McClure v. City of Hurricane
Filing
58
MEMORANDUM OPINION AND ORDER. For the reasons stated, the Court grants in part defendants' motion for summary judgment and dismisses, with prejudice, plaintiffs' constitutional takings claim, procedure due process claim, and First Amendment claim. The motion is held in abeyance with respect to plaintiffs' equal protection claim. Signed by Judge Robert C. Chambers on 4/19/2011. (cc: attys) (gan)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
B.A. MCCLURE and
CHERYL MCCLURE,
Plaintiffs,
v.
CIVIL ACTION NO. 3:10-0701
CITY OF HURRICANE,
CITY OF HURRICANE SANITARY
STORMWATER BOARD,
CITY COUNCIL OF THE CITY OF
HURRICANE, CITY OF HURRICANE
PLANNING COMMISSION,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion for Summary Judgment (Doc. 47). A
hearing was held on the motion on April 18, 2011. For the following reasons, the motion is
GRANTED in part, and the Court DISMISSES with prejudice Plaintiffs’ constitutional takings
claim, procedural due process claim, and First Amendment claim. The motion is HELD in
abeyance with respect to Plaintiffs’ equal protection claim.
I. BACKGROUND
Plaintiffs B.A. McClure and Cheryl McClure originally filed this suit in the Circuit Court
of Putnam County, West Virginia, on January 13, 2006. Compl., Ex. 1 to Notice of Removal, Doc.
1-1. At issue was the application of a newly enacted provision of the Hurricane City Code to the
Plaintiffs’ ongoing development of a residential subdivision. Article 936 of the City Code governs
the requirements and standards for stormwater management. The subsection of particular relevance
to this action is § 936.20(a), which provides: “The requirements and standards of this section shall
apply to all new developments and redevelopment projects including the disturbance of land
activities of any kind, on any lot, tract, parcel or land or any portion thereof.” Plaintiffs contested
the application of these requirements to the ongoing construction of their previously approved
subdivision as Plaintiffs had commenced development of their eighty-one lot residential subdivision
in 2000, prior to the enactment of the provision in 2005. Compl. ¶ 10; 2d Am. Compl. ¶ 7, Ex. 5 to
Notice of Removal, Doc. 1-1.
Accordingly, Plaintiffs believed their subdivision should
“grandfather” as it was not a new development or redevelopment project.
However, on October 4, 2005, Plaintiffs were advised that their development was not in
compliance with Article 936. 2d Am. Compl. ¶ 13. At that time, Plaintiffs had completed the
majority of their subdivision, and only thirty lots remained to be developed. The City informed
Plaintiffs that if they did not create a stormwater management plan for the remaining section of the
subdivision, the City would not issue building permits for the residual lots. Defs.’ Mem. in Support
Mot. Summ. J. 2, Doc. 48. As Plaintiffs challenged the application of Article 936 to their
subdivision, the parties were at an impasse. No further building permits were issued1 and, as a
result, the continued construction of Plaintiffs’ subdivision was delayed. See, e.g., 2d Am. Compl.
¶¶ 13, 14, 16, 22, 24. Plaintiffs sought declaratory and injunctive relief from the application of
Article 936 to the ongoing construction of Plaintiffs’ subdivision. Compl. at 1–2.
At issue in the original complaint was whether, as the McClure subdivision’s development
began in 2000, it grandfathered in under § 936.20(a). Id. ¶ 31; 2d Am. Compl. ¶ 17. On July 30,
1
Apparently a building permit was issued to one contractor in error. Defendants maintain
that no further building permits may be issued without a stormwater management plan that complies
with Article 936. Aff. of Ben Newhouse ¶ 16, Doc. 47-5.
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2009, the Circuit Court ruled that Article 936 did not apply to Plaintiffs’ property. 2d Am. Compl.
¶ 37. The Circuit Court allowed Plaintiffs to file an amended complaint regarding monetary
damages, which Plaintiffs filed on July 17, 2009. Am. Compl. ¶ 7, Ex. 3 to Notice of Removal, Doc.
1-1. This was dismissed by the Circuit Court, finding that Defendants were immune under the
Governmental Tort Claims and Insurance Reform Act; Plaintiffs were again given leave to file an
amended complaint. Mot. to Dismiss Order, Ex. 4 to Notice of Removal, Doc. 1-1. Plaintiffs filed
their Second Amended Complaint on January 4, 2010.2 2d Am. Compl. For the first time, Plaintiffs
asserted claims under the federal Constitution, on the basis of a 42 U.S.C. § 1983 action.
Defendants moved to have this action removed to this Court on April 29, 2010 on the basis of the
newly asserted federal claims. Notice of Removal, ¶ 6, Doc. 1.
In November 2010, the Circuit Court decision finding Article 936 did not apply to Plaintiffs’
property was reversed by the West Virginia Supreme Court of Appeals, which held:
The provisions of Hurricane Municipal Ordinance §§ 936.01 to 936.44 (2005)
govern all new development and redevelopment projects including the disturbance
of land activities of any kind, on any lot, tract, parcel or land or portion thereof and,
therefore, the construction of new residential homes in an existing subdivision falls
within the purview of the ordinance.
2
Plaintiffs also at that time filed claims against individual defendants; these defendants were
dismissed pursuant to this Court’s Order of October 25, 2010, for Plaintiffs’ failure to properly serve
them. Mem. Op. & Order, Doc. 20.
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McClure v. City of Hurricane, --- S.E.2d ---, 2010 WL 4723615, Syl. Pt. 3 (W. Va. Nov. 22, 2010).3
As this decision affirmatively answered the question of whether the ordinance in question applies
to Plaintiffs’ development, it is only the Constitutional claims that are currently before this Court.
Plaintiffs contend that the application of Article 936 to their subdivision has resulted in a taking
without just compensation in violation of their substantive due process rights. Plaintiffs also claim
their procedural due process rights were violated by Defendants’ failure to provide notice regarding
the enactment and application of Article 936 to Plaintiffs’ property. In addition, Plaintiffs argue
Defendants have applied Article 936 in violation of the equal protection clause as the City has
treated similarly situated developers differently than Plaintiffs. Finally, Plaintiffs assert that
Defendants violated their First Amendment rights by restricting their participation in an open
meeting of the city council. Defendants have moved for summary judgment on all claims. The
issues have been fully briefed, and are ripe for disposition.
II. LEGAL STANDARD
To obtain summary judgment, the moving party must show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). In considering a motion for summary judgment, the Court will not “weigh the evidence
and determine the truth of the matter[.]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
3
Plaintiffs spend a portion of their response brief criticizing the West Virginia Supreme
Court of Appeals decision. While Plaintiffs do not explicitly request the Court to review the
application of Article 936 to their subdivision, the Court notes that it would be precluded from doing
so under the Rooker-Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544
U.S. 280, 284 (2005) (finding district courts lack subject matter jurisdiction over “cases brought by
state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and rejection of those
judgments”).
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Instead, the Court will draw any permissible inference from the underlying facts in the light most
favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587–88 (1986). Although the Court will view all underlying facts and inferences in the light
most favorable to the nonmoving party, the nonmoving party nonetheless must offer some “concrete
evidence from which a reasonable juror could return a verdict in his [or her] favor[.]” Anderson, 477
U.S. at 256. Summary judgment is appropriate when the nonmoving party has the burden of proof
on an essential element of his or her case and does not make, after adequate time for discovery, a
showing sufficient to establish that element. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
The nonmoving party must satisfy this burden of proof by offering more than a mere “scintilla of
evidence” in support of his or her position. Anderson, 477 U.S. at 252.
III. DISCUSSION
Plaintiffs assert four different Constitutional claims. The takings claim, procedural due
process claim, and First Amendment claim, and Defendants’ arguments for their dismissal will be
examined in turn.
A.
Plaintiffs Have Failed to Establish Grounds for a Takings Claim
“The Fifth Amendment of the United States Constitution prohibits the taking of private
property without just compensation.” Laurel & Gravel, Inc. v. Wilson, 519 F.3d 156, 164 (4th Cir.
2008) (citing Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005)). “This prohibition equally applies
to the states through the Fourteenth Amendment.” Multi-Channel TV Cable Co. v. Charlottesville
Quality Cable Corp., 65 F.3d 1113, 1123 (4th Cir. 1995) (citing Chicago Burlington & Quincy R.R.
Co. v. City of Chicago, 166 U.S. 226 (1897)). There is no “set formula for determining how far is
too far,” where a regulatory action becomes a compensable taking. Lucas v. S.C. Coastal Council,
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505 U.S. 1003, 1015 (1992) (internal quotation marks and citations omitted). In Lucas, the United
States Supreme Court recognized two categories of governmental regulatory action that may fall
within the confines of a compensable taking under the Fifth Amendment. “First, regulations that
compel a physical invasion of an owner’s property are takings, no matter how slight the invasion
or how weighty the public interest advanced to support them. Second, regulations that deny ‘all
economically beneficial or productive use of land’ are compensable takings.” Front Royal &
Warren Cnty. Indus. Park Corp. v. Town of Front Royal, Va., 135 F.3d 275, 285 (1998) (quoting
Lucas, 505 U.S. at 1015) (other citations omitted). In addition to these categories,
[w]here a regulation places limitations on land that fall short of eliminating all
economically beneficial use, a taking nonetheless may have occurred, depending on
a complex of factors including the regulation’s economic effect on the landowner,
the extent to which the regulation interferes with reasonable investment-backed
expectations, and the character of the government action.
Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (citing Penn Cent. Transp. Co. v. City of New
York, 438 U.S. 104, 124 (1978)); see also Multi-Channel TV, 65 F.3d at 1123 (citing Lucas, 505
U.S. at 1015, 1019 n.8, 1024) (recognizing these three factors to be analyzed in a takings claim and
a fourth, “whether the regulation substantially advances a legitimate state interest”).
Applying these factors to this case, the Court can only conclude that Article 936 has not
resulted in a regulatory taking of Plaintiffs’ property. First, Article 936 merely requires all
developers of new developments and redevelopments to incorporate an adequate stormwater
management plan into the proposed development of their property. This is not a physical invasion
of Plaintiffs’ property, and therefore the character of the City of Hurricane’s action is “drastically
less offensive.” Multi-Channel TV, 65 F.3d at 1123. Second, the ordinance does not deprive
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Plaintiffs of all or even close to all economically viable use of their property. As the Supreme Court
has stated,
“[t]aking” jurisprudence does not divide a single parcel into discrete segments and
attempt to determine whether rights in a particular segment have been entirely
abrogated. In deciding whether a particular governmental action has effected a
taking, this Court focuses rather both on the character of the action and on the nature
and extent of the interference with rights in the parcel as a whole . . .
—here, requiring a stormwater retention pond to handle stormwater runoff resulting from the
development of the remaining thirty lots. Penn Cent., 438 U.S. at 130. If Plaintiffs had constructed
the stormwater retention ponds as required under Article 936, they would only have lost the use of
three parcels of the thirty lots that remain to be developed.4 This is one-tenth of the property subject
to the Article 936 requirements; it cannot be said this removes “all economically beneficial or
productive use of land.” Lucas, 505 U.S. at 1015.
Further, the majority of the economic impact of Article 936 on Plaintiffs is the result of
Plaintiffs’ decision to challenge the applicability of the ordinance to their property, and to delay
compliance. The majority of the remaining plots were open for development, so long as Plaintiffs
constructed the stormwater retention pond. The unanticipated expenses resulting from the delay in
the continued development occurred because Plaintiffs declined to build the retention pond.
Plaintiffs received a speedy review process and access to administrative hearings; the incidental
impacts resulting from the length of the appeal process through the state courts, and now the federal
courts, do not transform this into a regulatory taking. See, e.g., Sunrise Corp. of Myrtle Beach v.
4
In their Second Amended Complaint, Plaintiffs allege that only two lots were required for
the stormwater retention pond. Both parties, in their briefing on the motion for summary judgment,
state three lots were required. The Court does not find this makes a material difference in its
analysis of the claims before it, and will adopt the larger number for use throughout this Opinion.
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City of Myrtle Beach, 420 F.3d 322, 330 (4th Cir. 2005) (“As a general rule, a delay in obtaining a
building permit is not a taking but a non-compensable incident of ownership.”).
Third, while Plaintiffs’ initial investment-backed expectations included the successful
development and sale of all lots of the subdivision, the loss of three plots does not rise to the level
of a compensable taking. Plaintiffs cite Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), to
support their contention that while the ordinance may be substantially related to a government
interest, it “so frustrate[s] distinct investment-backed expectations so as to amount to a ‘taking.’”
Penn Cent., 438 U.S. at 127 (citing Pennsylvania Coal, 260 U.S. at 414–15). In that case, however,
the regulation in question made it “commercially impracticable” to mine the coal as intended.
Pennsylvania Coal, 260 U.S. at 414. In contrast, Plaintiffs could still have developed the majority
of the remaining lots as they intended; Article 936 only required the sacrifice of three lots. This
does not amount to a frustration of Plaintiffs’ initial investment-backed expectations. A diminution
in value, alone, does not establish a taking. Penn Cent., 438 U.S. at 131. Plaintiffs have provided
no additional evidence outside of the slight decrease in the number of lots they could develop for
residential housing to support their contention that the application of Article 936 amounted to a
compensable taking.
Lastly, Article 936 advances a legitimate public interest. The Supreme Court has recognized
that “in instances in which a state tribunal reasonably concluded that the health, safety, morals, or
general welfare would be promoted by prohibiting particular contemplated uses of land, th[e] Court
has upheld land-use regulations that destroyed or adversely affected recognized property interests.”
Penn Cent., 438 U.S. at 125 (quotation marks and citations omitted). Article 936 seeks to prevent
flooding by requiring developers to offset the increase of stormwater runoff that results from the
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construction of impervious surfaces such as sidewalks and roads. This is a perfect example of a
“land-use regulation [that] does not effect a taking [as it] substantially advance[s] legitimate state
interests.” Lucas, 505 U.S. at 1024 (quotations and citations omitted). On the basis of the
foregoing, the Court FINDS that Article 936 has not effected a taking and therefore DISMISSES
with prejudice Plaintiffs’ First Prayer for Relief in their Second Amended Complaint.
B.
Defendants’ Notice Regarding Article 936 and Its Application to Plaintiffs’ Property
Satisfied Procedural Due Process Requirements
In Plaintiffs’ Second Amended Complaint, they allege that “Defendants did not give proper
notice to the Plaintiffs of the adoption of Article 936.” 2d Am. Compl, Prayer for Relief ¶ 2, Ex. 5
to Notice of Removal, Doc. 1-1. Defendants, in their summary judgment motion, fashion their
argument for dismissal on the belief that Plaintiffs’ claim is based on Defendants’ failure to give
Plaintiffs personal notice regarding the passage of Article 936. However, Plaintiffs, in their response
to the summary judgment motion, base their procedural due process claim on Defendants failure to
provide a deprivation hearing prior to the final determination of whether Article 936 applied to
Plaintiffs’ property.5 The Court will address each argument in turn.
Under the Fourteenth Amendment, no state shall “deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. “Procedural due process
provides merely ‘a guarantee of fair procedures—typically notice and an opportunity to be heard.’”
5
Defendants contend that the Court cannot consider this claim as Plaintiffs did not properly
raise it in the Second Amended Complaint. The Court notes, however, that under Federal Rule of
Civil Procedure 8(e), “[p]leadings must be construed so as to do justice.” Rule 8(a)(2) requires “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). Based on the extensive recitation of facts contained in the Second Amended Complaint and
the broadly worded allegation, the Court believes this claim was properly presented in the Second
Amended Complaint. Accordingly, the Court will address Plaintiffs’ claim that they were denied
a deprivation hearing.
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Wolf v. Fauquier Cnty. Bd. of Supervisors, 555 F.3d 311, 323 (4th Cir. 2009) (quoting Mora v. City
of Gaithersburg, 519 F.3d 216, 230 (4th Cir. 2008) (citing Zinermon v. Burch, 494 U.S. 113, 125
(1990); Goss v. Lopez, 419 U.S. 565, 579 (1975))). “[T]he fundamental requirement of due process
is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’ (usually prior to
the deprivation of a protected interest).” Bogart v. Chapell, 396 F.3d 548, 556 (4th Cir. 2005)
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999)) (other citations omitted).
In asserting a procedural due process claim under the Fourteenth Amendment, a plaintiff
must show “(1) a cognizable ‘liberty’ or ‘property’ interest; (2) the deprivation of that interest by
‘some form of state action’; and (3) that the procedures employed were constitutionally inadequate.”
Iota Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 146 (4th Cir. 2009) (citing
Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988)). Property interests
“are created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law.” Bd. of Regents v. Roth, 408
U.S. 564, 577 (1972). Further, to have a property interest in a benefit, a person must
have a “legitimate claim of entitlement to it.” Id.
Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 436 (4th Cir. 2002). Here, Plaintiffs argue
they had a property interest in being able to fully develop their subdivision as originally planned in
2000. In order to do so, Plaintiffs had to obtain building permits for each plot in the subdivision.
Plaintiffs were deprived of this property interest by the application of Article 936 to their
subdivision—without the stormwater retention pond, no further permits would be issued.6
6
The Court believes there is a strong argument to be made that Plaintiffs do not have a
cognizable property interest in the issuance of the required building permits. See, e.g., Gardner v.
City of Baltimore Mayor & City Council, 969 F.2d 63, 68, 71 (4th Cir. 1992). However, as the
Court finds Plaintiffs’ procedural due process claim fails on other grounds and as neither party raised
this argument, the Court does not decide this issue.
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Accordingly, at issue in this claim is whether the notice and opportunity to be heard prior to the
application of Article 936 to Plaintiffs’ property were constitutionally adequate. On the facts
established on the record, the Court can only conclude that Plaintiffs were afforded due process of
law in the City’s decision to deny further building permits until Plaintiffs constructed the required
stormwater retention ponds.
In cases “involving regulation of land use through general police powers, [the procedures
due] are not extensive.” Tri-County Paving, 281 F.3d at 436 (citations omitted). In Mathews v.
Eldridge, the Supreme Court of the United States established a set of factors to be considered in
ascertaining whether the procedures provided prior to the deprivation of a protected interest were
constitutionally sufficient:
First, the private interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards; and finally,
the Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail.
424 U.S. 319, 335 (1976) (citation omitted); see also McLelland v. Massinga, 786 F.2d 1205, 1211
(4th Cir. 1986) (citing the Mathews v. Eldridge factors). Where a party is provided with “some
informal procedure, such as an opportunity to complain, available before deprivation, though an
actual hearing is delayed until after termination,” a pre-deprivation administrative hearing is
unnecessary. McLelland, 786 F.2d at 1213 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532 (1984)). In conducting this analysis, a court “‘must consult the entire panoply of predeprivation
and postdeprivation process provided by the state.’” Tri-County Paving, 281 F.3d at 436 (quoting
Fields v. Durham, 909 F.2d 94, 97 (4th Cir. 1990) (citing Zinermon v. Burch, 494 U.S. 113, 126
(1990))).
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With respect to the first argument—Article 936 was passed without due process of law—
Defendants assert that the City provided all the process that was due as it complied with the
procedures governing the passage of ordinances contained in West Virginia Code § 8-11-4 when the
City passed Article 936. See Aff. of Ben Newhouse, Doc. 47-5. There is no requirement that
personal notice be provided to those individuals who may be affected by the ordinance. Richardson
v. Town of Eastover, 922 F.2d 1152, 1158 (4th Cir. 1991) (“Fairness (or due process) in legislation
is satisfied when legislation is enacted in accordance with the procedures established in the state
constitution and statutes for the enactment of legislation.”). Further, Plaintiffs do not appear to
challenge Defendants’ compliance with these notice requirements, and instead limit their procedural
due process claim to the lack of a deprivation hearing. See Pls.’ Resp. 9, 14, Doc. 52. Accordingly,
the Court FINDS that Defendants provided all the notice and opportunity to be heard required to
satisfy Plaintiffs’ procedural due process rights in its passage of Article 936.
The Court likewise concludes that Plaintiffs have failed to provide sufficient evidence to
support their claim they were not provided a sufficient notice and opportunity to be heard prior to
the application of Article 936 to their property. What is most crucial to the Court’s analysis is the
second Mathews v. Eldridge factor—the risk of erroneous deprivation under the current procedures
and what value additional procedures would provide. Plaintiffs were first informed that Article 936
applied to their subdivision in October 2005, approximately four months after the ordinance was
passed. 2d Am. Compl. ¶ 13. Within one day of the notice, Plaintiffs met with representatives of
the City to discuss the application of Article 936 to Plaintiffs’ subdivision. Id. ¶ 14. During this
meeting, Plaintiffs were provided the opportunity to present their case that as their subdivision had
been previously approved, it should grandfather in; Defendants denied Plaintiffs’ request. Id.
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Subsequent to that meeting, Plaintiffs requested and were granted a hearing in front of the Hurricane
Sanitary Stormwater Board. Again, Plaintiffs were provided the opportunity to present their case,
and, again, Plaintiffs’ request was denied. Id. ¶¶ 15–16. Following this meeting, Plaintiffs had an
administrative hearing in front of the Hurricane Sanitary Stormwater Board, which again concluded
that Plaintiffs’ subdivision did not grandfather in under Article 936 and Plaintiffs’ subdivision,
without a stormwater retention pond, was in violation of the new ordinance. Id. ¶¶ 16–17.
Following this exhaustive and timely review at the City level, Plaintiffs then filed a complaint in the
Circuit Court of Putnam County. This case was went up to the West Virginia Supreme Court of
Appeals, which definitively concluded that Article 936 did apply to Plaintiffs’ subdivision.
The Court is unable to imagine any additional process that Plaintiffs are due. The City met
with Plaintiffs multiple times, and Plaintiffs were provided with ample opportunity to present their
case at the administrative level and, later, through judicial review. Further, the City’s interest in
passing Article 936 is significant. As detailed supra, the City exercised its police powers to decrease
the threat of flooding resulting from increased stormwater flow from impervious surfaces
constructed as part of new development and redevelopment projects. Article 936 is directed at
protecting the health and welfare of the City. In addition, any additional procedures would burden
the City with fiscal and administrative costs that, as detailed above, would provide little additional
meaningful review to Plaintiffs. In light of the significant opportunity provided to Plaintiffs to be
heard, and the legitimate interest of the City of Hurricane in passing its ordinance, the Court FINDS
that Plaintiffs were provided with all the process they were due, and therefore DISMISSES with
prejudice Plaintiffs’ Second Prayer for Relief in their Second Amended Complaint.
C.
Plaintiffs Were Not Denied an Exercise of Their First Amendment Rights
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In a First Amendment claim, to ascertain whether an individual’s speech in a public forum
was unconstitutionally restricted a court must first determine the nature of the forum. Steinburg v.
Chesterfield Cnty. Planning Comm’n, 527 F.3d 377, 384 (4th Cir. 2008) (citing Good News Club
v. Milford Cent. Sch., 533 U.S. 98, 106–07 (2001)). Here, Plaintiffs were denied the opportunity
to place a topic on the agenda of a City Council meeting. Meetings such as this are limited public
fora, “which governmental entities may create in a specified location for a limited use.” Id.; see also
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 281 (3d Cir. 2004) (finding that “matters presented
at a citizen’s forum may be limited to issues germane to town government”); White v. City of
Norwalk, 900 F.2d 1421, 1425 (9th Cir. 1990) (citing City of Madison, Joint Sch. Dist. No. 8 v. Wis.
Emp’t Relations Comm’n, 429 U.S. 167, 175 (1976); Hickory Fire Fighters Ass’n, Local 2653 v.
City of Hickory, 656 F.2d 917, 922 (4th Cir. 1981)).
In a limited public forum, the government may limit the type of speech, for example, by
“reserving [its forum] for certain groups or for the discussion of certain topics.” Steinburg, 527 F.3d
at 385 (quoting Good News Club, 533 U.S. at 106 (quoting Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 829 (1995))) (alteration in original). “Plainly, public bodies may confine
their meetings to specified subject matter and may hold nonpublic sessions to transact business.”
City of Madison, 429 U.S. 167, 176 n.8 (1976). The government may not, however, “discriminate
against speech on the basis of viewpoint, and any restriction must be reasonable in light of the
purpose served by the forum.” Steinburg, 527 F.3d at 385 (quotation marks and citations omitted).
The Fourth Circuit has accepted three general “contours” of the allowable restrictions of speech in
a limited public forum: (1) “Speech at public meetings called by government officials for discussion
of matters of public concern is entitled to normal first amendment protections against general
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restrictions or ad hoc parliamentary rulings by presiding officials”; (2) speech may be limited when
government officials “reasonably perceive [the speech] to be, or imminently to threaten, a disruption
of the orderly and fair progress of the discussion . . .”; and (3) while the government may not censor
based on the speaker’s viewpoint, it may on the basis of the proposed subject matter per se. Id. at
385–86 (citations omitted).
Here, Plaintiffs were not excluded from the City Council meeting. Rather, Plaintiffs’
proposed topic was not allowed on the agenda for the meeting as the topic related directly to the
ongoing litigation between the City and Plaintiffs; the City Council believed it inappropriate to
discuss the case on public record and without legal counsel present. See Aff. of Ben Newhouse ¶ 19,
Doc. 47-5. This is clearly an instance where a decision to exclude was made on the basis of
Plaintiffs’ status as parties to litigation, and not because of Plaintiffs’ viewpoint. See, e.g., Degrassi
v. Glendora, 207 F.3d 636, 646 (9th Cir. 2000) (finding the exclusion of a Council member
reasonable because of the potential conflict “between [plaintiff’s] role as a Council member and her
personal interest [in her right to defense by the Council]”). Plaintiffs spend a significant amount of
time in their response detailing how this denial of their First Amendment rights resulted in the
placement of liens on their property.7 However, their ability to discuss this issue with the City was
not precluded by the removal of their proposed topic from the City Council agenda. Defendants’
reason for excluding Plaintiffs from the City Council meeting agenda was based on their fear of
7
Plaintiffs also appear to invite the Court to decide whether the City complied with the
procedures governing the abatement and liens process. As this was not pleaded in the Second
Amended Complaint, it is not before the Court. Accordingly, the issue of whether or not the City
complied with the procedures for abatement and lien process will not be decided. This likewise
applies to the new claims against Ben Newhouse Plaintiffs appear to be asserting in their response;
Mr. Newhouse was removed as a defendant from this case pursuant to this Court’s Order dated
October 25, 2010 (Doc. 20).
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improper ex parte communications without counsel present. Accordingly, Plaintiffs’ ability to
discuss with Defendants was not permanently blocked; they could still have met with Defendants
regarding the letters in question with counsel present. See Pell v. Procunier, 417 U.S. 815, 824
(1974) (noting that alternative means of communication is a relevant factor in weighing First
Amendment rights again government interests). For the foregoing reasons, Plaintiffs’ First
Amendment claim is DISMISSED with prejudice.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment the motion is
GRANTED in part, and the Court DISMISSES with prejudice Plaintiffs’ constitutional takings
claim, procedural due process claim, and First Amendment claim. The motion is HELD in
abeyance with respect to Plaintiffs’ equal protection claim. Plaintiffs are DIRECTED to complete
a supplemental expert report within 14 days of the hearing held on April 18, 2011. Within 14 days
of the completion of the expert report, Defendants are DIRECTED to depose Plaintiffs’ expert.
Within 7 days of the deposition, Plaintiffs are DIRECTED to submit a supplemental memorandum
of law on the equal protection claim. Within 7 days of the filing of the supplemental briefing,
Defendants are DIRECTED to submit any reply. In light of the additional briefing on the equal
protection claim, the Court CANCELS the trial currently scheduled for May 3, 2011. The Court
DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of record and any
unrepresented parties.
ENTER:
April 19, 2011
ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE
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