1 The Honorable Richard H. Kyle, United St ates District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-1664

___________ Mark Koscielski; Barbara Bergstrom, * individually and d/b/a * Koscielski's Guns and Ammo, * * Appeal from the United States Plaintiffs/Appellants, * District Court for the * District of Minnesota. v. *
* City of Minneapolis, *
* Defendant/Appellee. *

___________ Submitted: October 13, 2005 Filed: January 25, 2006

___________ Before BYE, BEAM, and SMITH, Circuit Judges.

___________ BYE, Circuit Judge. Mark Koscielski appeals the district court’s 1 grant of summary judgment to the City of Minneapolis (City) on his claims th e City’s zoning regulation violated the Due Process, Equal Protection, and Takings Clauses. We affirm.-2- I

In 1995, Koscielski leased a site and ope ned a firearms dealership. Two months after opening his dealership, the City en acted a moratorium prohibiting firearms dealers from locating, relocating, or expanding within the city. The City unsuccessfully attempted to apply the moratorium retroactively against Koscielski. See Koscielski v. City of Minneapolis , No. 3-95-Civ.-954 (D. Minn. Nov. 2, 1995).

The City then enacted zoning ordinances requiring firearms dealers to obtain conditional use permits and locate within particular zones and only in locations sufficiently distant from day care centers a nd churches. In spite of the ordinance, Koscielski’s dealership was grandfathere d as a nonconforming use and therefore was permitted to remain even though it was located near both a day care center and a church. In 2002, however, Koscielski’s lease was canceled as part of a larger private redevelopment project. Koscielski sought to relocate in accordance with the zoning ordinances, but claims he was unable to do so.

After Koscielski’s lease was terminated , he leased a site for his firearms dealership in a zone which, under the zoning ordinances, does not permit firearms retailers. Although Koscielski located his d ealership farther from day care centers and churches than his previous site, the City issued a cease and desist order because he located in a zone where firearms retaile rs were prohibited and did not obtain a variance or rezoning of the site. Koscie lski challenged the zoning ordinances on due process, equal protection, and takings grounds, claiming the zoning ordinances impermissibly prohibit firearms retailers fro m locating within the city. The district court granted the City’s motion for summary judgment on all counts and dismissed Koscielski’s takings claim without prejudice as not ripe for review. Koscielski brings this appeal arguing the district court committed error by dismissing all his claims.-3- II

We review de novo a district court’s grant of summary judgment, applying the same legal standards used by the districtcourt. Voyageurs Nat’l Park Ass’n v. Norton , 381 F.3d 759, 763 (8th Cir. 2004). Summary judgment is proper when there is “no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” F ED

. R. C IV

. P. 56(c); Employers Mut. Cas. Co. v. Wendland , 351 F.3d 890, 893 (8th Cir. 2003). “We may affirm the di strict court’s grant of summary judgment on any ground supported by the record.” Woods v. DaimlerChrysler Corp. , 409 F.3d 984, 990 (8th Cir. 2005).

We view the evidence and reasonable in ferences drawn therefrom in the light most favorable to the nonmoving party. In re Derailment Cases , 416 F.3d 787, 792 (8th Cir. 2005). An issue of fact is genui ne when a “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). However, “[t]he nonm oving party may not rest on me re allegations or denials, but must show a genuine issue of material fact (or that the movant is not entitled to judgment).” Wenzel v. Mo.-Am. Water Co. , 404 F.3d 1038, 1039 (8th Cir. 2005) (internal quotation omitted).

A

Koscielski asserts an equal protecti on violation involving neither a suspect classification nor a fundamental right. Acco rdingly, Koscielski must prove he was treated differently by the government than si milarly situated persons and the different treatment was not rationally related to a legitimate government objective. City of Cleburne, Tex. v. Cleburne Living Ctr. , 473 U.S. 432, 439-40 (1985); Klinger v. Dep’t of Corrections , 31 F.3d 727, 731 (8th Cir. 1994); Bannum , Inc. v. City of St. Charles , 2 F.3d 267, 271 (8th Cir. 1993). To demonstrate this, Koscielski must prove2 Koscielski argues the City treats gun shows at the Minneapolis Convention Center, located adjacent to a church, differen tly than his dealership and such different treatment constitutes “invidious discri mination” among gun dealers. However, Koscielski has failed to establish commercial gun retailers at a particular location are identical to gun retailers at a gun show. Further, Koscielski has failed to provide any evidence of intentional or purposeful discri mination. He merely asserts the knowing unequal application of the zoning ordinan ce constitutes intentional discrimination. This is insufficient to establish an equal protection violation. SeeCent. Airlines, Inc. v. United States , 138 F.3d 334, 335 (8th Cir. 1998) (requiring intentional or purposeful discrimination to establish an equal protection claim)

.

3 We take judicial notice the City enact ed the challenged zoning ordinances to protect public safety.
-4- similarity to other individuals or entitie s receiving favorable treatment. Carter v. Arkansas , 392 F.3d 965, 968-69 (8th Cir. 2004); Klinger , 31 F.3d at 731.

Koscielski has provided no evidence his fi rearms dealership is similar to any other firearms dealership receiving favorable treatment. Indeed, the record indicates no other firearms dealership s are located in the city. 2 Similarly, Koscielski has provided no evidence of similarity to othe r retail establishments to overcome the obvious difference in implications for public safety between gun s hops and other retail establishments. 3 Even if firearms d ealerships could be considered identical to other retail establishments receiving favorable tr eatment, because the operation of a firearms dealership is not a constitutionally-protected right, the City ordinance must be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc. , 508 U.S. 307, 313 (1993); Bannum , 2 F.3d at 271. Indeed, even “[u] nequal application of the regulation in question . . . does not violate equal prot ection unless there is shown to be present in it an element of intentional or purposeful discrimination.” Cent. Airlines, Inc. v. United States , 138 F.3d 334, 335 (8th Cir. 1998) (internal quotation omitted).-5- Certainly, the implications for public safety warrant re gulating and zoning firearms dealerships differently than othe r retail establishments and gun shows, neither of which stores weapons or ammunition for extended periods of tim e. Koscielski has failed to undermine this rati onal basis for the differentiation and therefore has failed “to negate every conceivable basis wh ich might support” the ordinance. Beach Communications, Inc. , 508 U.S. at 315 (internal quotation omitted). Further, Koscielski has failed to provide evidence of intentional or purposeful discrimination. Accordingly, the ordinance must be upheld and the district court affirmed.

B

Koscielski argues the city ordinance violates the Due Pro cess Clause because it effectively eliminates the ab ility of firearms dealerships to relocate within city limits and exists because of the City’s antipathy to firearms retailers. Koscielski's argument does not touch on a fundamental right or liberty interest. Accordingly, to prove a due process violation, Koscielski must prove th e zoning ordinance is not rationally related to a legitimate government interest. See generally Chesterfield Dev’t Corp. v. Chesterfield , 963 F.2d 1102 (8th Cir. 1992). It is undisputed the purpose of the City’s zoning ordinance, to protect public safety, is legitimate.

Due process claims involving local land use decisions must demonstrate the “government action complained of is truly i rrational, that is something more than . . . arbitrary, capricious, or in violation of state law.” Anderson v. Douglas County , 4 F.3d 574, 577 (8th Cir. 1993) (internal quotation omitted). The action must therefore be so egregious or extraordinary as to shock the conscience. See County of Sacramento v. Lewis , 523 U.S. 833, 846-47 (1998); Burton v. Richmond , 370 F.3d 723, 729 (8th Cir. 2004).

Koscielski argues the City ordinance leaves “a tiny handful of parcels in private land, most occupied by existing restaurant s and adult entertainment establishments,4Koscielski also argues this is disput ed by unofficial zoning maps he prepared. He argues “[v]irtually all of the addresses set forth are clearly disqualified under the zoning maps.” Appellant’s Br. at 7-8 n.4. This assertion, however, leaves open the possibility there exist some addresses meeting the requirements of the zoning ordinances and is insufficient to create a genui ne issue of material fact. Further, the geographic information specialist who prepared the maps acknowledges the maps may not be wholly accurate. App. at 105-07.
-6- not likely to move or become available at a nytime in the near futu re.” Appellant’s Br. at 17. Taking this statement as true, Kosc ielski has failed to establish a substantive due process violation.

Koscielski likens his case to Alexander v. City of Minneapolis , 698 F.2d 936 (8th Cir. 1983) (concluding, in an adult en tertainment case, a dozen possible locations were inadequate to support 30 relocating bus inesses), because he suggests the zoning ordinances, which made retail sales of firear ms out of residences improper, will force the residential retailers to relocate and therefore demand will greatly exceed supply of locations. Although Koscielski improperly applies the constitutional analysis to his case, his argument nevertheless fails because he has not de monstrated any residential retailers would relocate to a commercial loca tion. Further, the record demonstrates Koscielski was aware of vacant lots meeting the requirements of the zoning ordinances. See App. at 109. Additionally, the C ity prepared a list of addresses which, under the zoning ordinances, would permit the retail sales of firearms. Although many of these locations were occupied, 4 this evidence is sufficient to demonstrate the existence of potential lo cations. Even when obligated under a constitutional standard to provide reasona ble alternatives, a municipality is not obligated to ensure all interested parties are able to occupy a location for any purpose at any given time. Its obligation extends only so far as to ensure ample possibilities for location exist; Koscielski must then fend fo r himself in the real estate market. See City of Renton v. Playtime Theatres, Inc. , 475 U.S. 41, 53-54 (1986). In a nonconstitutional case, there is no such obligati on to ensure reasonable alternatives. Upon-7- review of the record, no reas onable juror could conclude the City’s zoning ordinance was so irrational and egregious as to shock the conscience.

Koscielski also argues the ordinance was “motivated by a personal and political animus, totally unrelated to any legitimat e governmental function,” thereby making the ordinance “truly irrational.” Appellant ’s Br. at 22. Although this allegation might support a due process violation, see, e.g. , Scott v. Greenville County , 716 F.2d 1409 (4th Cir. 1983), the allegation lacks evidentiary support. Kosciels ki argues within two months of opening his firearms dealership in 1995, the City passed a moratorium barring all uses within the C ity and attempted to apply th e moratorium retroactively. Koscielski argues when this failed, the C ity enacted the zoning ordinance designed to prevent the shop from relocating. Kosciels ki further argues a “city official then directly touted the fact that, as part of a redevelopment plan atAppellant’s location the landlord was being required to cancel A ppellant’s lease.” Appellant’s Br. at 22- 23. Koscielski doesn’t, however, suggest th e City forced the can cellation of the lease. Koscielski’s other evidence is patently in sufficient to support a reasonable inference of improper personal or political motives, let alone conscience-shocking behavior. Accordingly, the district court properly di smissed Koscielski’s due process claim with prejudice.

C

The district court dismissed Kosciels ki’s federal and state takings claims without prejudice as not ripe for review. Koscielski suggests because the case was removed, the City should be required to waive its ripeness cha llenge. Koscielski’s argument, however, would require the Court to refuse to consider whether it has subject matter jurisdiction over the case and is therefore untenable.

“[I]f a state provides an adequate proce dure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has-8- used the procedure and been denied ju st compensation.” Williamson County Reg’l Planning Comm’n v. Hamilton Bank , 473 U.S. 172, 194-97 (1985). There exists a procedure in Minnesota by which individua ls may seek just compensation. See Wilson v. Ramacher , 352 N.W.2d 389, 394 (Minn. 1984). Failure to follow such a procedure or have the Minnesota courts rule an inverse condemnation action may not be brought makes a taking claim not ripe fo r review by the fe deral courts. See Kottschade v. City of Rochester , 319 F.3d 1038, 1041 (8th Cir. 2003); Carpenter Outdoor Advertising Co. v. City of Fenton , 251 F.3d 686, 691 (8th Cir. 2001). Therefore, we lack jurisdiction over Koscie lski’s takings claim. Pub. Water Supply Dist. No. 8 v. City of Kearney , 401 F.3d 930, 932 (8th Cir. 2005). Accordingly, the district court properly dismissed it without prejudice.

We therefore affirm the district court in all respects.

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