Harrington et al v. Seward County Commisioners et al
MEMORANDUM AND ORDER granting 58 the County's Motion to Dismiss for Failure to State a Claim. Specifically, a. Harrington's constitutional challenges to the 2007 and 2015 ordinances are dismissed without prejudice. b. Harrington's du e process claim is dismissed. c. Harrington's takings claim is dismissed without prejudice. d. Harrington's state law claim is dismissed without prejudice to its reassertion in state court. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SHANE HARRINGTON; MELTECH,
INC.; and MIDWEST GIRLS CLUB,
MEMORANDUM AND ORDER
SEWARD COUNTY, NEBRASKA, a
The plaintiffs, Shane Harrington, Meltech, Inc., and Midwest Girls
Club (collectively, "Harrington")1, have sued the defendant, Seward County,
for alleged constitutional and state law violations. The County moves to
dismiss Harrington's complaint under Fed. R. Civ. P. 12(b)(1) and (12)(b)(6).
For the reasons discussed below, the County's motion will be granted.
Harrington's allegations are briefly summarized as follows. In April
2015, Harrington sought out a location for an adult entertainment venue in
Seward County, Nebraska. As part of this process, Harrington allegedly
spoke with the County's zoning administrator, who, Harrington claims,
encouraged him to purchase a building in a remote area of the county. Filing
57 at 1. Soon thereafter, Harrington entered into an option contract for the
purchase of the building. His purchase option was conditioned on receiving
necessary approvals from the County, and provided for a July 15, 2015
closing date. Filing 57 at 3; filing 57-2 at 26. That date, however, would be
"automatically extended" to accommodate the County's review—but any
extensions beyond September 15 required the express permission of the
seller. Filing 57-2 at 26.
Harrington's proposed adult entertainment juice bar was located in a
"C-2 Highway Commercial District," which—pursuant to the zoning
ordinance in effect at that time ("the 2007 ordinance")—expressly excluded
adult entertainment venues. See filing 57-4 at 69. But, Harrington says, the
zoning administrator assured him that the respective powers would approve
Harrington owns Meltech, Inc. and Midwest Girls Club. Filing 57 at 13-14.
an application for rezoning if submitted. So, on or around May 1, 2015,
Harrington submitted applications to the Seward County Commissioners to
initiate a two-step process to secure approval for the project. Pursuant to this
process, Harrington (1) petitioned the commission to rezone the subject
property from C-2 highway commercial to I-1 industrial (which conditionally
permitted adult establishments), and (2) sought a conditional use permit in
the event that the commission approved the rezoning request. Filing 57 at 12; filing 57-2 at 10.
Harrington alleges that from May to October 2015, the County
intentionally delayed his application and held "secret meetings" on the
proposal. See filing 57 at 2. Then, in September—prior to any adjudication on
Harrington's requests—the County adopted a new zoning resolution ("the
2015 ordinance") which further regulates adult establishments.2 See, filing 57
at 2; filing 57-3. Under the 2015 ordinance, adult entertainment venues are
now permitted by right in C-2 highway commercial districts, thereby
eliminating the need for Harrington's rezoning request. Filing 57-3 at 10. But
the ordinance includes regulations not previously included in the 2007
ordinance, such as a prohibition on alcohol, and certain restrictions
pertaining to the touching of semi-nude dancers. See filing 57-3 at 8-10.
Overall, Harrington contends, the 2015 ordinance was "specifically designed
to prohibit Plaintiff's [sic] from opening and operating the juice bar[,]" and
otherwise "criminaliz[es] and regulat[es] Adult Establishments in an
unconstitutional and unprecedented manner." Filing 57 at 2.
Harrington claims that as a result of the County's actions, he was
"required to relinquish [his] purchase option for the subject property." Filing
57 at 2. He attacks several provisions of the two ordinances on constitutional
grounds, and claims, among other matters, that the County deprived him of
property without due process of law. He seeks declaratory and monetary
STANDARD OF REVIEW
A complaint must set forth a short and plain statement of the claim
showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This
standard does not require detailed factual allegations, but it demands more
than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The complaint need not contain detailed factual allegations, but must provide
more than labels and conclusions; and a formulaic recitation of the elements
To be clear: the County did not rewrite and replace its entire zoning ordinance. Rather,
the "2015 ordinance" as referred to herein amends the 2007 ordinance with respect to adult
establishments only. Compare filing 57-3, with filing 57-4.
of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). For the purposes of a motion to dismiss a court must take all of
the factual allegations in the complaint as true, but is not bound to accept as
true a legal conclusion couched as a factual allegation. Id.
And to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a
complaint must also contain sufficient factual matter, accepted as true, to
state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. A
claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. Where the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the complaint has
alleged—but has not shown—that the pleader is entitled to relief. Id. at 679.
Determining whether a complaint states a plausible claim for relief will
require the reviewing court to draw on its judicial experience and common
sense. Id. The facts alleged must raise a reasonable expectation that
discovery will reveal evidence to substantiate the necessary elements of the
plaintiff's claim. See Twombly, 550 U.S. at 545. The Court must assume the
truth of the plaintiff's factual allegations, and a well-pleaded complaint may
proceed, even if it strikes a savvy judge that actual proof of those facts is
improbable, and that recovery is very remote and unlikely. Id. at 556.
When deciding a motion to dismiss under Rule 12(b)(6), the Court is
normally limited to considering the facts alleged in the complaint. If the
Court considers matters outside the pleadings, the motion to dismiss must be
converted to one for summary judgment. Fed. R. Civ. P. 12(d). However, the
Court may consider exhibits attached to the complaint and materials that are
necessarily embraced by the pleadings without converting the motion. Mattes
v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003). Documents
necessarily embraced by the pleadings include those whose contents are
alleged in a complaint and whose authenticity no party questions, but which
are not physically attached to the pleading. Ashanti v. City of Golden Valley,
666 F.3d 1148, 1151 (8th Cir. 2012). The Court may also take notice of public
records. Levy v. Ohl, 477 F.3d 988, 991 (8th Cir. 2007).
Harrington's amended complaint contains eleven causes of action for
alleged constitutional and state law violations. These claims, generally
speaking, fall into one of two categories: (1) challenges to specific provisions
of the 2007 and 2015 ordinances, and (2) challenges to the County's
processing of Harrington's rezoning and conditional use applications.
Specifically, Harrington alleges that the County's zoning ordinances violate
the First, Fourteenth, and Twenty-First Amendments, and that the 2015
ordinance is an unconstitutional bill of attainder and ex post facto law. See
filing 57 at 22-26, 29, 30. Further, regarding his zoning applications,
Harrington alleges that the County improperly delayed adjudication of his
requests, held secret meetings without proper notice, accepted false and
misleading evidence at public meetings, and failed to follow procedures set
forth in the 2007 ordinance. Ultimately, Harrington says, he was forced to
relinquish his property option without due process or just compensation, and
in violation of Nebraska's Open Meetings Act, Neb. Rev. Stat. § 84-1407 et
seq. Filing 57 at 2, 26-29, 31.
A. THE 2007 AND 2015 ORDINANCES
As noted above, Harrington asserts various constitutional challenges to
the County's 2007 and 2015 zoning ordinances. The County urges dismissal,
raising separate yet related arguments regarding standing. Specifically, with
respect to the 2007 ordinance, the County argues that Harrington's claims
are moot, noting that the relevant provisions of that ordinance were replaced
in 2015. Filing 59 at 7. Further, it argues, because there is no indication that
a ruling against the 2007 ordinance would redress the injuries alleged, there
is no justiciable case or controversy. Filing 59 at 14. Next, with respect to the
2015 ordinance, the County contends that because Harrington no longer has
an option to purchase property, he has "failed to show that [he is] at
imminent risk of suffering an injury." Filing 59 at 14-15. Harrington disputes
these points, citing his 6-month option contract, "numerous violations of [the]
2007 zoning resolution", and the purported "promises" of the county official
regarding the viability of his applications. See filing 60 at 2.
Federal courts have subject-matter jurisdiction only over cases in which
the plaintiff "satisf[ies] the threshold requirement imposed by Article III of
the Constitution by alleging an actual case or controversy." City of Los
Angeles v. Lyons, 461 U.S. 95, 101 (1983). In other words, federal courts have
no jurisdiction over cases in which the plaintiff lacks standing to bring the
complaint. Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing has three
components. First, plaintiffs must show that they have suffered an injury-infact that is both concrete in nature and particularized to them. Allen v.
Wright, 468 U.S. 737, 755 (1984). Second, the injury must be fairly traceable
to defendants' conduct. Id. at 757. Third, the injury must be redressable—
relief "must be 'likely' to follow from a favorable decision." Id.
Thus, in the context of zoning, the claimant "must allege specific,
concrete facts demonstrating that the challenged practices harm him, and
that he personally would benefit in a tangible way from the court's
intervention." Warth, 422 U.S at 508. The plaintiff need not have a "present
contractual interest in a particular project." Id. at 508 n.18. But the plaintiff
must allege facts from which it reasonably could be inferred that, absent the
restrictive zoning ordinance, "there is a substantial probability that [he]
would have been able to purchase or lease in" the area subject to the
ordinance, "and that, if the court affords the relief requested, the asserted
inability of [the plaintiff] will be removed." Id. at 503.
Applying these principles, the Court concludes that Harrington lacks
standing to challenge either the 2007 or 2015 ordinances. Accordingly, for the
reasons discussed below, counts 1-6 and 9-10 will be dismissed without
prejudice. The Court will address the respective ordinances in reverse order.
(i) 2015 Ordinance
Harrington challenges several provisions of the 2015 zoning ordinance
which, he claims, are constitutionally deficient. Specifically, Harrington
alleges that the 2015 ordinance "criminalize[s] nudity, masturbation, and
sexual contact between consenting adults" in violation of his "expressive" and
"intimate" association rights. Filing 57 at 16-19. He further contends that a
provision requiring adult venues to close from 12:00 a.m. to 6:00 a.m.
constitutes an unlawful prior restraint, and that provisions restricting the
touching of semi-nude dancers violate the Freedom of Speech and Association
Clauses of the First Amendment. Filing 57 at 19-20. Harrington also takes
issue with certain terms in the ordinance—such as "adult lounge," "seminude," "pubic area," and "specific sexual activities"—which he argues are
vague and overbroad. Filing 57 at 22-26. And finally, Harrington contends
that the 2015 resolution amounts to an unconstitutional bill of attainder and
ex post facto law, and that the ordinance, which "criminalizes" the possession
of alcohol, operates in violation of the Twenty-First Amendment. See filing 57
Less clear, however, is the nature and extent of Harrington's purported
injuries. He does not, for example, allege to have been denied a permit or
variance under the 2015 ordinance, or suggest an ongoing intent to apply for
such permits. Nor does he allege an inability to partake in constitutionally
permissible conduct in fear of sustaining a direct injury as a result of the
law's operation or enforcement. See Phelps-Roper v. City of Manchester, 697
F.3d 678, 687 (8th Cir. 2012). Rather, Harrington's injuries seemingly trace
to the loss of his option contract, which he purportedly relinquished "because
of the unconstitutional new zoning amendments that were specifically
adopted to stop Plaintiffs from operating a juice bar with nude dancing[.]"
Filing 60 at 3. In advancing this argument, Harrington implies (1) that the
option contract was still in force at the time the County adopted the 2015
ordinance, and (2) that the he would have exercised his purchase option butfor the County's conduct.
But any causal connection between these events—that is, the loss of the
option contract and the adoption of the ordinance—is undermined by the
exhibits attached to Harrington's complaint. Indeed, Harrington's option
contract provided a July 15, 2015 closing date, which would be "automatically
extended" in the event that his zoning applications remained pending. Filing
57-2 at 26. But the contract also provided that such extensions would not
exceed September 15, 2015, "unless permission [was] given by seller." Filing
57-2 at 26. Here, it is uncontested that Harrington's zoning applications
remained pending as of September 15. And nowhere does Harrington allege
that the seller permitted further extensions beyond that date. So, based on
the terms of the operative agreement, and the facts alleged in the amended
complaint, it is clear that Harrington's purchase option expired on September
And therein lies the problem: as the County points out, the 2015
ordinance was approved and went into effect after September 15. Thus, based
on the facts alleged, it appears that Harrington's purported loss of the option
contract was based not on the substance of the 2015 ordinance, but rather on
the terms of the operative agreement.3
Of course, Harrington need not prove a "present contractual interest in
a particular project" to challenge the constitutionality of a zoning ordinance.
Warth, 422 U.S. at 508 n.18. But to establish standing, he must demonstrate
a causal relationship between the County's 2015 zoning ordinance and the
injuries alleged. Id. at 504. And as noted above, this requires a showing that
absent the restrictive zoning ordinance, "there is a substantial probability
that [he] would have been able to purchase or lease" in the area subject to the
ordinance. Id. at 503. Without more, the Court is unable to infer that such
causal relationship exists.
But Harrington also asserts facial challenges to the 2015 ordinance,
suggesting that his purported injury extends beyond the option contract
discussed above. On this point, Harrington contends that provisions of the
ordinance are vague and overbroad, and that as a result, he and others are
unable to engage in certain constitutionally protected activities. He further
argues that, given the nature of these challenges, the requirement to show
standing should be relaxed. After all, he writes, challenges to overly-broad
Even assuming otherwise, it is not clear why Harrington would be "required to relinquish"
the agreement as a result of the 2015 ordinance. Filing 57 at 2. Indeed, unlike the 2007
ordinance, the 2015 resolution expressly permitted adult entertainment venues in C-2
commercial districts. See filing 57-3 at 10. And, as noted above, Harrington's proposed
building was located in a C-2 highway commercial district. See filing 57-2 at 2.
statutes are "not primarily for the benefit of the litigant, but for the benefit of
society[.]" Filing 60 at 5 (citing Linc-Drop, Inc. v. City of Lincoln, 996 F. Supp.
2d 845, 853 (D. Neb. 2014)). Ultimately, Harrington "demand[s] that all
vague and overbroad definitions and prohibitions in Defendant Seward
County's 2015 zoning resolution be enjoined and declared unconstitutional."
Filing 57 at 26 (emphasis omitted).
But as Harrington knows well, challenging an ordinance based on
vagueness or overbreadth does not, itself, excuse or obviate the requirement
of constitutional standing. See, Harrington v. Hall County Bd. of Supervisors,
2016 WL 1274534, at *13 (D. Neb. 2016); Harrington v. Hall County
Nebraska, 2016 WL 3950745, at *3 (D. Neb. 2016). Rather, Article III
standing is required no matter the claim, and for present purposes, it
requires that Harrington demonstrate "a harm fairly traceable to conduct (or
anticipated conduct) by the [County]." Dolls, Inc. v. City of Coralville, 425 F.
Supp. 2d 958, 979 (S.D. Iowa 2006). In other words, as the Court in Dolls
[I]f a statute has not been applied, one of two types of injuries
must be alleged. First, the plaintiff must have "alleged an
intention to engage in a course of conduct arguably affected with
a constitutional interest, but proscribed by [the] statute, and
there [must] exist a credible threat of prosecution."
Alternatively, a plaintiff must be "chilled from exercising [its]
right to free expression or forego expression in order to avoid
enforcement consequences." In either situation, there must exist
an actual threat that the challenged ordinances would be applied
if the plaintiff exercised its right to free expression.
Id. at 979-80 (citing Ramirez v. Sanches Ramos, 438 F.3d 92, 98 (1st Cir.
2006) (internal citations omitted)).
Applying these principles, Harrington has failed to establish standing
over his constitutional challenges to the 2015 ordinance. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992) (the burden lies with the party asserting
jurisdiction). Indeed, as noted above, Harrington has not alleged a current or
potential property interest in Seward County—much less a desire to return.4
In an apparent attempt to remedy this deficiency, Harrington, in his brief in response to
the motion to dismiss, writes: "Plaintiffs would still like to purchase the subject property if
Defendant's unconstitutional zoning resolution and amendments are enjoined from
enforcement." Filing 60 at 3-4. But again, this language appears nowhere in the amended
complaint, and it is not—without more—the type of affirmative factual allegation required
in an Article III standing analysis. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231
Nor has he sufficiently alleged an intention to engage in conduct prohibited
by the provision, or some other present and realistic danger of "sustaining a
direct injury as a result of [the law's] operation or enforcement." PhelpsRoper, 697 F.3d at 687. Accordingly, Harrington's constitutional challenges to
the 2015 ordinance will be dismissed without prejudice.
(ii) 2007 Ordinance
Harrington also challenges provisions of the 2007 ordinance, which has
since been amended by the County's 2015 resolution. Specifically, Harrington
alleges that the 2007 zoning ordinance effectively bans all sexually oriented
businesses by "prohibit[ing] Adult Establishments in over 99.9% of Seward
County[.]" Filing 57 at 2-3, 16. He further contends that an hours of operation
provision—which requires adult businesses to close from 12:00 a.m. to 6:00
a.m.—amounts to a unlawful prior restraint. Filing 57 at 15, 19. He seeks an
order "declaring that the [2007 ordinance] is unconstitutional with regard to
the restrictions of sexually oriented businesses." Filing 57 at 32. The County
argues that Harrington's claims are moot. See filing 59 at 10.
Various doctrines—including the doctrine of mootness—"provide the
tools used to determine whether a plaintiff presents a justiciable case or
controversy." McCarthy v. Ozark School Dist., 359 F.3d 1029, 1035 (8th Cir.
2004). Mootness has been characterized as "the doctrine of standing set in a
time frame[,]" Doe v. LaFleur, 179 F.3d 613, 615 (8th Cir. 1999), and is
therefore akin to the doctrine of standing. Ali v. Cangemi, 419 F.3d 722, 72324 (8th Cir. 2005). Thus, courts lack jurisdiction over cases in which "due to
the passage of time or a change in circumstances, the issues presented . . .
will no longer be 'live' or the parties will no longer have a legally cognizable
interest in the outcome of the litigation." Van Bergen v. State of Minn., 59
F.3d 1541, 1546 (8th Cir. 1995) (quoting Arkansas AFL-CIO v. F.C.C., 11
F.3d 1430, 1435 (8th Cir. 1993)).
When a law or ordinance has been amended or repealed, actions
seeking declaratory or injunctive relief for earlier versions are generally
moot. Phelps-Roper, 697 F.3d at 687. An exception to this rule applies,
however, where the case is "capable of repetition yet evad[es] review,"
McCarthy, 359 F.3d at 1036, or where there is a "reasonable expectation the
wrong will be repeated." Missouri Protection and Advocacy Servs., Inc. v.
Carnahan, 499 F.3d 803, 811 (8th Cir. 2007). Here, even assuming that the
2007 ordinance effectively banned adult venues, those restrictions have been
(1990) (It is a long-settled principle that standing cannot be "inferred argumentatively from
averments in the pleadings, but rather must affirmatively appear in the record. . . . Thus,
petitioners . . . must allege . . . facts essential to show jurisdiction.") (internal quotation
marks and citations omitted).
lifted, and Harrington does not allege an ongoing harm. Nor is there an
indication that the County will reenact the 2007 ordinance, or that it is
operating under the repealed provisions. See, Traditionalist American
Knights of the Ku Klux Klan v. City of Desloge, 2016 WL 705128, *2 (E.D. Mo.
2016); Plisner v. Sweeney, 2007 WL 474964, at *4 (D. Minn. 2007).
Accordingly, count 1 of Harrington's amended complaint (at least as it
pertains to the 2007 ordinance) will be dismissed as moot. See filing 57 at 16.
But at least one provision—the requirement that adult establishments
close from 12:00 a.m. to 6:00 a.m.—appears in both the 2007 and 2015
ordinances. Compare filing 53-5 at 71, with filing 53-4 at 8. So, contrary to
the County's contention, it cannot be said that the alleged misconduct has
permanently ceased or is unlikely to be repeated. See Comfort Lake Ass'n,
Inc. v. Dresel Contracting, Inc., 138 F.3d 351, 354 (8th Cir. 1998). But as
alluded to above, a case may also become moot "when the issues presented
are no longer 'live' or the parties lack a legally cognizable interest in the
outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (internal
quotation marks omitted). And here, for the reasons discussed above, the
Court is not convinced that Harrington has a legally cognizable interest in
the remedy he requests (that is, the enjoinment of the hours of operation
More fundamentally, though, the Court is unable to determine how—or
if—Harrington was injured by the provision of the 2007 ordinance at issue.
Indeed, while Harrington alleges a desire to "assemble and hold parties and
events" in the County after midnight, there is no evidence that he was denied
a permit or variance under the 2007 ordinance generally, or pursuant to the
hours of operation provisions specifically. Nor does he contend that he tried,
but was prevented, from entering or opening a similar establishment during
the restricted hours of operation.
And even if the Court were to assume that such injury exists, there is
no indication that prospective relief "will remove the harm" identified. Warth,
422 U.S. at 505. As noted throughout, Harrington does not own—nor
sufficiently allege an intention to own—property in the County, such that he
would "benefit in a tangible way from the court's intervention." Id. 508. Thus,
absent the necessary allegations of demonstrable, particularized injury and
redressability, there "can be no confidence of a real need to exercise the power
of judicial review[.]" Id. (internal quotation marks omitted). Thus, to the
extent that Harrington challenges the hours of operation restriction in the
2007 ordinance, that claim will be dismissed without prejudice.
B. THE REZONING AND CONDITIONAL USE APPLICATIONS
Harrington's remaining claims challenge the sufficiency and legality of
the process by which the County (1) handled Harrington's rezoning and
conditional use applications, and (2) adopted the 2015 ordinance. Specifically,
and as noted above, Harrington alleges that the County improperly delayed
adjudication of his requests, held secret meetings without proper notice,
accepted false and misleading evidence at public meetings, and failed to
follow procedures set forth in the 2007 ordinance. As a result of this conduct,
Harrington contends that he was deprived of a property interest in violation
of the Fifth and Fourteenth Amendments. He also alleges that the County, in
failing to provide sufficient notice of public meetings, violated Nebraska's
open meetings law.
1. DUE PROCESS
Harrington alleges that the County, in engaging in the conduct
described above, violated his Fourteenth Amendment due process rights.
Filing 57 at 26. But in asserting this allegation, he neither identifies the
property or liberty interest at issue, nor clarifies whether his claim is
procedural or substantive in nature (or both). Nevertheless, the Court
construes Harrington as alleging a violation of procedural due process
premised on a purported property interest in (1) the option contract, and (2)
rezoning under the 2007 ordinance.5
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." Stevenson v. Blytheville Sch. Dist. #5, 800 F.3d 955,
965-66 (8th Cir. 2015).
The County urges dismissal, arguing that Harrington lacks a protected
property interest. See filing 59 at 38. A plaintiff has "a constitutionally
cognizable property interest in a right or a benefit" if he has "a legitimate
claim of entitlement to it." Stevenson, 800 F.3d at 967-68 (internal quotations
The Court acknowledges Harrington's passing references to substantive due process in his
response to the County's motion to dismiss. See filing 60 at 59. But that claim is not
specifically pled in the complaint. Besides, even assuming that the zoning process is
"expensive, complex, wasteful, unfair, and arbitrary," that itself is not enough. See filing 57
at 26-27. Rather, due process claims involving local land use decisions must demonstrate
that the government action is "truly irrational, that is something more than . . . arbitrary,
capricious, or in violation of state law. The action must therefore be so egregious or
extraordinary as to shock the conscience." Koscielski v. City of Minneapolis, 435 F.3d 898,
902 (8th Cir. 2006) (internal quotation marks and citation omitted).
- 10 -
omitted) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972)). To have a legitimate claim of entitlement to a benefit, "a person
clearly must have more than an abstract need or desire and more than a
unilateral expectation of it." Town of Castle Rock v. Gonzales, 545 U.S. 748,
756 (2005) (internal quotations omitted). The Due Process Clause itself does
not create such entitlements; rather, they arise "from an independent source
such as state law." Id.
As noted above, the Court construes Harrington as alleging an
entitlement to the County's approval of his application for rezoning. But
nothing in the County's 2007 ordinance entitled Harrington to believe that
the County would—much less must—approve his application. Walker v. City
of Kansas City, 911 F.2d 80, 94 (8th Cir. 1990). Thus, the County was not, as
a constitutional matter, obligated to afford Harrington any particular
process. Id. at 94-95. And Harrington cannot overcome this analysis with
vague references to a zoning administrator's "assurances" that his
application, if submitted, would be approved. Even assuming the truth of
that allegation, the rezoning petition was to be decided by the County Board
of Commissioners after recommendations of the planning commission. See,
filing 62 at 13; filing 57-4 at 34, 117. Thus, the unilateral statements of a
zoning official who had no authority to grant the rezoning petition cannot—
and did not—form a "legitimate claim of entitlement" necessary to state a due
The Court further construes Harrington as alleging a property interest
in his option contract, which the County purportedly deprived him of
through, among other means, unnecessary delay. But that claim fails for
similar reasons. As noted above, Harrington's option contract was premised
on securing County approval of his rezoning and conditional use permits. 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. See 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
As a final matter, even assuming the existence of a property interest,
the nature of Harrington's due process claim is unclear. While Harrington
claims, for example, not to have received proper notice of a June 22 meeting,
In any event, Harrington's allegations regarding these alleged assurances are conclusory
at best. And his attempt to remedy this deficiency by attaching an affidavit to his response
brief is unavailing. See filing 61-1.
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public records suggest otherwise. See, filing 60 at 32; filing 59-14. To this end,
the Court has reviewed public notices that were published in local
newspapers in the weeks prior to the commission's meeting. See filing 59-14
at 17, 18. And more to the point, the publicly-available transcript of the
meeting shows that Harrington and his attorney were not only in attendance
at the June 22 meeting, they presented at it. See filing 57-10 at 21. Thus, it is
unclear what additional notice Harrington claims he was due. See Anderson
v. Douglas County, 4 F.3d 574, 578 (8th Cir. 1993) ("In the zoning context,
assuming a landowner has a protectable property interest, procedural due
process is afforded when the landowner has notice of the proposed
government action and an opportunity to be heard."). Accordingly, the
County's motion to dismiss Harrington's due process claim is granted.
Harrington next contends that the County's conduct with respect to
rezoning and conditional use applications "constitute[s] a taking of property
without due process of law."7 Filing 57 at 29. To support this contention,
Harrington reiterates his argument that the County improperly delayed his
applications, and claims more generally that the County denied him all
"economically viable use of (the) land." Filing 60 at 47-48. The County argues
that Harrington's takings claim is not ripe for review. Filing 59 at 41.
A takings claim must be ripe in two different respects. First, the
government entity charged with implementing the regulations must have
"reached a final decision regarding the application of the regulations to the
property at issue." Williamson County Reg'l Planning Comm'n v. Hamilton
Bank, 473 U.S. 172, 186 (1985). A "final decision" requires the submission of
all relevant plans and includes the opportunity to grant any variances or
waivers allowed by law. Id. Second, the claimant must "seek compensation
through the procedures the State has provided for doing so." Id. at 194 n.13;
see Koscielski v. City of Minneapolis, 435 F.3d 898, 903-04 (8th Cir. 2006).
As an initial matter, the Court is not convinced by Harrington's
contention that, as the prior holder of an option, he possesses a
constitutionally protected property right for purposes of Fifth Amendment
takings jurisprudence. See Phillips Petroleum Co. v. City of Omaha, 106
N.W.2d 727, 736 (Neb. 1960) (an option agreement "does not create an
interest or estate in real estate or personal property"); Phillips v. Washington
Legal Foundation, 524 U.S. 156, 164 (1998) (property interests under the
Fifth Amendment takings jurisprudence concerns just compensation, not due process, but
Harrington frequently combines the two in his amended complaint and accompanying
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Fifth Amendment determined by reference to state law). But even assuming
that he does, his claim is unripe. Indeed, Harrington has not adequately
pursued available state law remedies, such as the filing of an inverse
condemnation action. See Strode v. City of Ashland, 886 N.W.2d 293, 303-04
(Neb. 2016) (recognizing the availability of inverse condemnation actions for
regulatory takings); see also Koscielski, 435 F.3d at 903-04 (finding a takings
claim unripe where the claimant failed, among other matters, to pursue an
inverse condemnation action in state court). Accordingly, because Harrington
has not exhausted potential state law remedies, his Fifth Amendment claim
will be dismissed.
3. OPEN MEETINGS ACT
Harrington has also asserted a separately-pled state law claim against
the County for an alleged violation of Nebraska's public meetings law.
Specifically, Harrington alleges that the County held "several public
meetings between July and September 2015" without providing him
sufficient notice. Filing 57 at 31. At these meetings, Harrington says, the
County inappropriately published Harrington's "minor criminal misdemeanor
history" and otherwise permitted residents to offer "hearsay testimony
regarding the negative effects of sexually oriented businesses[.]" Filing 57 at
31. In addition to monetary damages, Harrington "demand[s] that the
portions of the Public Meetings regarding Plaintiffs held between July and
September 2015 be voided[.]" Filing 57 at 31.
The Court recognizes that it may continue to exercise supplemental
jurisdiction over those claims. See, 28 U.S.C. § 1367(a) and (c); Carlsbad
Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009). But this Court may
also decline to do so where "the district court has dismissed all claims over
which it has original jurisdiction." § 1367(c)(3). Having considered
Harrington's state law claims against the County, and factors such as judicial
economy, convenience, fairness, and comity, see Glorvigen v. Cirrus Design
Corp., 581 F.3d 737, 749 (8th Cir. 2009), the Court declines to exercise
supplemental jurisdiction. Accordingly, Harrington's remaining claim will be
dismissed without prejudice to its reassertion in state court. See 28 U.S.C. §
IT IS ORDERED:
The County's motion to dismiss (filing 58) is granted.
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a. Harrington's constitutional challenges to the 2007
and 2015 ordinances are dismissed without prejudice.
b. Harrington's due process claim is dismissed.
c. Harrington's takings claim is dismissed without
d. Harrington's state law claim is dismissed without
prejudice to its reassertion in state court.
A separate judgment will be entered.
Dated this 22th day of March, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge
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