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

Filing 44

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Dismiss, [Doc. No. 29 ], is granted. IT IS FURTHER ORDERED that Count II of the Plaintiffs First Amended Petition is DISMISSED. Signed by District Judge Henry Edward Autrey on 6/22/18. (KJS)

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

)
)
Plaintiff,
)
)
vs.
)
)
CITY OF FRONTENAC, MISSOURI, A
)
MUNICIPAL CORPORATION AND A
)
POLITAL SUBDIVISION OF THE STATE OF )
MISSOURI, AND ITS MAYOR KEITH
)
KRIEG AND BOARD OF ALDERMEN
)
CHRIS KEHR, TOM O'BRIEN, MARGOT
)
MARTIN, BUD GUEST, JOHN T.
)
O'CONNELL, MIKE SCHOEDEL, DAVID
)
BRAY, AND BRIAN WARNER,
)
)
Defendants.
)

Case No. 4:16-CV-1783 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s
First Amended Petition, [Doc. No. 29]. Plaintiff opposes the Motion. Having
determined that this Court has subject matter jurisdiction, and for the reasons set
forth below, the Motion will be granted based on a failure of Plaintiff to state a
claim upon which relief can be granted.

1

Facts and Background
The Court has previously summarized the facts alleged by Plaintiff in its
previous Opinion, Memorandum and Order granting Defendants’ Motion to
Dismiss, [Doc. No. 25].
Plaintiff’s amendments to the Petition include: 1) citing to the federal venue
statute [Doc. No. 26, ¶ 4]; stating the full name of PGAV (id. at ¶ 17); stating
Plaintiff’s option contract expired (id. at ¶ 19); adding the R-3 zoning districts do
not “expressly” recognize senior living facilities or communities as a permitted use
(id. at ¶ 57); removal of reference to the equal protection clause; claims that
Defendants cannot impose different standards than what is prescribed in R.S.Mo. §
89.010, et seq. (id. at ¶ 67); allegations against the Mayor and Board of Aldermen
(“Defendant Board Members”) in their individual capacities (id. at ¶ 67); expressly
stating “Plaintiff does not allege a just compensation takings claim (id. at ¶ 69);
allegations regarding the alleged exhaustion of administrative remedies (id. at ¶
69); that conduct was arbitrary, capricious, and unreasonable (id. at ¶ 70); and that
a delay in the approval process was designed to interfere with Plaintiff’s
contractual rights (id. at ¶ 70.H.).
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
2

“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. 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
3

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).
Further, this Court may conduct a rational basis review at the motion to
dismiss stage, as
the law is well settled in the Eighth Circuit that district courts may
conduct rational basis review at the motion to dismiss stage. Carter v.
Arkansas, 392 F.3d 965, 968 (8th Cir. 2004). The policy underlying
the law is logical: “because all that must be shown is any reasonably
conceivable state of facts that could provide a rational basis for the
classification, it is not necessary to wait for further factual
development in order to conduct a rational basis review on a motion to
dismiss.” Gilmore v. Cty. of Douglas, State of Neb., 406 F.3d 935, 937
(8th Cir. 2005) (internal quotations omitted).
Johnson v. City of Little Rock, 164 F. Supp. 3d 1094, 1100 (E.D. Ark. 2016); see
also Knapp v. Hanson, 183 F.3d 786, 789 (8th Cir. 1999) (“Additionally,
Appellants are incorrect in their contention that this issue cannot be decided on a
motion to dismiss”).
Plaintiff has failed to state a recognized claim under the Missouri
Constitution.
Plaintiff has alleged Defendants have violated the due process clause of the
Missouri Constitution, [Doc. No. 26, ¶¶ 66, 68, 70]. Plaintiff has conceded in its
Memorandum in Opposition that it does not seek any remedy under the Missouri
4

Constitution, [Doc. No. 26, p. 15]. As this claim is abandoned and as, unlike the
federal legislature’s enactment of 42 U.S.C. § 1983, Missouri has not enacted any
enabling statute for said provision, 1 allegations concerning the Missouri
Constitution fail to state a claim upon which relief may be granted.
Plaintiff has failed to state a claim under 42 U.S.C. § 1983 pursuant to the
Fifth and Fourteenth Amendments to the U.S. Constitution.
Section 1983 is a remedial statute allowing for a person acting under “color
of any statute, ordinance, regulation, custom, or usage, of a State or Territory or the
District of Columbia” to be held liable for the “deprivation of any rights,
privileges, or immunities secured by the Constitution and its laws.” 42 U.S.C. §
1983. The statute is “merely a vehicle for seeking a federal remedy for violations
of federally protected rights.” Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987).
In a § 1983 action, two essential elements must be present: (1) the conduct
complained of was committed by a person acting under color of state law; and (2)
the conduct complained of deprived a plaintiff of rights, privileges, or immunities
secured by the Constitution or laws of the United States. DuBose v. Kelly, 187
F.3d 999, 1002 (8th Cir. 1999). Therefore, in evaluating a § 1983 claim, the

1

See Johnson v. City of Hazelwood, 2014 WL 7338811, at *5 (E.D. Mo. Dec. 22, 2014); Moody v. Hicks, 956
S.W.2d 398, 402 (Mo.App. E.D.1997); see also Collins–Camden Partnership, L.P. v. County of Jefferson, 425
S.W.2d 210, 214 (Mo.App. E.D. 2014); USOC of Greater Mo. v. County of Franklin, 2008 WL 2065060, at *3
(E.D. Mo. May 14, 2008).

5

precise constitutional violation which is alleged must be identified. Rogers v. City
of Little Rock, Ark., 152 F.3d 790, 796 (8th Cir. 1998).
The Court will address Plaintiff’s failure to state a claim under each of the
three kinds of claims under 42 U.S.C. § 1983 which may be raised under the Due
Process Clause of the Fourteenth Amendment.
a. Violation of a right incorporated via the Bill of Rights;
b. Substantive due process regarding certain wrongful government actions;
and
c. Procedural due process regarding a deprivation of life, liberty, or
property without a fair procedure.
See Zinermon v. Burch, 494 U.S. 113, 125 (1990).
Plaintiff has failed to state a claim for violation of any incorporated
right.
The only other amendment alluded to in Plaintiff’s Amended Petition is the
Fifth Amendment, despite Plaintiff’s specific contention it does not purport to raise
a takings claim, [see, Doc. No. 26, ¶¶ 66–68]. Accordingly, Plaintiff fails to state a
claim upon which relief can be granted regarding the Fifth Amendment as the Fifth
Amendment’s due process clause applies only to federal entities. See Barnes v.
City of Omaha, 574 F.3d 1003, 1006, n.2 (8th Cir. 2009) (“The Fifth Amendment's
Due Process Clause applies only to the federal government or federal actions, and
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the Plaintiffs have not alleged that the federal government or a federal action
deprived them of property.”).
Plaintiff has failed to state a claim under 42 U.S.C. § 1983 pursuant to
the substantive due process clause.
As an initial matter, Plaintiff has conceded that it is not challenging any
claim under the substantive due process clause regarding any executive decision,
[Doc. No. 38, p. 22]. Accordingly, this Court reviews the alleged legislative
actions pursuant to Griswold v. Connecticut, 381 U.S. 479 (1965)) rather than
Rochin v. California, 342 U.S. 165 (1952) (executive action). See, Shrum ex rel.
Kelly v. Kluck, 85 F.Supp.2d 950, 960 (D. Neb. 2000) (quoting County of
Sacramento v. Lewis, 523 U.S. 833 (1998)).
The substantive due process clause regarding legislative action requires a
two-step process where Plaintiff must show the following: 1) an unenumerated
fundamental right (one which is, objectively, deeply rooted in this Nation’s history
and tradition and implicit in the concept of ordered liberty such that neither liberty
nor justice would exist if it were sacrificed; and 2) the law infringing on any
fundamental right survives strict scrutiny—the law must be narrowly tailored to
serve a compelling state interest. See Gallagher v. City of Clayton, 699 F.3d 1013,
1017 (8th Cir. 2012); see also Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)
(“Property interests, of course, are not created by the Constitution. Rather, they are
7

created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law -- rules or understandings that
secure certain benefits and that support claims of entitlement to those benefits.”).
Plaintiff has not argued it has any fundamental liberty interest at stake, [Doc. No.
38, p. 16]. Accordingly, the legislative acts at issue need only be “rationally
related to legitimate government interests.” Wash. v. Glucksberg, 521 U.S. 702,
728 (1997). To prevail on a facial challenge, the plaintiffs bear the burden of
“establish[ing] that no set of circumstances exist under which [the legislation]
would be valid.” Karsjens v. Piper, 845 F.3d 394, 409 (8th Cir. 2017). This
rational or “[r]easonable relationship review is highly deferential to the
legislature.” Id. Under a rational basis review,
a court must reject an equal protection challenge to a statutory
classification 'if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification. Indeed, a
legislative choice . . . may be based on rational speculation
unsupported by evidence or empirical data. Thus, because all that
must be shown is any reasonably conceivable state of facts that could
provide a rational basis for the classification, it is not necessary to
wait for further factual development. In other words, a district court
may conduct a rational basis review on a motion to dismiss.
Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004) (internal quotations and
citations omitted); see also DeCrow v. N.D. Workforce Safety & Ins. Fund, 864
F.3d 989, 992 (8th Cir. July 31, 2017) (“A rational basis that survives equal

8

protection scrutiny also satisfies substantive due process analysis.”) (internal
quotations and citation omitted).
With these standards in mind, the Court also must reconcile the issues
presented in this case. “[Z]oning power is not infinite and unchallengeable; it 'must
be exercised within constitutional limits.' ” Schad v. Borough of Mount Ephraim,
452 U.S. 61, 68 (1981) (quoting Moore v. E. Cleveland, 431 U.S. 494, 514 (1977)
(Stevens, J., concurring)).
Though Chesterfield Dev. Corp. v. Chesterfield, 963 F.2d 1102 (8th Cir.
1992) was decided before County of Sacramento v. Lewis, 523 U.S. 833 (1998)),2
the case is instructive. The Chesterfield Court addressed substantive due process
claims by a corporation alleging the City of Chesterfield sought to enforce an
invalid zoning plan and ordinance depriving the corporation of property without
due process of law. Chesterfield. 963 F.2d at 1103. Specifically, the City of
Chesterfield failed to provide proper notice before adopting a comprehensive
zoning plan and a zoning ordinance, failed to file the plan with the appropriate
Recorder of Deeds Office, and therefore acted in a way that rendered the plan
invalid under Missouri law. Id. The corporation entered into a contract to buy real
property in the City of Chesterfield, contingent upon the property’s being rezoned
by the City of Chesterfield. Id. The corporation filed a petition for rezoning which
2

Chesterfield was recently cited with approval by the Eighth Circuit in Azam v. City of Columbia Heights, 865 F.3d
980, 986 (8th Cir. July 31, 2017).

9

was denied by the City of Chesterfield City Council. Id. As a result, the
corporation was unable to buy the real property. Id. United States District Judge
Hamilton dismissed the complaint for failure to state a claim. Id.
The Eighth Circuit affirmed dismissal of the complaint, holding a federal
court “should not . . . sit as a zoning board of appeals[,]” that the violation of state
law alone (even if done so knowingly and in bad faith) is insufficient to allege a
substantive due process claim arising out of a zoning dispute, and that plaintiff’s
allegations were not the “kind of ‘truly irrational’ governmental action which gives
rise to a substantive-due-process claim.” Id. at 1104–05 (first quotation of
Creative Environments, Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982)). It is
not enough that a claim alleges “arbitrary, capricious, or [conduct] in violation of
state law.” Id. at 1104.
The Third Circuit Court of Appeals has stated complaints regarding certain
kinds of actions, including “delay[ing] certain permits and applications,” were
“examples of the kind of disagreement that is frequent in planning disputes.” See
CEnergy-Glenmore Wind Farm #1, LLC v. Town of Glenmore, 2013 WL3354511
(E.D. Wis. July 3, 2013) (citing Eichenlaub v. Twp. Of Indiana, 385 F.3d 274, 286
(3d Cir. 2004)), aff’d. 769 F.3d 484 (7th Cir. 2014). Specifically, the dispute in
Eichenlaub pertained to a “contentious zoning dispute” between a family-owned
business and the Township of Indiana, PA, involving substantive due process and
10

equal protection allegations. Eichenlaub, 385 F.3d at 277. The court found there
were no allegations of corruption or self-dealing on the part of the township when
addressing the redevelopment of seven lots of land, and found the district court did
not abuse its discretion in dismissing plaintiff’s substantive due process claim. Id.
This holding has been followed by other District Courts. See, e.g., CEnergyGlenmore, 2013 WL 3354511 at * 5 (“If inaction and delay on the part of
government officers and representatives is enough to shock the judicial conscience,
the sea of substantive due process claims would flood the courts beyond what even
the most vociferous proponents of substantive due process could imagine.”).
Plaintiff allege that on September 15, 2015, the Board approved an
ordinance imposing a forty-five 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 amendment to
the comprehensive planning 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.
[Doc. No. 26, ¶ 40]. On September 29, 2015, the P&Z recommended an extension
of the moratorium for a six-month period (id. at ¶¶ 41–43), which was approved by
the Board via ordinance on October 20, 2015 (id. at ¶ 44). On April 11, 2016, the
Board removed “senior living community” from Planned Zoning District (“PDR”)
11

(id. at ¶ 51), and Plaintiff fails to allege Plaintiff pursued the second application to
a vote by the Board after the expiration of the moratorium and removal of “senior
living community” from the permitted uses of PDR.
Plaintiff’s third application was alleged to have been filed on or about June
7, 2016. Am. Pet. ¶ 55. On June 21, 2016, the Board referred the matter to the
Planning and Zoning Commission to consider removing “senior living facility”
from permitted uses. Id. at ¶ 60. On June 28, 2016, the P&Z recommended
removal of “senior living community from the permitted uses in the PDMXD
regulations. Id. at ¶ 61. On July 19, 2016, the Board passed an ordinance
removing “senior living community” from the permitted uses contained in
PDMXD (id. at ¶ 62). On July 26, 2016, the P&Z recommended denial of
Plaintiff’s third application, and on August 16, 2016, the Board unanimously voted
to deny Plaintiff’s third application (Id. at ¶¶ 63–64).
Plaintiff has alleged challenges to delays in considering rezoning
applications (including the imposition of a moratorium), 3 the removal of language
from the PDR and PDMXD ordinances (in order to defeat Plaintiff’s pending
application), the replacement of P&Z members, taking the rezoning applications
out of order, rezoning the property without its consent or the owner’s consent with

3

Plaintiff does not specify what delay resulted in removal of certain permitted uses, and Plaintiff did not allege the
removal of any permitted uses in the first application.

12

a pending application, 4 delaying the process to interfere with contractual rights,
and denying Plaintiff’s rezoning applications. Id. at ¶ 71.
As a matter of law at the pleadings stage, the subject legislative actions meet
the highly deferential rational basis review in that the actions were reasonably
related to legitimate government interest. Specifically:
- There was a rational basis, as stated in both the ordinances and public
meetings for the passage of a moratorium, to assist in providing a proper
land use study, effective community engagement, comprehensive plan
update and design of any necessary new zoning regulations to proceed in
an orderly and efficient manner, [see, Doc. No. 26, ¶¶ 70.A., 70.D.,
70.H., and 70.I.]; 5

4

Plaintiff has not alleged how it has standing to challenge rezoning the property without the owner’s consent, or
how rezoning the property without its consent affected its rezoning applications.
5
All exhibits referred hereinafter refer to public records attached by Defendants based on the number assigned by
Defendants.
See ex. 1, Ordinance No. 2015-1768 (forty-five day moratorium with purposes stated); ex. 2, Sept. 15, 2015, Board
Meeting Minutes (providing public discussion for reasons for passing forty-five day moratorium); ex. 3, Sept 29,
2015, P&Z Meeting Minutes (providing discussion for reasons for passing motion to recommend extension of
moratorium for six months), ex. 4, Ordinance No. 2015-1770 (extending moratorium to six months with purposes
stated); ex. 5, Oct. 20, 2015, Board Meeting Minutes (providing public discussion for reasons for extending
moratorium to six months); ex. 6, Feb. 23, 2016, Board Meeting Minutes (providing public discussion for reasons to
end moratorium on originally scheduled expiration date).

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- There was a rational basis, as stated in both the ordinances and public
meetings, to remove “senior living community” from the permitted uses
for the PDR and PDMXD regulations, [see, Doc. No. 26, ¶¶ 70.B.]; 6
- There was a rational basis, as stated in the public meeting minutes, for
the Mayor to replace six of the seven members of the P&Z, as the term
limits members had expired, [see, Doc. No. 26, ¶¶ 70.C.]; 7
- There was a rational basis, as stated in the meeting minutes and
ordinance, to rezone the subject property from R-1 to R-3 classification
in light of market support and the City’s vision with respect to its
comprehensive plan, [see, Doc. No. 26, ¶¶ 70.A., 70.E., 70.F., and
70.G.]; 8 and
6

See ex. 7, Ordinance No. 2016-1782 (removing “senior living community” from PDR classification to maintain
essential character of classification, finding professional care facilities are more akin to commercial rather than
single family residences, etc.); ex. 8, Marc. 9, 2016, Board Meeting Minutes (referring matter to remove “senior
living community” PDR classification to P&Z for recommendation); ex. 9, Apr. 11, 2016, P&Z Minutes (no action
taken until plan comes forward and leave to Board); ex. 10, Apr. 19, 2016, Board Meeting Minutes (providing
discussion for reasons for removing “senior living facility” from PDR classification); ex. 11, Ordinance No. 20161798 (removing “senior living community” from PDMXD classification to be clear regarding the essential character
of the classification, senior living communities are ill suited to mixed use developments the City seeks to foster by
its zoning standards, etc.); ex. 12, June 21, 2016, Board Meeting Minutes (referring matter to remove “senior living
community” PDMXD classification to P&Z for recommendation); ex. 13, June 28, 2016, P&Z Minutes (providing
discussion and unanimous vote to remove “senior living community” from PDMXD classification); ex. 14, July 19,
2016, Board Meeting Minutes (voting to remove “senior living community” from PDMXD classification).
7
Ex. 15, May 17, 2016, Board Meeting Minutes (discussing question on term limits of P&Z members); ex. 12, June
21, 2016, Board Meeting Minutes (containing appointments of five members to P&Z); ex. 16, Roster of Planning &
Zoning Commission dated July 10, 2015 (showing expiration dates for five P&Z members by June 30, 2016, with
addresses, numbers, and e-mail addresses redacted) ; ex. 17, Ordinance No. 2010-1630 (stating no resident member
may serve for terms of more than four years each).
8
Ex. 18, Ordinance No. 2016-1783 (rezoning subject property from R-1 to R-3 classification, finding market
support for rezoning and rezoning accomplished vision expressed in Comprehensive Plan); ex 8, Mar. 9, 2016,
Board Meeting Minutes (referring matter to rezone R-1 to R-3 classification to P&Z for recommendation); ex. 9,
Apr. 11, 2016, P&Z Minutes (recommending rezoning subject property from R-1 to R-3 classification); ex. 10, Apr.
19, 2016, Board Meeting Minutes (providing discussion for reasons for rezoning subject property from R-1 to R-3
classification).

14

- There was a rational basis, as stated in the meeting minutes, for the
denials of Plaintiff’s first and third applications to rezone the subject
property (Plaintiff did not pursue the second application to a vote after
the moratorium was lifted). Specifically, the first was supported by
extensive discussion (including exhibit B to the minutes weighing “pros”
and “cons”).9 The vote to deny the third application was reasonable to a
legitimate government purpose as the assisted living facility (senior
living community) had been specifically removed from the PDMXD
classification, [see, Doc. No. 26, ¶¶ 70.J.]. 10
With respect to any delay or the imposition of a moratorium, Chesterfield,
Eichenlaub, and CEnergy-Glenmore are instructive to show no fundamental right
has been violated. See also Ecogen, LLC v. Town of Italy, 438 F.Supp.2d 149,
152–53 (W.D.N.Y. 2006) (affirming dismissal finding facial challenge failed
9

Ex. 19, June 12, 2014, P&Z Minutes (discussing concerns including density of proposed development with
addresses, numbers, and e-mail addresses redacted); ex. 20, June 24, 2014, P&Z Minutes (further consideration
regarding the proposed development); ex. 21, July 22, 2014, P&Z Minutes (concerns regarding aesthetics, density,
parking, etc.); ex. 22, Aug. 26, 2014, P&Z Minutes (concerns regarding density, etc.); ex. 23, Sept. 23, 2014, P&Z
Minutes (density, location of proposed assisted living facility, aesthetics, traffic, parking, etc.); ex. 24, Nov. 12,
2014, P&Z Minutes (report regarding parking and density questioned, discussion regarding roof height and sight
distance, green space, setbacks, etc.); ex. 25, Jan. 20, 2015, Board Meeting Minutes (concerns regarding density);
ex. 26, Feb. 17, 2015, Board Meeting Minutes (further discussion, including suggestion for survey among residents);
ex. 27, Mar. 31, 2015, Board Meeting Minutes (concerns regarding traffic, setbacks, ingress and egress, grading,
location of proposed assisted living facility, further statements in support and in opposition of the rezoning); ex. 28,
Apr. 21, 2015, Board Meeting Minutes (concerns regarding “traffic, parking, number of employees, the comp plan
and the finances”); ex. 29, May 19, 2015, Board Meeting Minutes (containing exhibits A and B, read into the record,
weighing of pros and cons, vote 4-2 denying Plaintiff’s first application to rezone the subject property).
10
Ex. 30, July 26, 2016, P&Z Minutes (referencing removal of “senior living community” and how third application
did not fit within scope of PDMXD classification, unanimously recommending denial of third application); ex. 31,
Aug. 16, 2016, Board Meeting Minutes (statement by Alderperson David Bray as an exhibit to the minutes, finding
commercial zoning elsewhere could potentially allow for the development, recommendation by P&Z stated,
unanimously denying third application).

15

because the moratorium was not so egregious as to violate the substantive due
process clause and that two-year duration of moratorium on the construction of
wind turbine towers, relay stations, and or other support facilities was reasonable);
Bronco’s Entm’t v. Charter Twp. Of Van Buren, 421 F.3d 440, 443 (6th Cir. 2005)
(finding 182-day moratorium regarding moratorium on acceptance of new plans to
open topless bar was of reasonably short duration and did not violate plaintiff’s due
process rights).
Plaintiff’s new allegations in the Amended Petition regarding a delay
intended to interfere with contractual rights should be dismissed for the same
reasons, [see, Doc. No. 26, ¶¶ 70.H]. The Supreme Court has “repudiated the
Lochner v. New York, 198 U.S. 45. . . (1905) and Adkins line of cases that upheld
the liberty of contract as an interest protected by substantive due process.” Prime
Healthcare Servs. v. Harris, 216 F.Supp.3d 1096, 1112 (S.D. Cal. 2016); see also
Washington v. Glucksberg, 521 U.S. 702, 727 (1997) (history of substantive due
process fundamental rights); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 400
(1937) (rejecting Lochner era holdings). Further, to the extent Plaintiff purports to
state a claim under the Contracts Clause, courts have found allegations regarding a
public entity’s zoning ordinances do not affect the contractual obligations between
a developer and a third-party for purposes of the Contracts Clause. Two Tenn.,
LLC v. City of N. Little Rock, 2006 WL 2460926, at * 2 (E.D. Ark. Aug. 23, 2006);
16

see also Quality Refrigerated Servs., Inc. v. City of Spencer, 908 F.Supp. 1471
(1492) (N.D. Iowa 1995); Bannum, Inc. v. City of St. Charles, No. 90-0667-C(4),
1992 WL 521779, at * 4 (E.D. Mo. Oct. 15, 1992) (“The zoning ordinance acted
solely on the property, not on the terms of the contract, and therefore does not
impair any contractual obligations.”) (aff’d, 2 F.3d 267 (8th Cir. 1993); Metro. St.
Louis Sewer Dist. v. Ruckelshaus, 590 F.Supp. 385, 389 (E.D. Mo. 1984) (“. . . the
challenged law must act on the contract itself as distinguished from the property
which is the subject of the contact.”).
Plaintiff’s allegation that Defendants’ actions regarding zoning and rezoning
were “truly irrational” constitutes an argumentative legal conclusion that should
not be accepted by this Court (see Iqbal, 556 U.S. at 678). See, Chesterfield, 963
F.2d 1102, 1104 (“An example [of a truly irrational government action] would be
attempting to apply a zoning ordinance only to persons whose names begin with a
letter in the first half of the alphabet.”). Plaintiff has no fundamental right in the
order in which pending matters will be considered by the Board, and even
allegations regarding “knowingly enforce[ing an] invalid zoning in bad faith” or
that the ordinances were “in violation of state law” are insufficient to allege a
substantive due process claim. Id. at 1105; [Doc. No. 26, ¶¶ 57–58 (alleging
Defendants’ departure from Chapter 89.010 et seq. R.S.Mo)]; see also, Prewitt v.
Camden Cty., 2010 WL 3927807, at * 9 (W.D. Mo. Oct. 4, 2010) (Reexamination
17

of decisions denying rezoning applications “would convert the Due Process Clause
into a ‘constitutional Administrative Procedures Act setting up the federal courts as
a forum for review of every run-of-the-mill land-use dispute.’”) (quoting Lemke v.
Cass County, 846 F.2d 469, 472 (8th Cir. 1987) (Arnold, J., concurring)). In
addition, Plaintiff has no fundamental right in the Mayor’s replacement of P&Z
members.
As these legislative actions do not violate any rights of Plaintiff, Count II of
Plaintiff’s First Amended Petition should be dismissed for failure to state a claim
regarding the substantive due process clause.
Plaintiff has failed to state a claim upon which relief can be granted
regarding the procedural due process clause.
“To assert a claim for a violation of procedural due process, the plaintiff
must allege ‘(1) he had a life, liberty, or property interest protected by the Due
Process Clause; (2) he was deprived of this protected interest; and (3) the state did
not afford him adequate procedural rights prior to depriving him of the property
interest.’” Harrington v. Seward Cty., 2017 WL 1080931, at * 7 (D. Neb. Mar. 22,
2017) (quoting Stevenson v. Blytheville Sch. Dist. #5, 800 F.3d 955, 965–66 (8th
Cir. 2015)). “The procedural due process requirement of notice and hearing is not
applicable to a legislative body in the performance of its legislative functions.”
Q.C. Constr. Co. v. Gallo, 649 F. Supp. 1331, 1335 (D.R.I. 1986); (citing North
18

Laramie Land Co. v. Hoffman, 268 U.S. 276, (1925) and Golden Gate Corporation
v. Sullivan, 112 R.I. 641, 314 A.2d 152 (1974)); see also River Park v. City of
Highland Park, 23 F.3d 164, 166 (“We know from Eastlake v. Forest City
Enterprises, Inc., 426 U.S. 668 [] (1976), that the procedures ‘due’ in zoning cases
are minimal.”).
In Harrington, the plaintiffs sought to potentially buy land for the purpose of
operating an adult entertainment juice bar. Harrington, 2017 WL 1080931 , at *1.
Though the zoning ordinance in effect at the time specifically excluded adult
entertainment venues, a zoning administrator assured plaintiffs the respective
powers would approve an application for rezoning. Id. Plaintiffs submitted a
petition for rezoning and a conditional use permit. Id. at *1. Plaintiffs alleged the
county intentionally delayed his application, held secret meetings, and passed a
new ordinance further regulating adult establishments. Id. at *2. Plaintiffs alleged
the new ordinance was specifically designed to prohibit plaintiffs from opening
and operating the juice bar, and that they were required to relinquish their purchase
option for the subject property. Id. The district court granted the county’s motion
to dismiss plaintiff’s claims regarding the procedural due process clause. 11 The
Harrington Court pointed out plaintiffs had to have “a constitutionally cognizable
property interest in a right or a benefit” in the event plaintiffs had “a legitimate
11

The Harrington Court found plaintiffs did not clearly allege a substantive due process claim, but stated such a
claim would be dismissed even if stated. Id. at 19 n.5.

19

claim of entitlement to it.” Id. at *9. This required that plaintiffs “clearly must
have more than an abstract need or desire and more than a unilateral expectation of
it.” Id. at *7. The court rejected plaintiffs pleaded such a protectable property
interest, as “nothing in the County’s 2007 ordinance entitled Harrington to believe
that the County would—much less must—approve his application. Id. (original
emphasis) (quoting Walker v. City of Kansas City, Mo., 911 F.2d 80, 94 (8th Cir.
1990)). Further, the court stated, “And because Harrington had no legitimate
expectation of entitlement to rezoning or conditional use, it follows that he did not
have a constitutionally protected interest in exercising his option to purchase the
property.” Id. at *8 (citing Smith-Berch, Inc. v. Baltimore County, 68 F. Supp. 2d
602, 628 (D. Md. 1999) (finding no property interest when lease was allegedly
"forcibly forfeited" because the contingency of local zoning permission to operate
the desired business was denied)).
Similarly, in Prewitt, plaintiffs alleged they had a constitutionally-protected
property interest in two rezoning applications which were denied and an option
contract which failed due to the denial of their rezoning applications. Prewitt,
2010 WL 3927807at *1–*14 (W.D. Mo. Oct. 4, 2010). The district judge found
plaintiffs did not have a constitutionally-protected property interest in the rezoning
of the property, as “nothing in the law entitled Prewitt to believe that Defendants
‘would—much less must—approve his application.’” Id. at *8 (quoting Walker v.
20

City of Kansas City, Mo., 911 F.2d 80, 94 (8th Cir. 1990)); see also Demien
Constr. Co. v. O'Fallon Fire Prot. Dist., 72 F. Supp. 3d 967, 973 (E.D. Mo. 2014)
(finding invitation to bid did not result in a legitimate claim of entitlement to an
award of a contract).
Here, Plaintiff has not sufficiently pleaded any of the elements of a
procedural due process claim. It has not pleaded the Board had substantive
limitations on official discretion when the Board considered Plaintiff’s applications
for rezoning. See Walker, 911 F.2d at 94. Indeed, though an ordinance may state,
“In the interpretation and application of the provisions of this Chapter, such
provisions shall be held to be the minimum requirements adopted for the
promotion of health, safety, morals, or the general welfare of the community,”
such do not constitute substantive limitations “necessary to call the Due Process
Clause into play.” Id. Further, Plaintiff has alleged it voiced an objection to the
moratorium [Doc. No. 26, ¶ 43], and that the applications received a vote regarding
the first and third applications. Plaintiff did not allege it pursued the second
application to a vote (as the ordinance had changed), and thus (even further than
argued above) could not state Defendants deprived Plaintiff of any protectable
interest. Finally, Plaintiff has not identified what procedural rights would be
adequate prior to depriving it of any interest, or the source of the same.

21

Accordingly, Plaintiff has failed to state a claim regarding the procedural due
process clause, Count II is accordingly dismissed.
Defendant Board Members are entitled to qualified immunity regarding
the alleged conduct.
Federal law provides that government officials engaging in discretionary
functions have qualified immunity from suits in their individual capacities for
money damages, unless their actions violate clearly established statutory or
constitutional rights of which a reasonable person would have known. Qualified
immunity shields public officials and reduces “the risks that fear of personal
monetary liability and harassing litigation will unduly inhibit [public] officials in
the discharge of their duties.” Anderson v. Creighton, 483 U.S. 635, 638 (1987).
The applicability of qualified immunity is a question of law and, “the burden
is on the plaintiff to plead and, if presented with a properly supported motion for
summary judgment, to present evidence from which a reasonable jury could find
the defendant [public official] has violated the plaintiff’s constitutional rights.”
Moore v. Indehar, 514 F.3d 756, 764 (8th Cir. 2008). (Emphasis in original) There
is a two-part inquiry to determine whether a § 1983 action can proceed in the face
of an assertion of qualified immunity. Akins v. Epperly, 588 F.3d 1178, 1183 (8th
Cir. 2009). The first part is whether the government official’s conduct violated a
constitutional right. James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir.
22

2006); Burton v. Richmond, 370 F.3d 723, 727 (8th Cir. 2004). The second part is
to determine whether the right was clearly established. James, 458 F.3d at 730;
Burton, 370 F.3d at 727. If the answer to either question is no, then the Board
Members are entitled to qualified immunity. Keil v. Triveline, 661 F.3d 981, 985
(8th Cir. 2011). The Court may exercise its sound discretion in deciding which of
these two parts should be addressed first. Pearson v. Callahan, 555 U.S. 223, 236
(2009).
Individual defendants are entitled to qualified immunity unless their alleged
conduct violated “clearly established [federal] statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). The law is “clearly established” if it gives the defendant official
“fair warning” that his conduct violated an individual’s rights when the official
acted. Hope v. Pelzer, 536 U.S. 730, 741 (2002). In other words, a reasonable
official would understand that his conduct violated the law. Qualified immunity
allows public officials “to make reasonable errors so they do not always ‘err on the
side of caution’” for fear of being sued. Habiger v. City of Fargo, 80 F.3d 289,
295 (8th Cir. 1996) (internal citation omitted). Qualified immunity provides
“ample room for mistaken judgments” by protecting “all but the plainly
incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.
335, 343 (1986). “Although the defendant bears the burden of proof for this
23

affirmative defense [of qualified immunity], the plaintiff must demonstrate that the
law was clearly established.” Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th
Cir. 2014).
As the case law discussed above indicates, the law regarding whether the
time between the applications and any determination, the moratorium, the decision
to rezone the subject property, the decisions to deny Plaintiff’s applications to
rezone, the replacement of P&Z members, and the amendments to the ordinances
was not clearly established to have constituted a violation to Plaintiff’s due process
rights (either substantive or procedural). As the circumstances alleged by Plaintiff
do not constitute any clearly established fundamental right or protectable interest
violated in a truly irrational or conscience-shocking way, Defendant Board
Members are entitled to qualified immunity. 12
Defendant Board Members are entitled to absolute (legislative) immunity
regarding the alleged conduct.
As the Eighth Circuit has summarized:
After noting that state and regional legislators possessed
absolute immunity for their legislative activities, the Supreme Court
held in Bogan v. Scott-Harris that “local legislators are likewise
absolutely immune from suit under § 1983 for their legislative
activities.” 523 U.S. at 49. “Regardless of the level of government, the
exercise of legislative discretion should not be inhibited by judicial
12

To the extent Plaintiff’s Amended Petition can be construed to allege the City was deliberately indifferent to any
rights (Doc. No. 26, ¶ 72), the City is entitled to dismissal as the rights of which Plaintiff complains were not clearly
established at the time of the alleged conduct. Veatch v. Bartels Lutheran Home, 627 F.3d 1254, 1259 (8th Cir.
2010); Szabla v. City of Brooklyn Park, Minnesota, 486 F.3d 385, 394 (8th Cir. 2007).

24

interference or distorted by the fear of personal liability.” Id. at 52.
This “immunity attaches to all actions taken ‘in the sphere of
legitimate legislative activity.’” Id. at 54 (quoting Tenney [v.
Brandhove], 341 U.S. [367, 376 (1951)].
“When determining whether an act is legislative, the Supreme
Court applies a functional test.” Leapheart v. Williamson, 705 F.3d
310, 313 (8th Cir. 2013). Under this test, “‘[w]hether an act is
legislative turns on the nature of the act, rather than on the motive or
intent of the official performing it.’” Id. (alteration in original)
(quoting Bogan, 523 U.S. at 54). “A legislator’s potential or alleged
motives are ‘wholly irrelevant to [the] determination of whether [a
legislator is] entitled to legislative immunity.’” Id. at 313–14
(alterations in original) (quoting State Emps. Bargaining Agent Coal.
v. Rowland, 494 F.3d 71, 90 (2d Cir. 2007)). Therefore, the primary
question is “whether, stripped of all considerations of intent and
motive, [the] actions were legislative.” Bogan, 523 U.S. at 55.
Certain actions—such as voting for an ordinance—are by their
nature “quintessentially legislative.” Id. At the most basic level,
“[l]egislation . . . looks to the future and changes existing conditions
by making a new rule to be applied thereafter to all or some part of
those subject to its power.” Leapheart, 705 F.3d at 313 (second
alteration in original) (quoting Prentis v. Atl. Coast Line Co., 211 U.S.
210, 226, 29 S. Ct. 67, 53 L. Ed. 150 (1908)) (internal quotation
marks omitted).
Young v. Mercer Cnty. Comm’n, 849 F.3d 728, 733 (8th Cir. 2017) (finding
commissioners were entitled to legislative immunity for passing 911 ordinance).
The Eighth Circuit has held where the district court has found the passage of a
zoning ordinance to be a legislative act, legislative immunity barred suit against
municipal legislators. Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 613
(8th Cir. 1980).
25

Here, Plaintiff has alleged ten different aspects in which they raise “a facial
attack on a final legislative decision.” [Doc. No. 26, ¶ 69]. These include
complaints regarding voting to rezone the property from R-1 to R-3, voting to deny
rezoning applications, 13 and voting to pass an ordinance placing a moratorium to
halt determination of applications during a study-period.14 Pursuant to the above
case law, Defendant Board Members are entitled to absolute immunity pertaining
to their legislative decisions.
Plaintiff has failed to state a claim against the City and the City is immune
from punitive damages under 42 U.S.C. § 1983.
“[A] local government may not be sued under § 1983 for an injury inflicted
solely by its employees or agents on a theory of respondeat superior.” Andrews v.
Fowler, 98 F.3d 1069, 1074–75 (8th Cir. 1996) (quoting Monell v. Dep't of Social
Servs. of the City of New York, 436 U.S. 658, 694 (1978)). A municipality may be
liable under § 1983 for the unconstitutional acts of its employees if some custom or
policy of the municipality was the moving force behind the constitutional
violation. Wilson v. Spain, 209 F.3d 713, 717 (8th Cir. 2000) (citing Board of
County Comm'rs v. Brown, 520 U.S. 397, 403–04 (1997)). A plaintiff must make a
13

See supra.
See LaConner Assocs. Ltd. Liab. Co. v. Berg, 73 F. App'x 994, 996 (9th Cir. 2003) (affirming dismissal based on
legislative immunity pertaining to moratorium ordinance halting development); Bloomingburg Jewish Educ. Ctr. v.
Vill. of Bloomingburg, 111 F. Supp. 3d 459, 492 (S.D.N.Y. 2015) (village board of trustees member voting for
moratorium was engaged in legislative action and entitled to absolute immunity); Deshotels v. Vill. of Pine Prairie,
No. 11-CV-2052, 2012 U.S. Dist. LEXIS 68029, at *14 (W.D. La. Apr. 12, 2012) (“Actions such as enacting
ordinances, confecting and enforcing zoning restrictions, or construction moratoria are protected by absolute
legislative immunity.”).
14

26

showing regarding the fault of the municipality and a causal link between the
municipal policy and the alleged violation, whereby there exists a municipal policy
that violates federal law on its face or evidence that the municipality has acted with
“deliberate indifference” to an individual’s federal rights. See Ware v. Jackson
County, Mo., 150 F.3d 873, 880 (8th Cir. 1998).
Plaintiff must: (1) identify an officially promulgated policy of defendant, or
(2) identify an unofficial custom or practice, usually shown through the repeated
acts of the final policymaker of defendant. See St. Louis v. Praprotnik, 485 U.S.
112, 121 (1988); Monell, 436 U.S. at 690–91; Mettler v. Whiteledge, 165 F.3d
1197, 1204 (8th Cir. 1999); Ware v. Jackson County, Mo., 150 F.3d 873, 880 (8th
Cir. 1998); Marchant v. City of Little Rock, Arkansas, 741 F.2d 201, 2014 (8th Cir.
1984).
To state a municipal liability claim under an “inaction” theory, a plaintiff
must establish 1) the existence of a clear and persistent pattern of constitutional
violations; 2) notice or constructive notice on the part of the municipality; 3) the
municipality’s tacit approval of the unconstitutional conduct, such that its
deliberate indifference in its failure to act can be said to amount to an official
policy of inaction; and 4) that the municipality’s custom was the “moving force” or
direct causal link in the constitutional deprivation. See id.; see also City of Canton
v. Harris, 489 U.S. 378, 388–89 (1989).
27

Plaintiff has not pleaded a custom or practice, but policies via zoning
ordinances and decisions regarding the same. For the reasons stated above,
Plaintiff has failed to show any officially promulgated policy violated any
constitutional right of Plaintiff. In addition, Plaintiff’s allegation regarding
punitive damages against the City should be dismissed due to immunity stated in
City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1982).
Conclusion
Count II of the Petition fails to sufficiently allege facts which would confer
subject matter jurisdiction upon this Court. Under the standard of review, it cannot
survive Defendants’ facial challenge.
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss,
[Doc. No. 29], is granted.
IT IS FURTHER ORDERED that Count II of the Plaintiff’s First
Amended Petition is DISMISSED.
Dated this 22nd day of June, 2018.

________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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