[Editor's note: footnotes (if any) trail the opinion]
[1] UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[2] James R. Anderson, Appellant/Cross-Appellee,
v.
[3] Douglas County; Dennis Nagle, Appellees/Cross-Appellants.
[4] 92-3758/92-3959
BLUE BOOK CITATION FORM: 1993.C08.786 (http://www.versuslaw.com)
[5] Date Submitted: June 14, 1993
[6] Date Reported: Rehearing and Rehearing En Banc Denied October
1, 1993 at: 1993 U.S. App.
[7] Appeal from the United States District Court for the District of
Minnesota. District No. 3-91-CV-574. Honorable Richard Kyle, District
Judge.
[8] APPELLATE PANEL:
[9] Before JOHN R. GIBSON, MAGILL, and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
[10] DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE ARNOLD
[11] This appeal arises from the district court's grant of summary
judgment to defendants in an action brought pursuant to 42 U.S.C. §§
1983, 1985, and 1986, raising equal protection and due process issues in
a land-use dispute, and also alleging common-law conspiracy.
[12] Appellant James Anderson, owner of a parcel of land in
Alexandria Township, Douglas County, Minnesota, sought to use the land
to "thinspread" certain contaminated soil generated by the City of
Minneapolis. Thinspreading is a method of soil treatment by which
petroleum-contaminated soil is incorporated into healthy, native soil so
that the naturally occurring microorganisms in the native soil
biodegrade the petroleum. In response to Anderson's general inquiry
about thinspreading in May, 1991, a Minnesota Pollution Control Agency
representative in Douglas County inspected Mr. Anderson's land. As noted
in the MPCA document on Land Application of Petroleum-Contaminated Soil,
that agency's approval of thinspreading is contingent on compliance with
applicable zoning ordinances and requirements and approval by local
governmental authorities.
[13] The City of Minneapolis contacted Mr. Anderson on July 9, 1991
regarding the availability of his land for the disposal of certain
contaminated soil. Although Mr. Anderson and City of Minneapolis
negotiated price, they did not enter into a firm contract because Mr.
Anderson's ability to perform the thinspreading was contingent on local
approval by the City's July 25, 1991, deadline.
[14] Anderson contacted the Alexandria Township Board on July 10 and
received their approval of the thinspreading on July 17. Anderson next
sought the approval of the Douglas County Planning and Zoning Commission
and contacted Dennis Nagle, the Zoning Administrator on July 17. Nagle
informed plaintiff that a "conditional use permit" would be required and
sent Anderson a permit application, information summarizing the permit
application process, and relevant portions of the Douglas County Zoning
Ordinance. Anderson did not appeal the requirement of a conditional use
permit to the Board of Adjustment, as he was entitled to do under the
Douglas County Zoning Ordinance. Anderson submitted his application on
July 22, and pursuant to the process by which conditional use permits
are issued, the Douglas County Zoning and Planning Commission held a
public hearing after first giving ten days' notice of the proceeding. At
that hearing on August 6, 1991, the Commission voted to recommend denial
of the permit, and the County Board approved that recommendation on
August 13. The reasons stated by the Board included Anderson's failure
or refusal to explain the proposal; lack of separation of site from
residential zoned land and adverse effect on that land; lack of
conformity with the county's land use plan; inconsistency with ordinance
goals of promoting public health, safety, comfort and welfare of Douglas
County people; and opposition from area property owners. Finally, the
Board indicated that the application was inconsistent with its policy,
"adopted November 13, 1990, regarding thin spreading of contaminated
soil originating outside Douglas County." Meanwhile, on July 25, 1991,
the City of Minneapolis had informed Anderson that it could no longer
consider his site for thinspreading because he had not yet received
approval.
[15] Anderson brought this action against various parties in
September, 1991. The final amended complaint lists only Douglas County
and Dennis Nagle as defendants. Anderson's suit alleged violation of his
constitutional rights to due process and equal protection, as well as
conspiracy to violate those rights. Anderson claimed damages in the
amount he would have received from the City of Minneapolis for the
anticipated thinspreading contract. On cross motions for summary
judgment, the district court ruled in favor of defendants. Anderson
appeals, arguing that violation of his equal protection and due process
rights by the Douglas County and Nagle subjects Nagle to liability under
42 U.S.C. 1983. Anderson also argues that the defendants engaged in a
conspiracy. Defendants cross-appeal the district court's denial of their
request for fees.
I.
[16] Anderson contends that denial of his application to thinspread
violated his Fourteenth Amendment right to equal protection because he
was required to obtain a conditional use permit, a requirement
apparently not imposed on applicants until 1991. Anderson relies upon
the fact that before 1991 thinspreading was considered a permitted use
under the Douglas County Zoning Ordinance and did not require any
specific approval by local zoning authorities.
[17] A party claiming a violation of equal protection must establish
that he or she is "similarly situated" to other applicants for the
license, permit, or other benefit being sought, particularly with
respect to the same time period. Anderson failed to establish that
similarly situated persons did not have to obtain conditional use
permits. Indeed, the only evidence he presented tends to prove that
other parties submitting thinspreading applications in 1991 were also
required to obtain conditional use permits. As for the pre-1991
applicants, a city or county is entitled to change its interpretation of
an ordinance as long as there is a rational basis for the change.
Carolan v. City of Kansas City, 813 F.2d 178, 181 (8th Cir. 1987); see
also Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 471
(8th Cir. 1991). Nagle testified in his deposition that he determined in
1991 that thinspreading, previously a "permitted use", should be
reclassified as a "conditional use" because of the growing number of
thinspreading applications and because of the public health issues
associated with disposal of contaminated soils. We cannot say that
Nagle's decision to regulate thinspreading more closely was without a
rational basis.
II.
[18] Anderson contends that denial of the conditional use permit
violated his right to substantive due process. Specifically, he argues
that the decision to require a conditional use permit for thinspreading
was irrational because it was not related to public health, safety, or
welfare concerns. Anderson also contends that any attempt to apply
county zoning regulations to this type of thinspreading is unlawful
because local authority to regulate petroleum-contaminated soil is in
conflict with state and federal law.
[19] A plaintiff asserting a substantive due process claim must
establish that the government action complained of is "truly
irrational", that is, "something more than . . . arbitrary, capricious,
or in violation of state law." Chesterfield Development Corp. v. City of
Chesterfield, 963 F.2d 1102 (8th Cir. 1992) (quoting Lemke v. Cass
County, 846 F.2d 469, 470-72 (8th Cir. 1987)(en banc)(Arnold J.,
concurring)). To illustrate this heightened standard for substantive due
process claims in the zoning context, the Chesterfield court gave as an
example of such irrationality a zoning ordinance applying only to
persons whose names begin with a letter in the first half of the
alphabet. Chesterfield, 963 F.2d at 1104. We agree with the district
court that Anderson has failed to present evidence from which a
reasonable fact-finder could conclude that Douglas County's decision not
to allow the thinspreading was "truly irrational."
[20] Anderson also contends that Douglas County cannot regulate
thinspreading because the City of Minneapolis, as the real party in
interest with regard to the thinspreading, has the power under a
Minnesota statute to condemn the land for that purpose. Anderson cites
Town of Oronoco v. City of Rochester, 293 Minn. 468, 197 N.W.2d 426
(1972), for the proposition that this local zoning ordinance cannot
prevail against a city with the power of eminent domain. We agree with
the district court that Town of Oronoco does not stand for so broad a
proposition. The Minnesota Supreme Court in Town of Oronoco adopted a
"balancing-of-public-interests test for the resolution of conflicts
between the exercise by governmental agency of their police power and
their right of eminent domain." Town of Oronoco, 197 N.W.2d at 429. Even
assuming that the City of Minneapolis is the real party in interest
because of its need to dispose of the contaminated soil, we cannot say
that need outweighs the county's interest in regulating thinspreading
for reasons related to public health, safety, and welfare. This is
especially so here because the City of Minneapolis was able to secure
another site for the thinspreading.
[21] Finally, Anderson argues that, under Minnesota law, local
authorities may not regulate environmental protection and resource
recovery. Anderson directs us to a provision of the Minnesota statutes
that provides that when the MPCA "has requested a person who is
responsible for a release or threatened release [of waste] to take any
response action . . . no political subdivision shall request or order
that person to take any action that conflicts with the action requested
by the ." Minn. Stat. § 115B.17, subd. 11 (1987). Anderson argues that
the MPCA's oversight of waste disposal and their preliminary approval of
his site precludes regulation by local entities. His argument, however,
ignores the authority given to local governmental units to regulate
waste to the extent that such regulation does not conflict with state
regulation. See Minn. Stat. §§ 400.16 (1982) and 400.161 (1981). It also
ignores local authority to regulate land use. See Minn. Stat. § 394.21,
subd. 1 (1959). Indeed, the MPCA application for spreading of soil
indicates that local regulations may apply. Conflict exists only when an
ordinance and a statute contain express or implied terms that are
irreconcilable; no conflict exists where an ordinance is merely
additional and complementary to, or in aid or furtherance of, a statute.
Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 143 N.W.2d
813 (1966). The authority of the MPCA does not here conflict with that
of the local government entities. It is, if anything, complementary.
Anderson has similarly failed to establish any conflict between local
regulation and federal environmental regulations.
III.
[22] Anderson also argues that the local decision not to allow the
thinspreading denied his right to procedural due process. In the zoning
context, assuming a landowner has a protectible property interest,
procedural due process is afforded when the landowner has notice of the
proposed government action and an opportunity to be heard. See
Littlefield v. City of Afton, 785 F.2d 596, 603 (8th Cir. 1986). (For
further elaboration on Littlefield and substantive due process, as
opposed to procedural due process, see Chesterfield Development Corp. v.
City of Chesterfield, 963 F.2d 1102, 1104-05 (8th Cir. 1992).) Anderson
contends that his right was denied because the volatile nature of the
August 6 public hearing prevented him from effectively presenting his
case. We disagree. Anderson not only had an opportunity to present his
case to the zoning commission on August 6, he also received notice of
the August 13 County Board meeting where he could have asked the Board
not to approve the zoning board recommendation. But Anderson did not
attend the August 13 meeting, nor did he appeal the requirement of a
conditional use permit to the Board of Adjustment. Anderson cannot
complain of a violation of procedural due process when he has not
availed himself of existing procedures. See Suckle v. Madison General
Hosp., 499 F.2d 1364, 1366-67 (7th Cir. 1974).
IV.
[23] Anderson also alleges that Douglas County and Alexandria
Township conspired against him to violate his constitutional rights and
to deny him permission to thinspread. He alleges that Nagle and an
Alexandria Township official both opposed his application and exchanged
information about it before either the township or county reached a
decision. Common-law conspiracy involves a combination of persons to
accomplish either an unlawful purpose or a lawful purpose by unlawful
means. Harding v. Ohio Casualty Ins. Co., 230 Minn. 327, 337, 41 N.W.2d
818, 824 (1950), cited in American Computer v. Jack Farrell Implement,
763 F. Supp. 1473, 1489 (D.Minn.1991). To prove conspiracy, a party must
specifically present facts tending to show agreement and concerted
action. Conclusory allegations are insufficient. See Sooner Prod. Co. v.
McBride, 708 F.2d 510, 512 (10th Cir. 1983). In the preceding analysis
we have concluded that no unlawful purpose was achieved. Anderson has
failed to allege specific facts that would create an issue of material
fact as to the existence of a conspiracy between Douglas County and
Alexandria Township to use unlawful means to achieve what we have
concluded is a lawful end. The district court therefore correctly
granted the defendants' summary judgment motion. V.
[24] Finally, we consider defendants' cross appeal for attorneys
fees. Defendants contend that they are entitled to fees under Rule 11 of
the Federal Rules of Civil Procedure or the Minnesota equivalent. Minn.
Stat. § 549.21 (1986). We reverse a trial court's denial of fees only in
the event of an abuse of discretion. See, e.g., NAACP-Special
Contribution Fund v. Atkins, 908 F.2d 336, 339 (8th Cir. 1990) (citing
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 L. Ed. 2d 359, 110 S.
Ct. 2447 (1990)); National Recruiters, Inc. v. Toro Co., 343 N.W.2d 704,
708-09 (Minn. App. 1984). While we note that the plaintiff, a lawyer
appearing pro se, appears to have sometimes acted with unbridled zeal,
we cannot say that the district court abused its discretion in denying
defendants motion for fees. Because defendants do not argue that they
are entitled to fees under 42 U.S.C. § 1988, we need not consider that
alternative basis for an award.
VI. For these reasons, we affirm.
[25] CASE RESOLUTION
[26] Affirmed
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
Republished on the ACFC site by written permission of Versuslaw.
Copyright 1996 VersusLaw, Inc. (206) 250-0142.
http://www.versuslaw.com
19930614
1993.C08.786