No. 95-4070

Charles Goss, * * Appellant, * * Appeal From the United States v. * District Court for the * Eastern District of Arkansas. City of Little Rock, Arkansas, * * Appellee. *

Submitted: May 16, 1996 Filed: July 23, 1996
Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

HEANEY, Circuit Judge.

Charles G oss filed suit asserting that by conditioning its approval of plaintiff's rezoning request on his dedicatio n of property, the City of Little Rock (Little R ock) violated the Fifth and Fourteenth Amendments to the United States Constitution and Article Two, § 22 of the Arkansa s Constitution. The United States District Court dismissed the complaint. We reverse.

BACKGROUND

In Septem

ber 1971, Charles Goss purchased 3.7 acres located next to
a t wo-lane state highway in a rural, unincorporated area outside Littl e Rock. Goss has operated a convenience store, ga s station, laundromat, and
car wash o n the premises ever since. In 1985, Little Rock annexed a port ion of its surrounding area that included the Goss property. I n accordance with the city code, the

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annexed area was classified by default as an "R-2" district for single

family residences. Under the city ordinances, Goss' business activit y would be limited to "C-3" general commercial dis trict zones; nevertheless, Goss was permitted to continue his operations pursuant to a nonconforming use exception.

Although Goss continues to utilize his property in the sam e commercial capacity in which it has been used for the past twenty years, he as serts that sale of his commercial enterprise and property i s contingen t on rezoning. (Jt. App. 31). In April 1993, Goss petitione d Little Rock to have h is property rezoned as a "C-3" zone. In May, Little Rock's Staff and Planning Commission agreed to recommend to the Little Roc k Board of Directors that the area be rezoned, but only on the condition tha t Goss dedicate a portion of his property to Little Rock for future expansio n of the adjacent highway. The demanded dedicatio n ran the entire length of Goss' property (633.6 8 feet) and 55 feet into the lot. The total acreage of the demanded dedication approximates eight-tenths of an acre, or twenty

two percent of the total property. Goss objected to the condition.

Th e Planning Commission finally submitted its recommendation for a conditional rezoning to the Board of Directors on February 21, 1995 along with a re quest by Goss to waive the dedication condition. The Plannin g Comm ission recommended that the Board deny the requested waiver. O n February 21, 1995, the Board refused to rezone the property without th e dedication. It reasoned that the Little Rock treasury would otherwise hav e to pay condemnation damages for the future road expansion. (Complaint ¶ 8).

On Mar ch 20, 1995, Goss filed suit in the United States Distric t Court for the Eastern District of Arkansas alleg ing that the imposition of the dedication condition violated the Fifth and Fourteenth Amendments to the United States Constitution and Article 2, § 22 of the Arkansa s Constitution. On September 25, 1995, the

### Appellee objects to the inclusion of cert ain items within the 1 

### joint appendix. Appellee's motion to strike those portions i s hereby denied.
-3- district court dismissed the suit for a failure to state a claim. Goss no w appeals. 1

ANALYSIS

We review

the district court's dismissal de novo. Coleman v. Watt , 40 F.3d 255, 258 (8th Cir. 1994). In considerin g a motion to dismiss, the court must construe the complaint liberally and assume all factua l allegat ions to be true. Id. Dismissal should not be granted unless i t appears beyond a reasonable doubt that the plaintiff can prove no set of facts that would entitle relief. Conley v. Gibson , 355 U.S. 41, 45-4 6 (1957).

Since t he seminal case Village of Euclid v. Ambler Realty Co. , 27 2 U.S. 365 (1926), the Supreme Court has often affirmed the propriety of a state's utilization of its police powers to regu late land use. See, e.g. , Agins v. City of Tiburon , 447 U.S. 255 (1980); P enn Central Transp. Co. v. New York City , 438 U.S. 104 (1978). The Court h as specifically upheld the use of zoning laws to effectuate such regulation. See Village of Euclid , 272 U.S. at 387. The Court has cautioned, however, that there ar e constitutional limits on the exercise of this police power: "[A] strong publi c desire to improve the public condition is not enough to warran t achieving the desire by a shorter cut than the constitutional way of payin g for the change." Pennsylvania Coal Co. v. Mason , 260 U.S. 393, 413, 416 (1922).
Rezoning decisions are vested in the discretion of municipal zoning author ities and these legislative decisions are not subject to judicia l scrutiny as to their providence. Burns v. City of Des Peres , 534 F.2d 103 , 108 (8th Cir. 1976) ("Courts are not to assume

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the role of a super z oning board."). Notwithstanding the admonition that
cou rts should not reverse a zoning commission merely because a contrar y result may be permissible, id. , courts must ensu re compliance with minimal constitutional limita tions. To this end, the Supreme Court has held that "[t]he application of a general zoning law to particular property effects a taking if the ordin ance does not substantially advance legitimate state interests or denies an owner economically viable use of his land." Agins , 447 U.S. at 260. We focus on the former: advancement of a legitimate stat e interest.

Li ttle Rock contends that "the relationship between its regulator y action in denying the rezoning request and [Little Rock's] public health and sa fety concerns over regulating traffic that rezoning would likel y entail is direct and substantial." (Appellee's Br. at 18). The Supreme Court has explicitly acknowledged the state interest in containing th e effects of urbanization:

Traditional land-use regulation (short of that whic h totally destroys the economic value of property) does not violate [the principle of the Compensation Clause ] because ther e is a cause-and-effect relationship between the p roperty use restricted by the regulation and th e social evil that the regulation seeks to remedy. Sinc e the owner's use of the property is (or, but for th e regulation would be) the source of the social problem, it cannot be said that he has been singled out unfairly

. Thus, the common zoning regulations req uiring subdividers to obs erve lot-size and set-back restrictions, and t o dedicat e certain areas to public streets, are in accor d wit h our constitutional traditions because the propose d pr operty use would otherwise be the cause of excessiv e congestion.

Pennell v. City of San Jose , 485 U.S. 1, 20 (1988) (Scalia, J. dissenting) ; accord Agins , 447 U.S. at 261 & n.8. Were Littl e Rock's regulatory action
a simple denial of a rezoning request, we would agree. This portrayal , however, oversimplifies and mischaracterizes Little Rock's action.

### -5- The Li ttle Rock action in question was the conditioning of it s approval of the rezoning request on the dedicati on by Goss of a portion of his property. The use of conditions in conjunction with the exercise of police powers has bee n the subject of a great deal of judicial attention. See, e.g. , Nollan v. California Coastal Comm'n , 425 U.S. 825 (1987); Dolan v. City of Tigard , 114 S.Ct. 2309 (1994). This attention derives from the frank acknowledgement that states might use cond itions in combination with the e xercise of their discretionary power to elude the confines of th e Constitution and accomplish what might otherwise be clearly impermissible.

In Nollan v. California Coastal Commission , the Supreme Cour t
cons idered whether the California Coastal Commission could condition a rebuil ding permit on the applicant's grant of a public-access easemen t
across the property's beachfront. 425 U.S. at 834-37. The Court held tha t where a state could refuse an applicant's request pursuant to its police powers, it can also a ttach conditions to its approval so long as there is
a nexus between the attached conditions and the justification for which th e state might have prohibited the applicant's action. Id. at 836. The Cour t reasoned that "the Commission's assumed power to forbid construction of th e house in order to protect the public's view of the beach must surel y inc lude the power to condition construction upon some concession by th e owner, even a concession of property rights, that serves the same end. " Id. In Nollan , the justification for denying a rebuilding permit-

- protection of the ocean view--would not have bee n advanced by the required easement; therefore, the condition was unconstitutional. Id. at 841.

Like Nollan , if Little Rock had simply required the dedication o f Goss' property, rather than conditioning a rezoning application on it s grant, i t would have been a taking. Thus, the question is whether th e condition was in response to a legitimate concern regarding the proposed rezoning or whether Little Rock was using

### Although the property owner carries the burden of provin g 2 

### tha t the imposition of the regulatory action violate s constitutional norms in cases evaluating most generally applicable zo ning regulations, see Keystone Bituminous Coal Ass'n v

. DeBenedictus , 480 U.S. 470 (1987), in cases where a city makes an adjudicative decision to condition petitioner's application on an individual parcel, the burden properly rests on the city. Dolan , 114 S.Ct. at 2320 n.8.
-6- its police powers as leverage to extract the concession of a constitutiona l right--compensation for property taken.

Th e Court further elaborated its permissible condition analysis i n Dolan v. City of Tigard , 114 S. Ct. 2309 (1994). In Dolan , a city plannin g commission granted a permit to develop the appli cant's property subject to the condition that th e applicant dedicate portions of her property toward the im provement of the area drainage system and a pedestrian/bicycl e pathway. 114 S.Ct. at 2313. The required dedications were part of a community development code. Id. In contrast to Nollan , in Dolan the Cour t fo und that a nexus between the legitimate state interest--commercia l development resulting in more runoff and higher traffic concentrations--an d the conditions imposed on the permit. In additi on to the requisite nexus, the Court went on to require that the city demonstrate that the degree of 2 the extractions demanded in the condition bears "rough proportionality" to the proje cted impact of the applicant's request. Id. at 2318-20. Thi s requirement ensures t hat the conditioning of a discretionary benefit does not force "some people alone to bear public burd ens which, in all fairness and justice, should be borne by the public as a whole" in violation of the Just Compensation Clause. Pennell , 485 U.S. at 9 (quoting First English Evangelical Lutheran Church of Glendale v. Count y of Los Angeles , 482 U.S. 304, 318-19 (1987)).
Given that the allegation of facts might entitle relief in this case, dismiss al of this action was inappropriate. The record suggests tha t Little Rock's staff based its condition on a concern

### The f act that the current use of the property is "C-3 " 3 

### undercuts the claim that a different "C-3" business, developed in place of the present enterprise, might add to the traffic burden. Cf. W. J. Jones Ins. Trust v. Fort Smith, Ark. , 731 F. Supp. 912 , 914 (W.D. Ark. 1990) (addition of convenience store to a ga s station would have a de minimis impact on traffic burden).
-7- that a different, heavy traffic-producing busine ss could be erected on the property if rezoned. The sparsity of the record, however, doe s not permit 3

an inquiry by this court into the existence of the required nexus or, if
a nexu s exists, whether the demanded dedication bears some roug h pro portionality to the projected impact of the proposed rezoning

. Therefore, we reverse the district court's dismissal and remand it fo r further proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.