Solum v. Bd. of Cnty. Comm'rs for the Cnty. of Hous.

880 F.Supp.2d 1008

Matthew and Beth SOLUM and Melvin Davy, Jr. and Jean Davy, Plaintiffs,

v.The BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF HOUSTON, a political subdivision within the State of Minnesota in its official capacity; Bob Scanlan, Zoning Administrator, Houston County, Minnesota, in both his individual and official capacities; Richard Frank, Director of the Environmental Services Office, Houston County, Minnesota, in both his individual and official capacities, Defendants and Third–Party Plaintiffs,

v.Jared Solum, Third–Party Defendant.

Civil No. 11–2952 (DSD/SER).

United States District Court, D. Minnesota.

July 20, 2012.

Karen Budd–Falen, Esq., Budd–Falen Law Offices, Cheyenne, WY, Andrew D. Parker, Esq., Parker Rosen LLC, Minneapolis, MN, for plaintiffs.

Jay T. Squires, Esq., Courtney R. Sebo, Esq., Ratwik, Roszak & Maloney, PA, Minneapolis, MN, for defendants.

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the motion to dismiss or, in the alternative, the motion for summary judgment by defendants ¹ (collectively, Houston County), and the motion to dismiss the third-party complaint by Jared Solum. Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants the motion for summary judgment.

BACKGROUND

This land-use dispute arises from defendants' enforcement of the Houston County zoning ordinance. The court recites the facts as they apply to each plaintiff.²

Plaintiffs Matthew and Beth Solum

On November 3, 2005, Matthew and Beth Solum purchased a home located on 8.36 acres of land from third-party defendant Jared Solum.³ First Am. Compl. ¶ 25. On December 5, 2005, Houston County Zoning Administrator Bob Scanlan informed the Solums that their property was not compliant with Houston County zoning regulations. Id. ¶ 26. Specifically, the Solums were in violation of Houston County ordinance § 0110.1303, subdivision 1(11), which required a non-farm dwelling, located on Class III soils, to be situated on at least forty contiguous acres of land. Scanlan Aff. ¶¶ 10, 18.

The Solums applied for a conditional-use permit on June 28, 2007. First Am. Compl. ¶ 27. Houston County denied the request on October 23, 2007. Id. On January 20, 2009, Houston County informed the Solums that they had sixty days to comply with the Houston County zoning ordinance (Compliance Notice). Id. ¶ 29. Options included razing the dwelling, relocating it roughly 50–100 feet to the next quarter-quarter section of land or assembling at least forty contiguous acres of land. Id.

The Solums applied for a use variance from the Houston County Board of Adjustment on March 19, 2009, fifty-eight days after receiving the Compliance Notice. Id. ¶ 33. The application was administratively denied on March 26, 2009. Id. ¶ 34. In response, the Solums returned their deed to Jared Solum, the prior owner of the property. Id. ¶ 41.

Plaintiffs Melvin Davy Jr. and Jean Davy

In approximately 1984, the Davys constructed an outbuilding apartment. ⁴Id. ¶ 52. The mother of Melvin Davy Jr. lived in the apartment until she moved to an assisted-living residence in Spring 2009. Id. ¶ 54. Although she intended to return to the outbuilding apartment, the Davys rented the apartment to a nonfamily member. Id. ¶ 57.

On September 30, 2009, Houston County sent the Davys a cease-and-desist letter demanding that they remove the renter and abstain from using the apartment. Id. ¶ 58. In response, the Davys and several supporters attended the Houston County Commissioners' meeting in September 2009. Id. ¶ 59.

The Davys appealed the cease-and-desist decision on January 15, 2010. Id. ¶ 61.⁵ The Houston County Planning Board rejected the appeal. Id. ¶ 64. The Davys then appealed to the Houston County Board of Appeals, and a public hearing was set for March 11, 2010. Id. ¶¶ 65, 67. Approximately fifty supporters attended the meeting, many of whom, the Davys allege, were “belittled or cut off” by the appeals board. Id. ¶ 68. The Board of Appeals denied the appeal. Id. ¶ 69.

On February 2, 2012, plaintiffs filed an amended complaint alleging violations under 42 U.S.C. § 1983. The Solums allege violations of their procedural due process and equal protection rights. The Davys allege violations of their free speech and equal protection rights. On February 2, 2012, Houston County filed a third-party complaint against Jared Solum, seeking indemnity or contribution in the event that Matthew and Beth Solum are successful in their claims against Houston County. Jared Solum moves to dismiss the third-party complaint. Houston County moves to dismiss plaintiffs' claims or, in the alternative, for summary judgment.

DISCUSSION

I. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material only when its resolution affects the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. See id. at 252, 106 S.Ct. 2505.

On a motion for summary judgment, the court views all evidence and inferences in a light most favorable to the nonmoving party. See id. at 255, 106 S.Ct. 2505. The nonmoving party, however, may not rest upon mere denials or allegations in the pleadings but must set forth specific facts sufficient to raise a genuine issue for trial. See Celotex, 477 U.S. at 324, 106 S.Ct. 2548. A party asserting that a genuine dispute exists—or cannot exist—about a material fact must cite “particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A). If a plaintiff cannot support each essential element of a claim, the court must grant summary judgment because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial. Celotex, 477 U.S. at 322–23, 106 S.Ct. 2548, 106 S.Ct. 2548.

II. Procedural Due Process

No state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “To prove a due process violation in a local land use decision the plaintiff must identify a protected property interest to which the Fourteenth Amendment's due process protection applies, and then demonstrate that the government action complained of is truly irrational, that is something more than ... arbitrary, capricious, or in violation of state law.” Snaza v. City of St. Paul, Minn., 548 F.3d 1178, 1182 (8th Cir.2008) (citations and internal quotation marks omitted). “A protected property interest is a matter of state law involving a legitimate claim to entitlement as opposed to a mere subjective expectancy.” Id. at 1182–83 (citation and internal quotation marks omitted).

The Solums argue a due process violation based on the refusal of Houston County to forward the Solums' use variance application to the board of adjustment. In support, they argue that the Houston County decision was “ ‘so corruptedby the personal motives of local government officials that due process rights are implicated.’ ” Pls.' Mem. Opp'n 22–23 (quoting Bituminous Materials, Inc. v. Rice Cnty., Minn., 126 F.3d 1068, 1071 (8th Cir.1997)). Plaintiffs' reliance on Bituminous is misplaced. First, it was decided in the context of substantive, and not procedural, due process. Moreover, the Bituminous court explained that a plaintiff cannot survive summary judgment by “alleging that a land use planning decisionmaker does not like the plaintiff.” Bituminous, 126 F.3d at 1071. Such an inquiry would “turn the federal courts into zoning boards of appeal.” Id. Therefore, the Solums have not established a protected property interest, and summary judgement as to their procedural due process claim is warranted.

Even assuming a protected property interest exists, summary judgment is also warranted because the Solums failed to avail themselves of the process afforded by Houston County. “In the zoning context ... procedural due process is afforded when the landowner has notice of the proposed government action and an opportunity to be heard.” Anderson v. Douglas Cnty., 4 F.3d 574, 578 (8th Cir.1993). Here, however, the Solums did not appeal Scanlan's administrative decision denying their variance request. And although the Houston County ordinance mandates referral of administrative decisions to the board of adjustment, the Solums also should have appealed the decision. See Scanlan Aff. Ex. 1, Section 0110.1104, subdiv. 2 (“Any aggrieved person ... objecting to the ruling of any administrative official ... shall have the right to appeal to the Board of Adjustment. Such appeal may be taken by any person aggrieved....”); Minn. Stat. § 394.27, subdiv. 5 (“The board of adjustment shall have the authority to order the issuance of variances, hear and decide appeals from and review any order, requirement, decision, or determination made by any administrative official charged with enforcing any ordinance....”). The Solums “cannot complain of a violation of procedural due process when [they have] not availed [themselves] of existing procedures.” Anderson, 4 F.3d at 578.

The Solums argue, however, that they were not required to exhaust administrative remedies prior to bringing suit. Specifically, the Solums explain that they were not required to exhaust their available postdeprivation remedies, since they were entitled to, but did not receive, predeprivation process. Pls.' Mem. Opp'n 24 (citing Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 928 (8th Cir.2009)). The Solums argument is unpersuasive. They were initially notified of their noncompliance on December 5, 2005. More than three years later, on January 20, 2009, Houston County provided the Solums an...