The Grove Assisted Living, LLC v. City of Frontenac, Missouri et al

Filing 25

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Dismiss, [Doc No. 3 ], is granted. IT IS FURTHER ORDERED that Count II of the Plaintiff's Petition is DISMISSED. IT IS FURTHER ORDERED that Plaintiff is granted 14 d ays from the date of this Opinion to file an Amended Complaint. IT IS FURTHER ORDERED that if the Amended Count II subsequently survives challenge, the Court will continue to hold Count II in abeyance until resolution of the State determination of Count I. ( Amended Complaint due by 9/15/2017.) Signed by District Judge Henry Edward Autrey on 9/1/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE GROVE ASSISTED LIVING, LLC,

Plaintiff,
vs.
CITY OF FRONTENAC, MISSOURI,
et al.,
Defendants.

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CASE NO. 4:16CV1783 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss, [Doc. No.
3]. Plaintiff opposes the Motion. For the reasons set forth below, the Motion will
be granted.
Introduction
Plaintiff owns land in the City of Frontenac, Missouri, which it wishes to
develop. Plaintiff filed three applications with the City of Frontenac seeking to
have the zoning classification of its property changed to allow for the development
of residential villas and a senior living residential community including an assisted
living facility. Plaintiff brought this suit in state court seeking a declaratory
judgment, and money damages under 42 U.S.C. § 1983. Defendants removed. On
April 6, 2017, the Court remanded Count I to the State Court as the state claim

substantially predominated over the federal claim; the Court declined to exercise
supplemental jurisdiction over that claim.
Facts and Background
Plaintiff’s State Petition alleges:
Plaintiff is a limited liability company organized and existing under the laws
of the State of Missouri. Defendant City of Frontenac, Missouri ["Defendant City"
or "Frontenac"] is a municipal corporation, a fourth class city and a political
subdivision of the State of Missouri. Defendant Keith Krieg ["Mayor"] was acting
as the Mayor for Defendant City. Defendants Chris Kehr, Tom O'Brien, Margot
Martin, Bud Guest, John T. O'Cormell, Mike Schoedel, David Bray and Brian
Warner at one time or another voted on the matters described herein as members of
the Frontenac Board of Aldermen ["Board"].
The approximately 9.6 acre property whose zoning classification is the
subject of the case at bar consists of four contiguous parcels of St. Louis County
real property situated within the corporate boundaries of the City of Frontenac,
Missouri ["Subject Property"], described as follows:
PARCEL ONE
10601 Clayton Road (5 acres)
St. Louis County Locator No. 20N640182
PARCEL TWO
10601A Clayton Road (2.39 acres)
St. Louis County Locator No. 20N640261
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PARCEL THREE
10601B Clayton Road (0.71 acres)
St. Louis County Locator No. 20N640281
PARCEL FOUR
10635 Clayton Road (0.95 acres)
St. Louis County Locator No. 20N640142
The Subject Property is situated within a rectangle bounded to the west by
Spoede Road and certain residential property described below (in Paragraph 10), to
the north by Interstate 64, to the east by the site of the City Hall and Public Works
complex of Defendant City (10555 Clayton Road - St. Louis County Locator No.
20M430261), and to the south by Clayton Road.
The property adjacent to the northern boundary of the Subject Property is
Interstate 64, an interstate highway which is part of the National Highway System
of the United States. The property adjacent to the southern boundary of the
Subject Property is Clayton Road. The property immediately to the east of the
Subject Property is the approximately 2.72 acre site of the Frontenac City Hall and
Public Works complex (10555 Clayton Road - St. Louis County Locator No.
20M430261). The zoning district regulation assigned to this 2.72 acre parcel by
Defendant City is "R-1" Residential.
The property immediately to the west of the Subject Property, and to the
East of South Spoede Road, consists of five residential parcels which are described
as follows:
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PARCEL "A"
1440 S. Spoede Road (1.04 acres)
St. Louis County Locator No. 20N640308
PARCEL "B"
1412 S. Spoede Road (1.95 acres)
St. Louis County Locator No. 20N640317
PARCEL "C"
1408 S. Spoede Road (0.93 acres)
St. Louis County Locator No. 20N640243
PARCEL "D"
1400 S. Spoede Road (1 acre)
St. Louis County Locator No. 20N640362
PARCEL "E"
1396 S. Spoede Road (1 acre)
St. Louis County Locator No. 19N320280
The original zoning district classification assigned to each of these
residential parcels by Defendant City was "R-1" residential. The City subsequently
changed the zoning district classification to "R-3" Villa Residence in 2016.
During the period between approximately 1935 and 2011, the Subject
Property served as the site of Ladue Early Childhood Center, including a school
building, a parking lot, and a soccer field. Since approximately June 2011, the
Subject Property has been vacant due to the construction, by the Ladue School
District, of a new Ladue Early Childhood Center at a Ladue Road property in
Creve Coeur purchased by the School District in 2010.

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Following the Ladue School District's vacation of the Subject Property in
June 2011, the School District received an offer from the Sansone Group proposing
a mixed-use development that would incorporate all of the property between
Clayton Road, Spoede Road, Interstate 64, and the Frontenac City Hall I Public
Works complex property. Uses for the Subject Property considered by the Sansone
Group included retail space, restaurants, office space, a lifetime fitness center and
senior housing. In response to local opposition to the commercial nature of the
project, the Sansone proposal was not submitted to the City.
Following the vacation of the Subject Property by the Ladue School District
in June 2011, Defendant City entered into a contract with PGA V Planners to
provide a planning analysis of the rectangular area of the City of Frontenac
bounded on the west by Spoede Road, on the South by Clayton Road, on the east
by the site of the Frontenac City Hall, and on the north by Interstate 64. On
September 28, 2012, PGAV Planners issued a seventeen-page "Clayton & Spoede
Land Use Analysis Memorandum", which included the following comment
regarding possible residential redevelopment of the Subject Property:
"The current zoning of the Area as R-1, One Acre Residential, is
certainly a plausible scenario for the Area given the proximity of large-lot
residential uses to the west and south. However, it is one that is not likely to
make economic or market sense. The costs associated with demolition of the
School District buildings will be substantial (even if there are no
environmental issues to contend with) and the topographic change means
that houses developed on the northern section of the Area will be in a
relative "hole" unless there is substantial fill brought on to the site. We also
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do not believe that lots which back to the highway and the sound wall along
it will be particularly desirable for the type and value of the homes that
would need to be built.
The Comprehensive Plan seems to recognize the need to treat this
location as unique. The Land Use Plan designates the Area as "Single
Family Residential- Planned". Page 32 of the Plan discusses the need to
provide alternative housing types, particularly for existing residents who
want to downsize but remain in the City. Villa-style units are also discussed
on that page, as well as the need to create Planned Residential Development
zoning provisions.
We believe that development of a mix of high-quality housing types
that might appeal to both seniors and empty nesters could be a good use of
the Area. Again, we would encourage the City to consider providing for
higher density housing that might include a "Gatesworth" style development
on the northern part of the site built on top of a parking structure, with
lower-density villa or townhouse style units on the southern half of the Area.
This would provide a mix of higher-end housing commensurate with the
other housing quality and type in the City."
Plaintiff is the owner under contract of the Subject Property since May 23,
2016. Prior to May 23, 2016 during the period of Plaintiff's 1st Rezoning
Application and Plaintiffs 2nd Rezoning Application, Plaintiff was an assignee of
Pulte Homes of St. Louis, LLC ["Pulte"], the owner under contract of the Subject
Property.
On May 5, 2014, George Stock and Associates Consulting Engineers, Inc.
["Stock"], as agent for Plaintiff, filed an "Application" with Defendant seeking to
have the zoning classification of the entire Subject Property, together with Parcels
D and E changed from "R-1" Residential to "PD" Planned Development
Residential ["1st Rezoning Application"]. 22. The purpose of the requested
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rezoning identified on the 1st Rezoning Application was development of "a
residential community with thirty (30) Villas and Thirty-Six (36) Townhomes" to
be known as "Frontenac Square", and an 86-bed Assisted Living Facility to be
known as "The Grove in Frontenac".
Section 405.220 of Defendant City's Zoning Regulations permits "persons or
entities having an ownership interest in properties within a particular zoning
district" to "amend, supplement, change, modify or repeal the boundaries,
restrictions and regulations" established by Defendant City's Zoning Regulations to
petition Defendant City. According to Sections 405.040 and 405.100 of Defendant
City's Zoning Regulations, the minimum lot size "per dwelling unit' within the "R1" Residential zoning district is one ( 1) acre.
As an outgrowth of Defendant City's adoption of the 2006 Comprehensive
Plan for Frontenac, whose recommendations were based on resident input, Section
405.090 of the Frontenac City Code was revised to include a "Planned
Development Residential" (PDR) District designation which expressly recognized
"single family attached villas", "single family attached townhomes'', and "senior
living community (when the size and character of the development is compatible to
the surrounding uses)" as permitted uses. As part of the same revision of Section
405.090, a "senior living community", when the size and character of the
development is compatible to the surrounding uses, was also recognized as a
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permitted use in the PDMXD "Planned Mixed Development" zoning district
classification.
Pursuant to Section 405.220 of Defendant City's Zoning Regulation,
Plaintiffs 1st Rezoning Application was initially submitted to the Planning and
Zoning Commission of Defendant City (the "P&Z Commission"] for its
recommendations and report.
Plaintiff’s 1st Rezoning Application was considered at the public meetings
of Defendant City's P&Z Commission on the following dates: June 12, 2014; June
24, 2014; July 22, 2014; August 26, 2014; September 23, 2014; November 12,
2014; and December 9, 2014.
During the period between June 12, 2014 and December 9, 2014, Plaintiffs
Proposed Development was revised and amended several times. As of December 9,
2014, the Proposed Development contemplated a development with 30 (thirty)
villas, 24 (twenty four) townhomes, and an 86 (eighty six) bed Assisted Living
Facility.
On November 6, 2014, Defendant City received a Memorandum (regarding
the requested rezoning and proposed redevelopment of the Subject Property by
Plaintiff and Pulte), prepared by Development Strategies (11/6/14), which contains
the following findings:
"1. The existing school building is not viable for reuse and redevelopment
for institutional uses given assumed acquisition and redevelopment costs.
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2. Mixed use would be the highest and best reuse of the property but the
community is seeking residential that is in accordance with the
Comprehensive Plan.
3. Developing the property for single family homes on one acre lots would
require sale prices in excess of $2 million, which would not be reasonable
given the existing traffic, highway noise, and non-residential nature of much
of the neighboring development.
4. The density and quality of proposed residential development is
appropriate and consistent with similar residential developments in West
County.
5. The proposed villas and townhouses will fill a need for housing products
that are not currently available in Frontenac.
6. The parking, as proposed for the villas and townhomes, meets industry
and local standards for this type of development.
7. The parking for the proposed assisted living facility is appropriate,
assuming formal agreements are in place to handle additional parking
demand for special events."
At its December 9, 2014 meeting, the P&Z Commission of Defendant City
voted 5 in favor to 1 opposed to recommend approval of the Application by the
Board.
Pursuant to Section 405.090 of Defendant City's Zoning Regulations, the
P&Z Commission of Defendant City prepared a written report of its findings with
respect to Plaintiff’s Rezoning Application, which included several "conditions"
upon which the recommendation of the Rezoning Application was predicated.
Pursuant to Section 405.220 of Defendant City's Zoning Regulation,
Plaintiffs 1st Rezoning Application was subsequently forwarded to the Board of
Defendant City for its review, and vote with respect to approval or denial.

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Plaintiff's 1st Rezoning Application was on the agenda, and considered, at
the public meetings of Defendant City's Board on the following dates: January 20,
2015 (public hearing); February 24, 2015 (Plaintiffs request continuance); March
31, 2015 (public hearing).
During the period between January 20, 2015 and March 31, 2015, at the
suggestion and recommendation of City officials, Plaintiff's Proposed
Development was further revised and amended.
At its May 19, 2015 meeting, the Board, by a vote of four (4) opposed and
two (2) in favor, voted against Bill No. 2015-1788, a proposed ordinance to rezone
the Subject Property from the "R-1" Residential zoning district classification to the
"PD" (PDR) Planned Development Residential zoning district classification. As of
May 19, 2015, the Rezoning Application contemplated a development with 36
(thirty six) villas, no townhomes, and a 108 (one hundred and eight) bed Assisted
Living Facility.
On September 9, 2015, Stock, as agent for Plaintiff, filed a new
"Application" with Defendant City seeking to have the zoning classification of the
entire Subject Property changed from " R-1 " Residential to "PD" Planned
Development Residential ["2"d Rezoning Application"]. The purpose of the
requested rezoning identified in the 2"d Rezoning Application was development of

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"a Senior Living Residential Community with thirty-four (34) Jack Arnold's
Townhomes, [and] ... a 131-Bed Senior Living Facility."
At the time Plaintiff filed its 2nd Rezoning Application, Section 405.090 of
Defendant City's Zoning Regulations, which establishes various land uses
appropriate for certain zoning district classifications within Defendant City,
expressly recognized "single family attached villas", "single family attached
townhomes", and "senior living community (when the size and character of the
development is compatible to the surrounding uses)" as permitted uses within
properties zoned "PD" Planned Development District (PDR) [Planned
Development Residential].
Pursuant to Section 405.220 of Defendant City's Zoning Regulation,
Plaintiff’s 2nd Rezoning Application was supposed to be submitted to the P&Z
Commission of Defendant City for its recommendation and report. The 2nd
Rezoning Application, however, was not submitted to the P&Z Commission at its
next regularly scheduled meeting because on September 15, 2015, the Board
approved Ordinance No. 2015-1767 imposing a 45-day, "moratorium on
redevelopment or change of use of property located within the Clayton Road
corridor from Lindbergh Boulevard to Spoede Road and between Clayton Road
and Interstate 64 ("Study Area") in order to conduct an area study and possible

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amendment to the comprehensive plan and zoning regulations and to request a
recommendation from the Planning & Zoning Commission for a more extended
moratorium on certain development activities in that study area."
On September 29, 2015, rather than consider the 2nd Rezoning Application
as required by Section 405.220 of Defendant City's Zoning Regulation, the P&Z
Commission considered the Board's recommendation for the aforesaid 45-day
moratorium but the motion to impose the moratorium died for lack of a second.
Thereafter, the City Attorney addressed the P&Z Commission and
recommended approval of a moratorium that would last for several months.
The P&Z Commission, over the objection of Plaintiff, recommended a six
month moratorium for the Study Area, notwithstanding the facts that (a) Plaintiff's
2nd Rezoning Application was filed with the City prior to any recommendation by
the Board for a moratorium that would impact the Subject Property; and (b)
Defendant City had already requested, and received from PGAV in September
2012, a professional analysis of Subject Property land use options.
On October 20, 2015, the Board enacted Ordinance 2015-1770, an ordinance
imposing a six-month moratorium on development or change of use of property
located within the Study Area, which includes the Subject Property
["Moratorium"].

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On February 19, 2016, after meeting with the P&Z Commission
Subcommittee appointed to review the 2006 comprehensive plan and the Study
Area, City Staff, including Building Commissioner/Zoning Administrator, John
Morgan and City Administrator, Bob Shelton authored a certain staff report on
Case No. PZ 111615-01 [the "Report"] that specifically (a) determined that, "any
low density residential including villas or townhomes is not economically feasible
[for the Subject Property]", and (b) recommended the Study Area as the site for an
"assisted living" facility.
According to the Report, the P&Z Commission Subcommittee appointed
pursuant to the Moratorium concluded that the vacant school building located on
the Subject Property is appropriate for redevelopment because it is obsolete. The
Subcommittee and City Staff further noted that the Subject Property, "is
appropriate for Planned Residential as defined in the 2006 Comprehensive Plan"
with "single family attached or detached villas of no more than two units"
appropriate "for the area fronting on Clayton Road" and "more dense residential as
allowed for in the Plan Development Residential (PDR) zoning classification of the
City of Frontenac Municipal Code" appropriate for "the property with the lower
elevation bordering I-64. The Report recommended the Board immediately
terminate the Moratorium set to expire on its own terms April 20, 2016.

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At its February 23, 2016 meeting, the P&Z Commission adopted the Report
as its official recommendation to the Board.
On March 9, 2016, rather than accept and adopt the recommendations of the
P&Z Commission in the Report, the Board instead called a special meeting in
order to initiate proposed amendments to the Planned Development District that
would delete the assisted living component from the Planned Development
Residential District; create a new R-3 Villa Residence Zoning District; and
unilaterally rezone the Subject Property to the newly created R-3 Villa Residence
Zoning District despite the determination by the P&Z Commission that such use
was not economically feasible for the Subject Property ["Board's 1st Rezoning
Application"].
On April 11, 2016, the P&Z Commission considered the Board's 1st
Rezoning Application to rezone the Subject Property, and moved to "drop" the
Board's 1st Rezoning Application by a unanimous vote of 7-0.
On April 19, 2016, notwithstanding the recommendation in the Report and
the P&Z Commission's April 11, 2016 decision to "drop" the Board's 151
Rezoning Application, the Board proceeded with its own application to amend the
Planned Development Residential ("PDR") Zoning District such that it deleted
from the permitted uses for the District, "senior living community"; created a new
R-3 Villa Residence Zoning District permitting single family villas and other
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permitted uses in the R-1 District; and rezoned the Subject Property to the newly
created R-3 Villa Residence Zoning District without the property owner's consent
or participation and despite the fact that Plaintiffs 2nd Rezoning Application had
been pending for six months.
On April 20, 2016, the Moratorium expired by its own terms. Directly
thereafter, the contract by which Plaintiff was seeking to purchase the Subject
Property from the Ladue School District expired.
Plaintiff entered into new negotiations with Ladue School District to
purchase the Subject Property and after a substantial increase in the purchase price
was able to enter into a new contract in order to pursue its plans for development.
On June 7, 2016, Stock, as agent for Plaintiff, filed a new "Application" with
Defendant seeking to have the zoning classification for the entire Subject Property
changed from its new designation of "R-3" Villa Residence to "PDMXD" Planned
Development Mixed Use District in order to" develop a Senior Living Community
with twenty-four (24) villas ... [and] ... a 100-Bed Senior Living Facility."
Section 405.220 of Defendant City's Zoning Regulations permits "persons or
entities having an ownership interest in properties within a particular zoning
district" to petition Defendant City to "amend, supplement, change, modify or
repeal the boundaries, restrictions and regulations" established by Defendant City's
Zoning Regulations.
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Defendant City's Zoning Regulations pertaining to the R-3 Villa Residence
zoning district do not recognize senior living facilities or communities as a
permitted use.
As an outgrowth of Defendant City's adoption of the 2006 Comprehensive
Plan for Frontenac, whose recommendations were based on resident input, Section
405.090 of the Frontenac City Code was revised to include a "Planned
Development Mixed Use" (PDMXD) District which expressly recognized "single
family attached villas", "single family attached townhomes'', and "senior living
community (when the size and character of the development is compatible to the
surrounding uses)" as permitted uses.
Notwithstanding the fact that on May 17, 2016, the Mayor and Board
reappointed Mark Richert to serve as Chairman of the P&Z Commission, on June
21, 2016, six of the seven P&Z Commission Members (including its Chair, Mark
Richert) that approved the Report and unanimously voted to "drop" the Board's 1st
Rezoning Application were removed from the Commission and replaced with new
members appointed by the Mayor and Board.
On June 21, 2016, in response to the 3rd Rezoning Application, the Board
recommended removal of "senior living community" from the permitted uses for
Planned Development Mixed Use District Regulations ("PDMXD") which

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recommendation was referred to the newly reconstituted P&Z Commission by a
vote of 5-1 ["Board's 2nd Rezoning Application"].
At the June 28, 2016 P&Z Commission meeting, all of the newly appointed
members voted in favor of tabling Plaintiff's previously filed 3rd Rezoning
Application seeking approval of a PDMXD zoning designation for a senior living
community, and once tabled, unanimously voted to recommend approval of the
Board's 2nd Rezoning Application designed to delete "senior living community"
from the permitted uses in the PDMXD regulations.
Thereafter, on July 19, 2016, the Board approved its own application in Bill
No. 2016-183 7 and thereby deleted "senior living community" from the permitted
uses for the PDMXD District. Bill No. 2016-1837 further amended Subsection
405.090(D)(3)(c) of Article II of Defendant City's Zoning Regulations by expressly
excluding "assisted living facilities" from the category of permitted "commercial
uses which are complementary to mixed residential/commercial developments."
At its July 26, 2016 meeting, the newly constructed P&Z Commission
removed Plaintiffs 3rd Rezoning Application from the table and promptly
recommended a denial thereof.
On August 16, 2016, the Board unanimously voted to deny Plaintiff Grove's
3rd Rezoning Application.

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In addition to the December 9, 2014 written Recommendation and Report of
the Planning and Zoning Commission and the February 19, 2016 Report , materials
made available to the Board of Aldermen of Defendant City prior to its March 9,
2016, April 19, 2016, July 19, 2016 and August 16, 2016 votes include:
A. the Clayton & Spoede Land Use Analysis Memorandum (9/8/1 2), prepared by
PGA V, which includes the comments regarding possible residential
redevelopment of the portions of the Subject Property formerly owned by the
Ladue School District and more fully enumerated in Paragraph 17 above.
B. a Memorandum (11/6/14) regarding Plaintiffs initial Rezoning Application
prepared by Development Strategies including the comments confirming the
appropriateness of a development including villas, townhouses and an assisted
living facility enumerated in Paragraph 27 above.
C. an additional Memorandum, by Development Strategies ( 4/4/ 15), which
contains the following finding:
"5. The revised site plan for the 11-acre property [i.e., the Subject Property, and
two adjacent one-acre parcels] complies with the Comp Plan and the Planned
Development Residential zoning."
D. a Memorandum (assessing traffic access and parking availability with respect to
Plaintiffs' proposed Subject Property redevelopment), by George Butler
Associates, Inc. (4/18/15).
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In Count II, Plaintiff seeks money damages under 42 U.S.C. § 1983.
Plaintiff contends that its Fifth and Fourteenth Amendment rights have been
violated under the due process and equal protection clauses. In that the Court has
remanded Count I, Defendant’s Motion now relates solely to Count II.
Motion to Dismiss Standard
The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim
is to test the legal sufficiency of a complaint so as to eliminate those actions
“which are fatally flawed in their legal premises and deigned to fail, thereby
sparing litigants the burden of unnecessary pretrial and trial activity.” Young v.
City of St. Charles, 244 F.3d 623, 627 (8th Cir. 2001) (citing Neitzke v. Williams,
490 U.S. 319, 326-27 (1989)). “To survive a motion to dismiss, a claim must be
facially plausible, meaning that the ‘factual content. . . allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.’” Cole
v. Homier Dist. Co., Inc., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The Court must “accept the allegations contained
in the complaint as true and draw all reasonable inferences in favor of the
nonmoving party.” Id. (quoting Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir.
2005)). However, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements,” will not pass muster. Iqbal, 556 U.S. at
678.
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Under Fed.R.Civ.P. 12(b)(6), a party may move to dismiss a claim for
“failure to state a claim upon which relief can be granted.” The notice pleading
standard of Fed.R.Civ.P. 8(a)(2) requires a plaintiff to give “a short and plain
statement showing that the pleader is entitled to relief.” Courts must assess the
plausibility of a given claim with reference to the plaintiff's allegations as a whole,
not in terms of the plausibility of each individual allegation. Zoltek Corp. v.
Structural Polymer Group, 592 F.3d 893, 896 n. 4 (8th Cir.2010) (internal citation
omitted). This inquiry is “a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. The
Court must grant all reasonable inferences in favor of the nonmoving party.
Lustgraaf v. Behrens, 619 F.3d 867, 872–73 (8th Cir.2010).
Discussion
Defendant argues that Count II must be dismissed because Plaintiff’s
allegations are insufficient to state a plausible claim. While several of Defendant’s
arguments have been rendered moot by the Court’s April 6, 2017 Opinion, the
Court agrees that as Count II stands, it fails to state a plausible claim.
Although Plaintiff argues that it is not stating an equal protection claim, the
Petition refers to the equal protection clause of the Fifth Amendment. Plaintiff
argues that it is not alleging a just compensation takings claim, but the allegations

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of its Petition do not clearly so state, based on the factual allegations which
Plaintiff sets out.
Plaintiff’s Petition states that Plaintiff has exhausted its administrative
remedies, however, the Petition does not set out what administrative remedies it
has exhausted and why it is not required to exhaust other remedies, as Defendant
correctly argues it must.
Moreover, Plaintiff’s Petition does not set forth in which capacity the
individual defendants are sued. Defendant is correct that if they are sued in their
official capacity, the claims against them are redundant of the claim against the
City of Frontenac, Missouri.
Conclusion
Count II of the Petition, which was filed in the State Court, fails to satisfy
the requirements of a federal Section 1983 claim. Under the standard of review, it
cannot survive Defendant’s challenge. Although Defendant requests the
opportunity to review a request to amend, the Court is of the opinion that
Defendant will not be prejudiced by allowing an amendment at this stage of the
litigation. Upon the filing of its amendment, Defendant will have the opportunity
to review it and proceed as it deems appropriate.
Accordingly,

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IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss, [Doc No.
3], is granted.
IT IS FURTHER ORDERED that Count II of the Plaintiff's Petition is
DISMISSED.
IT IS FURTHER ORDERED that Plaintiff is granted 14 days from the
date of this Opinion to file an Amended Complaint.
IT IS FURTHER ORDERED that if the Amended Count II subsequently
survives challenge, the Court will continue to hold Count II in abeyance until
resolution of the State determination of Count I.
Dated this 1st day of September, 2017.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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