ELR Citation: ELR 20442
No(s). 88-2522-C-5 (E.D. Mo. Sep 24, 1990)

The court holds that a city violated a landfill operator's constitutional rights by arbitrarily denying the operator a permit for the landfill. The court first holds that the operator's action against the city is appropriate under the Civil Rights Act, 42 U.S.C. §1983. Courts have held that a corporation is a person for the purposes of bringing a §1983 action and that cities are persons for the purpose of §1983 liability. The court next holds that the city is not immune from liability under §1983, because in acts of official governmental policy it failed to remedy a known pattern of constitutionally offensive conduct by its subordinates. The city considered the landfill operator's permit application for two years after the city's planning and zoning commission submitted its recommendation and made no move to issue the reports and reasoning mandated by its permitting ordinance. In addition, the city council knew that its subordinates had issued 69 summonses during a 13-month period to the landfill operator's agents for alleged violations of the ordinance, but took no action either to have the summonses dismissed or to terminate their issuance. The court holds that, because the operator complied with the ordinance and the city did not, the city's actions constituted an unconstitutional taking of property without just compensation. The operator had a vested property right in the landfill site as a perfected prior nonconforming use before the city's incorporation and continued to use the site after the city's incorporation and the enactment of the permitting ordinance. The city's permitting ordinance cannot be construed as exempting prior existing uses, and the transfer of ownership and licenses from the prior owner to the operator did not effect a termination of the prior existing use, because it is well recognized that use follows the land and not the person. The court further holds that, by violating its own permitting ordinance requirements when it denied the permit without a statement of the reasons for the denial, the city violated the operator's substantive due process rights. The operator had complied with all the requirements of the ordinance yet was denied appropriate treatment of its application. The court also holds that the summonses issued to the operator's agents violated the operator's procedural and substantive due process rights. The summonses were an attempt to prosecute the operator for ordinance violations that were invalid or inapplicable as applied to the operator. The court notes that, as a result of its holdings, it need not address the constitutionality of the manner in which the city adopted its permitting ordinance or alleged violations of the operator's equal protection rights based on contrasting treatment of another local landfill. Finally, the court holds that the operator is not entitled to damages. During the pendency of the litigation, the operator was not required to stop operating the landfill. However, the court permanently enjoins the city from interfering with the operator's operation of the landfill for uses allowed under current state and county waste regulations and under the city's zoning ordinance.

Counsel for Plaintiffs
Thomas M. Blumenthal, Gerald A. Rimmel, Michael Waxenberg
Susman, Schermer, Rimmel & Shifrin
Aragon Place, 10th Fl., 7711 Carondelet Ave., St. Louis MO 63105
(314) 725-7300

Counsel for Defendants
Robert Krehbiel
Evans & Dixon
Marquette Bldg., 16th Fl., 314 N. Broadway, St. Louis MO 63102-2093
(314) 621-7755