Northtown Village, Inc. v. Parrish et al
ORDER granting 3 Motion to Dismiss; case dismissed without prejudice. (Schroeppel, Kerry)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
NORTHTOWN VILLAGE, INC.,
CITY OF ORONOGO, MISSOURI et al., )
Case No. 11-5018-CV-SW-RED
Before the Court is Defendants' Joint Motion to Dismiss (Doc. 3). Defendants City of
Oronogo, Missouri, Bob Parrish, Bob Russell, Bruce Richardson, Rick Smith, Coby Lanford, David
Butler, Joshua Stiffler and Pat Tuttle ("Defendants") move to dismiss the Complaint (Doc. 1) filed
by Northtown Village, Inc. ("Northtown") in its entirety. For the reasons below, the Court
GRANTS the Motion.
Northtown, a Missouri corporation that engages in the business of real estate development,
began developing Northtown Village in 1995. Northtown has requested and received building
permits from the city of Oronogo, beginning in 1995. On August 3, 2009, the Complaint alleges that
Bob Parrish, the mayor of Oronogo, notified Northtown that the City would not issue any additional
building permits "due to a pending legal action." (Complaint Doc. 1 para. 13). Since August 3,
2009, the City of Oronogo has denied Northtown's building permit requests for Northtown Village.
As a result, Northtown filed this 42 U.S.C. § 1983 action seeking a permanent injunction,
declaratory judgment, and damages. Northtown asserts procedural and substantive due process
claims under the Fourteenth Amendment,1 and a claim for inverse condemnation under the Fifth
U.S. Const. amend XIV § 1.
Amendment2 as incorporated into the Fourteenth Amendment. Palazzolo v. Rhode Island, 533 U.S.
606, 617 (2001).
STANDARD OF REVIEW
When the Court reviews a motion to dismiss, it must “take all allegations in the complaint
as true and draw all reasonable inferences in favor of the non-moving party”. O’Neal v. State
Farm Fire & Cas. Co., 630 F.3d 1075, 1077 (8th Cir. 2011).
Northtown's inverse condemnation claim is not ripe for review.
Defendants move to dismiss Northtown's inverse condemnation claim3 on the basis that the
claim is not ripe for review. As Defendants note, if a state provides adequate procedures for a
plaintiff to receive compensation for an alleged taking, the plaintiff is required to follow such
procedures before filing suit in federal court. Williamson Cnty. Reg'l Planning Comm'n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 194-95 (1985). If a plaintiff fails to do so, the federal action
is not ripe. As such, if an inverse condemnation claim is available to a plaintiff, and inverse
condemnation claims are available in Missouri,4 a plaintiff must pursue such an action in state court
before filing the claim in federal court. McKenzie v. City of White Hall, 112 F.3d 313, 317 (8th Cir.
Northtown's sole argument with respect to ripeness is that Missouri does not afford an
U.S. Const. amend V.
"To state a claim for inverse condemnation, a plaintiff must allege his property was
taken or damaged by the state for public use without just compensation." Zumalt v. Boone Cnty.,
921 S.W.2d 12, 15 (Mo. Ct. App. 1996) (quoting Harris v. Mo. Dep't of Conservation, 755
S.W.2d 726, 729 (Mo. Ct. App. 1988)). Furthermore, a plaintiff "need not plead an actual
physical taking of property, but must have plead an invasion of a valuable property right and
consequential damages." Watson v. City of St. Louis, 956 S.W.2d 920, 922 (Mo. Ct. App 1997).
CIS Comm'ns L.L.C. v. Cnty. of Jefferson, 177 S.W.3d 848, 850 (Mo. Ct. App. 2005).
adequate remedy to plaintiffs when their property is subjected to a regulatory taking. Although a
plaintiff in Missouri may not have the right to bring an inverse condemnation claim when he or she
has suffered a decrease in property value as a result of a zoning ordinance, as noted by the court in
the case relied upon by Northtown5, this is not the issue before the Court. Northtown has alleged
the denial of a building permit constitutes a taking, not that a zoning ordinance has decreased its
property value. Northtown could have filed an inverse condemnation claim in state court but has
not done so. See CIS Comm'ns, 177 S.W.3d at 850-51 (noting that a plaintiff was required to
exhaust its inverse condemnation claim for denial of conditional use permit).
Northtown's inverse condemnation claim is not ripe and must be dismissed.
Northtown's procedural and substantive due process claims are not adequately pled.
Next, Defendants move to dismiss Northtown's procedural and substantive due process
claims on the basis that Northtown has not adequately pled these claims with sufficient facts.
Specifically, Defendants allege Northtown has not pled any facts concerning constitutional
violations giving rise to its claims. Northtown alleges that it has adequately pled its claims because
it has alleged that it was issued building permits from Defendants for many years, until August 3,
2009. Northtown argues that because the Court must assume the facts in the Complaint are true and
construe all reasonable inferences in its favor, it has adequately pled its constitutional claims.
The Court must begin its analysis over whether Northtown adequately pled its constitutional
claims by focusing on "the interest allegedly violated." Young v. City of St. Charles, Mo., 244 F.3d
623, 627 (8th Cir. 2001). As the Complaint alleges Defendants have refused to issue Northtown
building permits, the 'interest allegedly violated' is Northtown's interest in the building permits.
However, in order for Northtown to have a constitutionally protected interest in the building permits,
D & R Pipeline Const. Co., Inc. v. Greene Cnty., 630 S.W.2d 236, 237-38 (Mo. Ct.
it must show that Defendants lacked discretion to issue the permits, meaning that Defendants must
issue building permits to "applicant[s] who compl[y] with the statutory requirements [if] the
applicant[s] ha[ve] fulfilled the requirements." Carolan v. City of Kansas City, Mo., 813 F.2d 178,
181 (8th Cir. 1987). In Missouri, "[t]he issuance of a building permit is a ministerial act" which
must be granted if the requirements are met. State ex rel. Remy v. Alexander, 77 S.W.3d 628, 631
(Mo. Ct. App. 2002).
Northtown's Complaint is completely lacking of any facts that show it has complied with the
requirements necessary to receive a permit from Defendants. The only facts Northtown includes in
its Complaint is a discussion of the previous building permits issued to it by Defendants and that it
was told by Mayor Bob Parrish that the City would not issue any further permits at Northtown
Village. However, without facts demonstrating that Northtown has complied with the necessary
requirements in order to receive a building permit, Northtown has not pled any facts demonstrating
it has any constitutionally protected interest in the issuance of a building permit. Thus, Northtown's
Complaint omits facts that are necessary in order to adequately plead procedural and substantive due
process claims. See Dover Elevator Co. v. Ark. State Univ., 64 F.3d 442, 446 (8th Cir. 1995)
(finding that a plaintiff failed to state a claim for procedural due process where the facts in the
complaint did not demonstrate a constitutionally protected interest). Therefore, Northtown's
procedural and substantive due process claims should be dismissed.
The Younger abstention doctrine mandates dismissal of Northtown's Complaint.
Moreover, aside from the fact that Northtown's inverse condemnation claim is not ripe and
Northtown has not adequately pled claims for procedural and substantive due process, the Complaint
should be dismissed pursuant to the Younger abstention doctrine, which dictates that federal courts
should refrain from "exercising jurisdiction when (1) there is an ongoing state proceeding, (2) which
implicates important state interests, and (3) there is an adequate opportunity to raise any relevant
federal questions in the state proceeding." Plouffe v. Ligon, 606 F.3d 890, 892 (8th Cir. 2010). With
respect to the first element regarding what constitutes a 'state proceeding', the Eighth Circuit has
found that a similar 'quasi judicial' proceeding, as compared to the permit application process in this
case, constituted a state proceeding. See Night Clubs, Inc. v. City of Fort Smith, Ark., 163 F.3d 475,
479-80 (8th Cir. 1998) (finding that a determination of a business license application by the
'Planning Commission' constitutes a state proceeding). Furthermore, with respect to whether the
proceeding at issue was ongoing, the proceeding is considered to be an ongoing state proceeding for
purposes of the abstention doctrine because Northtown did not appeal the denial of its request for
a building permit in state court. A plaintiff cannot avoid application of the Younger abstention
doctrine by failing to appeal an administrative decision in state court, Alleghany Corp v. Pomeroy,
898 F.2d 1314, 1317-18 (8th Cir. 1990), and Mo. Rev. Stat. § 89.110 requires a plaintiff to petition
a state court for review of a city council's denial of a building permit. State ex rel. Presbyterian
Church of Washington, Mo. v. City of Washington, Mo., 911 S.W.2d 697, 700 (Mo. Ct. App. 1995).
Turning to the second element, the second element is satisfied because the issuance of
building permits is an obvious important state and local interest. See Night Clubs, Inc., 163 F.3d at
480. The third element is satisfied because Mo. Rev. Stat. § 536.140, which applies to judicial
review of determinations falling under § 89.110,6 allows a plaintiff to raise constitutional challenges
on appeal in state court. § 536.140.2. See also State ex rel. Coop. Ass'n No. 86 of Aurora, Mo. v.
Bd. of Zoning Adjustment of the City of Aurora, Mo., 977 S.W.2d 79, 82-83 (Mo. Ct. App. 1998)
(allowing due process challenge on appeal). Finally, nothing in the Complaint suggests that an
exception to the Younger abstention doctrine applies. See Gillette v. N.D. Disciplinary Bd. Counsel,
610 F.3d 1045, 1047 (8th Cir. 2010) (discussing the exceptions to the application of the Younger
Deffenbaugh Indus., Inc. v. Potts, 802 S.W.2d 520, 525 n.6 (Mo. Ct. App. 1990).
abstention doctrine). As such, the Younger abstention doctrine mandates dismissal of Northtown's
For the above reasons, all claims in the Complaint should be dismissed. As such, the abovecaptioned is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
June 13, 2011
/s/ Richard E. Dorr
RICHARD E. DORR, JUDGE
UNITED STATES DISTRICT COURT
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