United States District Court, D. Nebraska
SHANE HARRINGTON; MELTECH, INC.; and MIDWEST GIRLS CLUB, Plaintiffs,
SEWARD COUNTY, NEBRASKA, a municipal entity, Defendant.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
plaintiffs, Shane Harrington, Meltech, Inc., and Midwest
Girls Club (collectively,
"Harrington"), 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.
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.
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.
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. 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.
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.
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
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.
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.
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).
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.
2007 and 2015 Ordinances
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.
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."
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.
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.