiffs must Show that the City has some official policy or custom, adopted by its official policymakers, which caused the alleged constitutional violation. City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); and Oklahoma City v. Tuttle, 471 U.S. 808 (1985), reh'g denied, 473 U.S. 925 (1985). In Paragraph 18 of their Amended Complaint, Plaintiffs allege: "[t]he aforesaid deprivation of plaintiffs' rights was the legal result of the acts of persons vested by the City with policy -making authority. . ." With regard to this allegation, the Plaintiffs must prove the following: (1) the existence of a City policy, promulgated by the City's official policymakers, or of a practice "so permanent and well settled as to constitute a 'custom or usage' with the force of law"; (2) that the policy is unconstitutional; and (3) that the policy caused any allegedly unconstitutional conduct. Praprotnik, 485 U.S. at 123. Allegations of official policy or custom of a municipality must be pleaded with specificity, particularly where the Complaint fails to suggest that the incident complained of was other than an isolated one, unrelated to municipal policy. In such cases, the plaintiff must establish the specific custom or policy that is the moving force behind -12- the alleged constitutional violation. Morton v. City of Little Rock, 934 F.2d 180 (8th Cir. 1991); and Strauss v. City of Chicago, 760 F.2d 765 (7th Cir. 1985). Here, the Plaintiffs fall far short of what is required for a cause of action under Section 1983. At the outset, Plaintiffs' claim is flawed because it assumes the Commission members are City policymakers. See Paragraphs 17 and 18 of Plaintiffs' Amended Complaint. The commissioners do not make official City policy. Their actions are reviewable by the City Board of Directors which has authority to set City policy. In fact, in this case, the City Board voted to demolish Plaintiffs' structure at 815 Rock Street, despite the Commission's decision to deny a Certificate of Appropriateness for the demolition. Here, Plaintiffs' allegations of policy or custom of the City are purely conclusory and are not supported by specific facts. The identification of policymaking officials is a question of state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). Ark. Code Ann. § 14-47-109(a)(2) states that in a City Manager form of government (such as Little Rock), the board of directors shall constitute the supreme legislative and executive body of the City. The Commission may suggest to the Board proposed amendments to any ordinance or suggest ordinances to be adopted. Ark. Code Ann. § 14-172-207(5). However, the Commission is not empowered to enact ordinances. After all, the Commission itself is merely a creation of the Board. See Ordinance No. 13,154 passed on May 4, 1976. Defendant's Exhibit No. 8, attached to Motion. -13- The continued existence of the Commission is dependent upon the Board. Such an incomplete delegation of authority - i.e., the right of review being retained - will not result in municipal liability. Williams v. Butler, 863 F.2d 1398, 1402 (8th Cir. 1988), cert denied, 109 S. Ct. 3215 (1988). Plaintiffs' failure to identify a City policymaker or to describe an official policy or custom which caused any allegedly unconstitutional conduct is fatal to their claim against the City. Furthermore, Plaintiffs did not name any individuals in their Complaint, nor did they allege any individual capacity allegations that would impose liability upon any individual within the City. For these reasons alone, summary judgment should be granted to the City. Plaintiffs have failed to plead with specificity the policy or custom of the City which deprived them of their constitutional rights. As the Court stated in Munz v. Parr, 758 F.2d 1254 (8th Cir. 1985), conclusory statements are not sufficient to state a claim against the City. The Plaintiff must do more than merely parrot the language of Monell. It is not enough to make bare allegations without being able to support those allegations with specific facts. At their depositions, Plaintiffs were similarly unable to identify any specific City custom, practice, or policy which operated to deprive them of their constitutional rights. Deposition of Alison Patton at p. 31, line 15: Q: Paragraph 18, "The aforesaid deprivation of plaintiffs' rights was the legal result ❑f the acts of persons vested by the city with policy- making authority. Who were these city policy makers that you are describing here? -14- A: That's the Commission members. Q: In Paragraphs 19 and 20 you use the phrases custom, usage, and policy. Are there any specific events or facts that you were referring to specific to the Quapaw Quarter Association in these two paragraphs? A: Well, the one is stated, the Association's recommendation, but the primary one is again the three Commission members who are closely associated with the QQA hierarchy. Although by the time Plaintiff Duffey was deposed several days later, she named the City directors as policymakers, she still could not explain how the City directors acted to deprive her of her constitutional rights. Plaintiff Duffey said the directors deprived her of her constitutional rights when they "kicked around" her problem at 815 Rock Street and "didn't make any decision" until the Plaintiffs filed this lawsuit. However, Plaintiff Duffey finally admitted that the directors were not asked to make a decision about 815 Rock Street until the City Attorney presented an ordinance for demolition on September 20, 1994. It was the Commission, not the City Board that "kicked around" the problem of 815 Rock Street. See Deposition of Evelyn Duffey, Defendant's Exhibit No. 6. In Vialez v. New York City Housing Authority, 783 F. Supp. 109 (S.D.N.Y. 1991), the district court considered a situation similar to that of the instant case. In Vialez, the plaintiff was a public housing tenant whose tenancy was terminated by the New York Housing Authority. The plaintiff -15- did not seek an appeal of the Housing Authority's determination. Later, with the assistance of an attorney, the Plaintiff sought to reopen the hearing, but the Authority denied her application to reopen. The Plaintiff did not seek an appeal of that denial or seek any other redress in the state courts. Instead, she brought an action under 42 U.S.C. § 1983, claiming violation of her federal civil rights. The district court reasoned that if a plaintiff had an opportunity to contest a defendant's actions, but failed to do so, there can be no claim for violation of his or her procedural due process rights under 42 U.S.C. § 1983. The Court held that although one need not exhaust state remedies before bringing a § 1983 action claiming a violation of due process, one must nevertheless show that state procedural remedies are inadequate. Vialez, 783 F. Supp. at 113-114 quoting Marino v. Ameruso, 837 F.2d 45 (2d Cir. 1988). The Vialez court also said that where a plaintiff alleges deprivation of property in violation of the due process clause, the federal court's initial inquiry must be whether the state has provided adequate remedies to redress such unlawful acts. If so, there will be no claim before the federal court, whether or not the plaintiff took advantage of the state procedure. "If the state provides an adequate alternative remedy, the loss of property is not without due process of law. The existence of the alternative remedy supplies the 'due process' and there is no 'deprivation' of a property interest by the state." Vialez, 783 F. Supp. at 114. The Vialez case is similar to this case because the -16- plaintiff had an opportunity to appeal an adverse agency decision to the state court on two separate occasions but chose not to do so. Similarly, the Plaintiffs in this action had an avenue of appeal available to them, but they chose not to avail themselves of the state court remedies. The mere existence of a state court remedy provided the Plaintiffs with due process. Recovery under Section 1983 is premised upon a showing that the defendant has denied the plaintiff a federal constitutional right under color of state law. Here, the Defendants denied the Plaintiffs nothing. Instead, the Plaintiffs made a deliberate choice to bypass the state court appeal procedures which were available to them. In their Amended Complaint at paragraphs 17(c) and (d), Plaintiffs suggest how they arrived at their mistaken conclusion that an appeal to chancery court would be futile. Plaintiffs state in Paragraph 17(c) that "[s]tate statutes and the City's ordinances allow appeal of the Commission's rulings to the appropriate Chancery Court of the State of Arkansas, but the possibility that this forum might offer relief to aggrieved property owners was forestalled by the Arkansas Supreme Court in the case of Second Baptist Church ex rel Buffington Towers, Ltd. Partnership v. Little Rock Historic District Comm'n., 293 Ark. 155, 732 S.W.2d 483 (1987). ." 1 Again, it is important to note that even a mere "record review" would afford Plaintiff's due process. Simply because the Plaintiffs dislike the forum is not an indication that they would be deprived of due process. -17- Plaintiffs then quote language from the Second Baptist case which they believe forecloses their opportunity to present evidence to a chancellor in an appeal from a decision of the Commission. Near the end of the Second Baptist case, the Court discusses the standard of review for zoning cases and states that chancellors do not conduct a de novo review, but rather merely determine if the municipality's action is arbitrary and capricious, a standard that generally indicates a review of the record as opposed to a trial de novo. The Arkansas Supreme Court, writing through a Special Justice, unfortunately confused the appeal of a decision from the Historic District Commission with that of an appeal of a zoning decision. The two appeals are distinctly different and are governed by separate statutory schemes for appeals. Appeals from the Board of Zoning Adjustment can be of two different types --legislative or administrative. A zoning decision like that in McMinn v. City of Little Rock, 275 Ark. 458, 631 S.W.2d 288 (1982) the case the Second Baptist Court relied upon, is an appeal of a legislative act. In such a case, the chancellor cannot conduct a de novo review, but instead simply determines whether the decision of the city was arbitrary and capricious. However, an administrative or quasi-judicial decision of the Board of Zoning Adjustment can be reviewed by a circuit court in a trial de novo pursuant to Ark. Code Ann. 14-56-425. This statute expressly excludes legislative decisions from those which can be tried de novo in circuit court. See also, City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W.2d 286 (1992). -18- An appeal from a decision of the Historic District Commission is not an appeal of a zoning case. Plaintiffs are correct that the Arkansas Supreme Court in dicta set forth the standard for review of zoning cases as the applicable standard for reviewing decisions of the Commission. Despite this unfortunate language in the opinion, this standard enunicated by the Arkansas Supreme Court is incorrect and directly contradicts the statute which governs appeals from the Commission. Ark. Code Ann. § 14-172-212(a)(2) expressly states that the chancellor will hear all pertinent evidence (emphasis added). This standard could encompass merely a review of the Commission's determination, if no other evidence existed, or could take the role of a trial de novo. Plaintiffs completely ignore the language in Second Baptist where the Court explained the procedural posture of the case. The Court at 837 S.W.2d 485, explained that the decision of the Commission was appealed to Pulaski County Chancery Court, Third Division. The Court then states that after a hearing, the Court affirmed the Commission's decision and dismissed the church's appeal. (emphasis added) The fact that a hearing was held indicates that something more than a review of the record below occurred. In fact, the City having been a party to the Second Baptist case, knows that briefs were submitted to the chancellor who also heard oral arguments of counsel. In the Second Baptist case, there was a verbatim transcript of the proceedings before the Commission, something that did not exist in this case. Perhaps the availability of a record of the proceedings before the -19- Commission made it unnecessary to have a trial de novo in chancery court. From the statute, it appears that the chancellor can make the determination of what evidence is pertinent to its decision. This evidence could take the form of a trial de novo, trial briefs, or oral arguments. It appears to be within the Chancellor's discretion. Plaintiffs did not take advantage of the state court appeals that were available to them. There has been no denial of due process to the Plaintiffs. Plaintiffs made their own decision not to seek redress in the state courts. They have failed to state a deprivation of their constitutional rights sufficient to sustain a claim under 42 U.S.C. § 1983. Even assuming Plaintiffs were correct in their belief that only a review of the record before the Commission would be considered by the chancery court, they still have not explained why such a review would deny them due process. The chancellor would be a detached and neutral decisionmaker who would review Plaintiffs' claim in a meaningful manner. Due process does not require more than notice and an opportunity to be heard. Plaintiffs have failed to show that a review in state court would not meet this standard. B. NO TARING OF PLAINTIFFS° PROPERTY ❑CCURRED Plaintiffs allege as a second constitutional claim that they were deprived of their property in violation of the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs claim that because they were not allowed to demolish their home that a regulatory taking of their property occurred for which they must be compensated. -20- This point is moot since the Plaintiffs have now been granted permission to demolish the structure at 815 Rock Street and have done so. However, Plaintiffs still seek damages for the alleged taking, so this issue will be briefly discussed. In Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978), reh'g denied, 439 U.S. 883 (1978), the United States Supreme Court reviewed a case in which the New York City Landmarks Preservation Commission refused to approve plans for construction of a 50-story office building over Grand Central Terminal, which had been designated a landmark. The terminal owner sued, alleging the application of the landmarks preservation law constituted a "taking" of the property without just compensation and deprived owners of their property without due process of law. The Supreme Court determined that application of landmarks preservation law did not constitute a taking of property without just compensation. The Court in this case and numerous other cases has upheld the rights of states and cities to enact land -use restrictions or controls that enhance the quality of life by preserving the character and desirable aesthetic features of a city. The objective of preserving structures and areas with special historic, architectural, or cultural significance is an entirely permissible governmental goal. Penn Central, 438 U.S. at 128-29. The Court also noted that the terminal owner was not forbidden to use the property in the same manner that it had -21- been used for the past 65 years. Therefore, the law did not interfere with what the owners must have regarded as their primary expectation concerning the property. The Court refused to conclude that a "taking" of the property had occurred. In this case, the situation is somewhat different. The Plaintiffs, by their own admission, bought the property at 815 Rock Street in 1972 and allowed it to sit idle for over twenty years without taking any steps to revitalize the property or bring it up to code standards. The Commission did not forbid the Plaintiffs from continuing this same use. However, the City code inspectors had condemned the property and were pressing the Plaintiffs to either rehabilitate the property or demolish it. The Plaintiffs determined that it was cost prohibitive to make the necessary repairs to bring the structure into compliance with City codes. However, they could not demolish it without a Certificate of Appropriateness from the Commission which the Commission refused to approve. Plaintiffs made some attempts to sell the property, but were unsuccessful. Of course, it must be pointed out that Plaintiffs wanted to receive $15,000 from the sale of the property. They were not willing to take $4,000 to $6,000 for the property. The City did not deprive them of their opportunity to sell the property and be rid of their quandary. Plaintiffs decided on their own what a reasonable price would be for the property and they decided not to take substantially less than that amount. Plaintiffs decided that -22- the best use of the property would be to use it to enlarge the yard of their personal residence which adjoins this property. The Commission apparently did not find that such a use was appropriate given the historical significance of the structure which was built in approximately 1898. Regardless of this fact, the Plaintiffs have failed to show how being denied their desired use of the property constituted a "taking" of the property. Although the Plaintiffs did not buy the property before the Historic District was established, they were aware of the restrictions that were imposed on property owners within the district. They could have sold the property before it deteriorated so badly that it would only bring a minimal price. Plaintiffs had more than one alternative for how to dispose of the property. However, they decided they wanted to keep the land and use it to enhance their yard space. Simply being denied the only alternative acceptable to the Plaintiffs is a far cry from a taking of the property. Another "taking" case involving an historic property is Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975), reh'g denied, 521 F.2d 815 (1975); cert denied, 426 U.S. 905 (1976). Mr. Maher had tried since 1963 to demolish a cottage he owned and to erect an apartment complex on the site. The Historical District Commission refused to issue a demolition permit. Maher filed suit in district court alleging the ordinances creating the Commission were unconstitutional and the enforcement of the ordinance deprived him of his rights under 42 U.S.C. § 1983. -23- The court held that the ordinance was a proper exercise of the City's police power because it sought to preserve the unique historical characteristics of the French Quarter. The court also found that the appeal process set forth in the ordinance acted as a structural check on any potential for arbitrariness that might exist. Thus, no due process violation occurred. In dismissing Maher's "takings" claim, the court looked to the United States Supreme Court for guidance. The Supreme Court repeatedly made clear that an ordinance does not become an unconstitutional taking merely because, as a result of its operation, property does not achieve its maximum economic potential. Goldblatt v. Town of Hempstead, 369 U.S. 590 (1962). The court also held that Maher did not demonstrate that a taking occurred because the ordinance so diminished the property value as to leave Maher, in effect, nothing. Maher did not show that the sale of the property was impracticable, that commercial rentals could not provide a reasonable rate of return, or that other potential uses of the property was foreclosed. Similarly, Plaintiffs have failed to demonstrate that sale of their property was impracticable. Simply because Plaintiffs could not obtain $15,000 for a piece of property they paid $14,100 for and allowed to deteriorate for over 20 years is not evidence of impracticability. In fact, Plaintiffs admit that if they had been willing to take $4,000-$6,000 for the property, it probably would have sold. -24- C. PLAINTIFFS CANNOT PROVE THE EXISTENCE OF ANY DAMAGES In their lawsuit, Plaintiffs seek over $3.1 million in damages. This amount is grossly in excess of any damages suffered by the Plaintiffs --real or imagined. The only damages that Plaintiffs can quantify with any specificity are some of their out of pocket expenses which were expended in their efforts to petition the City Board to grant them a demolition permit. They demand a million dollars each for (a) mental and emotional anguish; (b) humiliation, embarrassment, and injury to reputation; and (c) general damages for violation of their constitutional rights. They also demand $100,000 for the purported regulatory condemnation of their property, while admitting the value of the property was approximately $15,000. At their depositions, Plaintiffs were unable to articulate any specific examples of their damages. They did explain that they felt some distress that someone might be injured in the structure and that a claim would devastate them financially. However, other than that, they said they relied on advice of counsel in arriving at the amount of their damages. Plaintiff Duffey, when asked why she was asking the Court to award her $1 million for mental and emotional anguish, stated: "Well, practically speaking, I think I wanted them to suffer as much as I did. That $1 million, if they had to raise it, would have caused a lot of anguish, I think, among the City Directors and the QQA.n Duffey depo at p. 56, line 22. -25- These reasons are hardly compelling enough for a federal court to award substantial damagea to a Plaintiff. Plaintiffs must still prove damages before they can be awarded. In Carey V. Piphus, 435 U.S. 247 (1978), elementary and secondary students who claimed they had been suspended without due process brought action against the school board under § 1983. In Carey, the Court held that although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983, neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused. The Court held that the denial of procedural due process should be actionable only for nominal damages without proof of actual injury. III. CONCLUSION The Court does not have to consider the issue of damages because the Plaintiffs are unable to show that any deprivation of their civil rights occurred. Plaintiffs voluntarily chose not to avail themselves of the state court appeal rights. Therefore, they cannot complain that the City deprived them of due process. Furthermore, they have failed to identify either a City policymaker or City custom, practice, or policy which deprived them of their constitutional rights. Finally, Plaintiffs have not shown that any "taking" of their property occurred. For these reasons, the Court should enter summary judgment in favor of Separate Defendant, the City of Little Rock. -26- Respectfully submitted, Thomas M. Carpenter City Attorney By: "-L Patricia T. Ha , 90006 Deputy City Attorney City Hall, Room 310 Little Rock, AR 72201 (501) 371-4527 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been served upon the folla ing counsel same in the U.S. mail, postage prepaid, on this 1day of November, 1994. William W. Hylton, III Attorney at Law 1501 South Elm Street Little Rock, Arkansas 72204 Nate Coulter Attorney at Law Post Office Box 71 Little Rock, Arkansas 72201 a ri is 30. Hayso -27- The Kramer School :: �9 The Romanesque Revival -style Fred !Cramer School was designed by pioneer Arkansas architect Thaws Harding, Sr., and constructed in 1895. Expanded in 1906 and again in 1931, it served the young people o7 Little Rock's east -of -train community for three-quarters of a century. Vacant since the late 1970s, the school was declared surplus to the needs of the Little Rock School Board and sold to the present owner in 1983. Today, it is the oldest remaining public school building in Pulaski County. 71 r% ihornan Historic Name: Krarser School Date: c1895 Style: Romanesque Revival Architectural Sipificance: I Historical Sianificance: S Listings: "tone Map Section: MPJG ••� its}?ir 243 llol McAlmont Historic Name: undetermined Date: undetermined Style: Craftsman commercial Architectural Significance: II Historical Significance: L Listings: None Map Section: MP/H -, 11