California Anti-SLAPP Project

Gorman Towers v. Bogoslavsky

Cite as: 626 F.2d 607


GORMAN TOWERS, INC. and James Lambeth, Appellants,
v.
Leonard BOGOSLAVSKY; Gerald D. Martin; George Jones; Art Robertson, III; Eugene Blackwell; H. L. "Bud" Johnson; Stephen D. Lease; Ellis Yoes; H. Clay Robinson; E. Clyde Goines and Shelton Clark, Appellees.

No. 79-1760.
United States Court of Appeals, Eighth Circuit.
Submitted April 17, 1980.
Decided July 22, 1980.

COUNSEL:
Sam Sexton, Jr., Fort Smith, Ark., for appellants.
Jerry L. Canfield (argued), Daily, West, Core, Coffman & Canfield, Fort Smith, Ark., on brief, for appellees, Bogoslavsky, et al.
H. Clay Robinson, Pryor, Robinson, Taylor & Barry, Fort Smith, Ark., for appellees, Yoes, et al.

Before STEPHENSON, Circuit Judge, KUNZIG,[FN*] Court of Claims Judge, and McMILLIAN, Circuit Judge.

FN* The Honorable Robert L. Kunzig, Judge, United States Court of Claims, sitting by designation.


STEPHENSON, Circuit Judge.

Gorman Towers (a developer) and James Lambeth (an architect) appeal the dismissal of their damage claims under 42 U.S.C. s 1983. The complaint named as defendants: (1) the city directors of Fort Smith, Arkansas, (2) the Fort Smith City Administrator, (3) a group of landowners who opposed a housing project proposed by Gorman Towers, and (4) the landowners' attorney. The district court [FN1] dismissed the claim against the public officials on the basis of legislative immunity and dismissed the claim against the private individuals on the basis of a First Amendment immunity. We affirm.

[FN1] The Honorable Paul X Williams, United States District Judge for the Western District of Arkansas.
The gravamen of the complaint is that appellants planned to build an apartment complex on a particular site in Fort Smith, and that Fort Smith city officials and residents conspired to prevent construction of the proposed complex through enactment of an unconstitutional amendment to the city's zoning ordinance. The zoning amendment was enacted by the city's Board of Directors. We are told without contradiction that the Board's seven members are elected and that they exercise the city's legislative and executive authority.

The principal allegations of the complaint are as follows. Gorman Towers planned to build a 150-unit high-rise apartment complex to house persons who are elderly or physically handicapped. On or about November 18, 1977, Gorman Towers acquired an option to buy about nine acres in the Sutton Estates subdivision in Fort Smith,[FN2] an area that for sixteen years had been zoned to permit multi-family housing units of the kind Gorman Towers contemplated. Believing that the apartment complex would comply with all city housing regulations, Gorman Tower officers proceeded to contract for the necessary professional services.

[FN2] The sellers of the option to buy were co-plaintiffs in this action but do not join this appeal.
Trouble began, however, in the spring of 1978. In that period City Director Bogoslavsky falsely stated that construction work would be performed by an out-of-town company. Defendants also falsely stated or implied that the new project would cause flooding, lower residential property values, and be inhabited by black persons drawn out of a notoriously delapidated housing project in another section of Fort Smith.

Matters took another turn in early August, when H. Clay Robinson, an attorney representing landowners residing near the site of the proposed complex, petitioned the Fort Smith Planning Commission to rezone the land on which the complex was to be built from multi-family to single-family and duplex. The Commission rejected the petition. Shortly thereafter, the complaint alleges, the city directors met secretly with City Administrator Lease and agreed that no building permit would be issued to Gorman Towers, notwithstanding Gorman Towers' compliance with all city building requirements. This meeting was at the instigation of Lease, attorney Robinson, and Robinson's client Yoes.

On August 16, Robinson petitioned the Board of Directors to reverse the Planning Commission and rezone the Gorman Towers site from multi-family to single-family and duplex. The Board granted this petition on September 6, 1978, several of the defendants (City Directors Robertson and Martin and attorney Robinson) stating the rezoning was to block the Gorman Towers project.

Appellants claim these actions deprived them of equal protection under the Fourteenth Amendment, and bring a pendent common law claim sounding in defamation. Appellants sought over $1,700,000 in actual and punitive damages. [FN3]

[FN3] Although the complaint includes a boiler plate request for appropriate equitable relief, the district court's opinion emphasized that appellants' action was for damages only. Gorman Towers, Inc. v. Bogoslavsky, No. 78-2121, slip op. at 1, 2, 5, 8 (W.D.Ark. Aug. 28, 1979). Appellants have not resisted this interpretation of the lawsuit and we conclude they have dropped all but their claim for damages.
The district court dismissed the complaint as to all defendants upon the following analysis. The court first observed that "(t)hough plaintiffs urged at oral argument that defendants conspired to illegally deprive plaintiffs of a building permit, we note that plaintiffs never applied for a building permit and never had their application rejected. The only action which is properly the subject of this action, therefore, is the zoning ordinance." Gorman Towers, Inc. v. Bogoslavsky, No. 78-2121, slip op. at 4 (W.D.Ark. Aug. 28, 1979). The court reasoned that the city officials were absolutely immune from personal liability because "the members of the Fort Smith City Board of Directors were acting in a legislative capacity when they enacted the city ordinance which rezoned the plaintiffs' property as to keep the (general) area a residential area consisting of single-family dwellings or duplexes." Id. at 6-7. The court reasoned that The action against Stephen D. Lease, who is the City Administrator, must also be dismissed. If Lease was allowed to vote on the zoning ordinance, he is entitled to the same absolute, legislative immunity afforded other members of the Board of Directors. If he did not vote on the zoning ordinance, he cannot be said to have committed any act which affected the plaintiffs. Id. at 7-8. The private landowners and the attorney they hired to represent them were also held absolutely immune because (t)o hold that they are liable for petitioning the City Board of Directors to rezone the property to R3-single family and duplexes, would violate the First Amendment. The defendant, H. Clay Robinson, also cannot be held liable as he was counsel for Yoes, Goines and Clark, hired to assist them in petitioning for the zoning change. Id. at 7. In the absence of a federal claim, the pendent claim was also dismissed. Id. at 8. [FN4]
[FN4] In dismissing the complaint as to all defendants, the district court expressly addressed only appellants' section 1983 claim, although the complaint also invoked 42 U.S.C. ss 1985 and 1986. Some of the complaint's allegations might arguably be actionable under section 1985(3) even if not actionable under section 1983. See generally, e. g., Azar v. Conley, 456 F.2d 1382, 1389 (6th Cir. 1972) (slanderous remarks not actionable under section 1983 but might be integral part of section 1985(3) claim); Action v. Gannon, 450 F.2d 1227, 1229 n.2, 1231-33 (8th Cir. 1971) (en banc) (section 1985, unlike section 1983, covers conspiracies even absent action under color of state law). The district court indicated a section 1985(3) claim would not be maintainable, however, when it concluded the complaint did not allege the zoning amendment was motivated by discrimination against racial minorities, the poor, the handicapped, or the elderly. Gorman Towers v. Bogoslavsky, supra, slip op. at 4. See Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (section 1985(3) claim requires invidious, class-based discrimination). In any event, appellants have not attacked the effective disposition of their section 1985 claim (and thus their section 1986 claim as well) and we consider the issue abandoned. Fed.R.App.P. 28(a)(2), (4); United States v. Robertson, 588 F.2d 575, 577 n.2 (8th Cir. 1978). Appellants have limited their appeal to an attack on the district court's holding that the local officials are absolutely immune from a suit for damages in enacting the ordinance.
Reading the complaint liberally and taking its allegations as true, it is apparent that the city directors' rezoning was without rational basis and therefore deprived appellants of property without the due process or equal protection guaranteed them by the Fourteenth Amendment. See, e.g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 263, 97 S.Ct. 555, 562, 50 L.Ed.2d 450 (1977). Appellants' claim thus falls within the expansive wording of 42 U.S.C. s 1983, which affords a damage remedy against "every person" who, under color of state law, deprives another of constitutional rights.

I. Immunity of City Officials

Notwithstanding the unqualified nature of its language, section 1983 was not intended to abrogate the federal common law immunities enjoyed by persons performing certain governmental functions. See Owen v. City of Independence, 445 U.S. 622, 637, 100 S.Ct. 1398, 1408-09, 63 L.Ed.2d 673 (1980). Official immunities are of two types: absolute and qualified. See generally id. at 1408-09 (noting absolute immunities for legislators, judges, and prosecutors, qualified immunities for prison officials, state hospital administrators, school board members, and governors and other executive officers). Absolute immunity defeats a damage suit at the pleading stage, once it appears the actions complained of were within the immunity's scope; qualified immunity is available only if the evidence shows that those actions were taken in good faith, i.e., with a reasonable belief that they were lawful. Imbler v. Pachtman, 424 U.S. 409, 419 n.13, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

The official immunity question in this case is whether the city directors were absolutely immune with respect to their enactment of the allegedly unconstitutional zoning amendment. Building upon the district court's holding that the directors' rezoning was a legislative act [FN5] we begin with the proposition that state and regional legislators have an absolute federal common law immunity from liability for damages occasioned by their legislative acts, an immunity which Congress left undisturbed with its passage of the civil rights provision now codified at 42 U.S.C. s 1983. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (absolute immunity for members of state-created regional land planning agency acting in legislative capacity); Tenney v. Brandhove, 341 U.S. 367, 376-78, 71 S.Ct. 783, 788-89, 95 L.Ed. 1019 (1951) (absolute immunity for state legislators). Cf. Supreme Court of Virginia v. Consumers Union, --- U.S. ----, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) (justices acting in legislative capacity have absolute immunity from injunctive and declaratory relief as well as from damages). Appellants seek to distinguish these cases and argue that absolute legislative immunity should not extend to the purely local level of government.[FN6] Alternatively, appellants argue that, notwithstanding an absolute legislative immunity, defendants also injured them by actions that were not performed in a legislative capacity.

[FN5] Appellants do not contest this specific holding. Only with respect to the city directors' alleged decision to deny a building permit do appellants argue that defendants acted in a nonlegislative capacity. See section III infra. We therefore do not decide that zoning in all its forms is necessarily a legislative act for purposes of determining the scope of official immunity. Although zoning is ordinarily a legislative function, see, e.g., Village of Belle Terre v. Boraas, 416 U.S. 1, 4, 9, 94 S.Ct. 1536, 1538, 1541, 39 L.Ed.2d 797 (1974), we note that some courts, for purposes of determining whether procedural due process is required, have decided a municipal zoning act that is legislative on its face may be construed to be administrative in character. See, e. g., City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 683-85, 96 S.Ct. 2358, 2366-2367, 49 L.Ed.2d 132 (1976) (Stevens, J., noting in dissent that several state courts have held rezoning to be quasi-judicial or administrative in nature where specific parcels and particular issues are involved); Developments in the Law, Zoning, 91 Harv.L.Rev. 1427, 1508- 13 (1978). As to some reclassifications of property, then, it might be argued that municipal legislators have only a qualified immunity because they exercise only a limited discretion and do not operate under the legislator's duty to "conceive public policy from the myriad policy options open to the sovereign." Adler v. Lynch, 415 F.Supp. 705, 712 (D.Neb.1976). That argument, as we have said, is not urged here.

FN6. The appellants note the Supreme Court has expressly reserved the question of local legislative immunity. Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 1179 n.26, 59 L.Ed.2d 401 (1979). Only an absolute immunity would permit dismissal of the complaint on the basis of official immunity. Gomez v. Toledo, --- U.S. ----, ----, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980) (complaint need not allege bad faith; qualified immunity must be pleaded by defendant).

Note! This case is continued in Part Two


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