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Harrington v. Seward County

United States District Court, D. Nebraska

March 22, 2017

SEWARD COUNTY, NEBRASKA, a municipal entity, Defendant.


          John M. Gerrard United States District Judge.

         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 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 1-2; 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 relief.


         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 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.

         1. Standing

         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-in-fact 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) ...

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