Ivanovich v. City of Union

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NICHOLAS IVANOVICH, et al., Plaintiffs, v. CITY OF UNION, MISSOURI et al., Defendants.

No. 4:22-cv-01011-SPM

United States District Court, E.D. Missouri, Eastern Division

September 1, 2023

MEMORANDUM OPINION AND ORDER

SHIRLEY PADMORE MENSAH, UNITED STATES MAGISTRATE JUDGE

The plaintiffs in this case are several individual property owners who live near a dog breeding and boarding business (“Linny's Kennel”) owned by Defendant Linda Linnemeyer. Beginning in 2021, Linnemeyer petitioned the Board of Aldermen for the City of Union to annex her property into the City and to amend the City's zoning code to allow Linnemeyer to operate Linny's Kennel on her property. Linnemeyer subsequently applied for a conditional use permit to expand her kennel operations. Plaintiffs filed a petition protesting Linnemeyer's application, and the application was denied after a public hearing. When Linnemeyer reapplied eight months later, Plaintiffs filed a second petition protesting Linnemeyer's application for a conditional use permit. After a nonpublic meeting of the Board, Linnemeyer's second application for a conditional use permit was approved over the objections of Plaintiffs.

Plaintiffs sued Linnemeyer, the City of Union, its Mayor, Robert Schmuke (the “Mayor”), and individual members of its Board of Aldermen (the “Board Defendants”).^[1]Plaintiffs claim Defendants violated their due process rights by depriving them of notice and an opportunity to contest (i) the Board's decision to amend the zoning code to allow Linnemeyer's kennel to operate near their homes; (ii) the City's annexation of Linnemeyer's property; and (iii) the Board Defendants' decision to approve Linnemeyer's application for a conditional use permit (Count I). The complaint also asserts Plaintiffs are entitled to a declaratory judgment declaring the City's annexation and rezoning of Linnemeyer's property invalid (Counts II-III). Plaintiffs also seek judicial review of the Board's decision to grant Linnemeyer a conditional use permit (Count IV) and judicial enforcement of Missouri's Sunshine Act, which requires public hearings under the circumstances at issue in this case (Count V).

The City, the Mayor, and the Board Defendants (collectively “Movants”) have moved to dismiss Count I of Plaintiffs' complaint on grounds that Plaintiffs have failed to state a claim under 42 U.S.C. § 1983. Movants also seek dismissal of Counts II-V of Plaintiffs' Complaint as to the Mayor and the Board Defendants on the ground that those claims are redundant against the City. See Docs. 13, 14. As part of their response in opposition to the motion to dismiss Plaintiffs filed a Motion for Leave to Amend by Interlineation to clarify that the Mayor and Board Defendants are being sued in both their official and individual capacities. See Doc. 23.

Both motions have been fully briefed, and the parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §636(c). See Doc. 9. For the reasons set out below, the motion to dismiss will be granted and the motion to amend by interlineation will be denied, as moot.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of Movants' motion to dismiss, the Court accepts as true the following facts taken from Plaintiffs' complaint and makes all reasonable inferences in Plaintiffs' favor:

Plaintiffs are individual property owners who live near Defendant Linnemeyer's dog breeding and boarding business (“Linny's Kennel”). Before July 12, 2021 kennels for boarding or breeding dogs were not permitted in the City's non-urban zoning district, either expressly or by conditional use. On July 12, 2021, Linnemeyer who, at that time was not a resident of the City, requested that the City's Board of Alderman amend the Zoning Code to allow kennels in the non-urban zoning district as a conditional use. The Board approved the request.

On October 11, 2021, Linnemeyer filed a Petition for Voluntary Annexation into the City pursuant to Mo. Rev. Stat. § 71.012, which permits annexation of unincorporated areas contiguous and compact to the existing corporate limits of the City. On November 8, 2021, the Board annexed Linny's Kennel into the City with a zoning classification of non-urban.

On November 12, 2021, Linnemeyer filed an application for a conditional use permit to expand aspects of Linny's Kennel. Some of the Plaintiffs were notified that Linnemeyer's conditional use permit application would be taken up at a hearing before the City Planning and Zoning Commission on January 24, 2022, and that the Board of Alderman would meet on February 14, 2022. After its meeting, the Planning and Zoning Commission recommended approval of Linnemeyer's conditional use permit.

Section 405.685(G)(2) of the City's Zoning Code allows “[s]pecified nearby property owners” to “file a protest with the Board of Aldermen against the Planning and Zoning Commission's approval of an application for a conditional use permit or amendment thereto.” Section 405.685(E) of the Zoning Code states: “Unless the Board of Aldermen exercises its power of review or a duly filed protest as herein set forth is received by the City Clerk, a conditional use permit or an amendment thereto shall become effective after thirty (30) days of the Board of Aldermen's receipt of the Planning and Zoning Commission's report granting the application.” Section 405.860(B) requires that “If a protest against such change, modification, or repeal was presented in writing to the City Clerk duly signed and acknowledged by the owners of thirty percent (30%) or more, either of the area of the land (exclusive of streets, and alleys), included within such proposed change, or within an area, determined by lines drawn parallel to and one hundred eighty-five (185) feet distant from the boundaries of the district proposed to be changed, such amendment shall not become effective except by the favorable vote of two-thirds(2/3) of all the members of the Board of Aldermen."

After the Planning and Zoning Commission recommended approval of Linnemeyer's conditional use permit, Plaintiffs whose properties abut Linny's Kennel filed a Protest Petition with the City. On February 14, 2022, the Board held a public hearing at which evidence was presented showing the requested conditional use permit would not preserve and promote the public health, safety, and general welfare and would “substantially and permanently injure the appropriate use of neighboring property.” Compl., Doc. 1, at ¶36. Specifically, evidence presented demonstrated there would likely be issues related to Missouri's Clean Water Law, nuisance associated with barking dogs, dangers from increased traffic, and decreased property values caused by locating a commercial business in a single-family residential subdivision. Id. At the Board's hearing on February 14, 2022, the Board denied Linnemeyer's application for a conditional use permit.

On July 5, 2022, Linnemeyer submitted a virtually identical conditional use permit application. Some of the Plaintiffs received notice that the Planning and Zoning Commission planned to hold a hearing on the application at its meeting on July 25, 2022. They were also notified that the Board would next meet on August 8, 2022. After its meeting, the Planning and Zoning Commission, once again, recommended approval of Linnemeyer's conditional use permit.

After the Planning and Zoning Commission recommended approval of Linnemeyer's second conditional use permit application, Plaintiffs whose properties abut Linny's Kennel, once again, filed a Protest Petition on July 27, 2022. Plaintiffs were prepared to attend the August 8^th meeting to present evidence similar to what they presented at the February Board meeting. However, on August 8, 2022, the Board refused to hold a public hearing and did not discuss Linnemeyer's application during the open meeting. Instead, the Board conducted a closed meeting on August 8, 2022, after which it approved Linnemeyer's second application for a conditional use permit.

Plaintiffs allege various irregularities and deficiencies in the procedures used when the foregoing decisions were made regarding Linny's Kennel. Specifically, Plaintiffs allege that when the zoning code was amended in July 2021 to allow kennels in a non-urban district, the Board held its regular meeting, but failed to post notice of a public hearing on the property in a conspicuous manner despite being aware that the amendment was specifically intended for Linny's Kennel. Plaintiffs further allege that the Board improperly considered Linnemeyer's subsequently filed Petition for Voluntary Annexation without notice to Plaintiffs, and improperly annexed Linny's Kennel into the City with a zoning classification of non-urban. Finally, Plaintiffs allege that when the Board approved Linnemeyer's application for a conditional use permit to expand her kennel operations in August 2022, it did so after a closed (non-public) meeting in contravention of the City's zoning code and regulations.

Plaintiffs filed the instant action alleging that the irregularities and deficiencies in the zoning procedures used by the defendants when the decisions outlined above were made violated their due process rights. They are seeking relief for those alleged constitutional violations under 42 U.S.C. § 1983. Defendant Linnemeyer has answered the Complaint. See Doc. 5. Defendant City of Union has moved to dismiss Count I and has answered the remaining claims. See Docs. 13 14, 15. The Mayor and Board Defendants have moved to dismiss all claims against them. In response to the motion to dismiss filed by the Mayor and Board Defendants, Plaintiffs have filed a motion for leave to amend by interlineation that is also pending...