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 Goss filed suit asserting that by conditioning its approval

of plaintiff's rezoning request on his dedication of property, the City of

Little Rock (Little Rock) violated the Fifth and Fourteenth Amendments to

the United States Constitution and Article Two, § 22 of the Arkansas

Constitution. The United States District Court dismissed the complaint.

We reverse.

BACKGROUND

In September 1971, Charles Goss purchased 3.7 acres located next to

a two-lane state highway in a rural, unincorporated area outside Little

Rock. Goss has operated a convenience store, gas station, laundromat, and

car wash on the premises ever since. In 1985, Little Rock annexed a

portion of its surrounding area that included the Goss property. In

accordance with the city code, the
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annexed area was classified by default as an "R-2" district for singlefamily residences. Under the city ordinances, Goss' business activity

would be limited to "C-3" general commercial district zones; nevertheless,

Goss was permitted to continue his operations pursuant to a nonconforming

use exception.

Although Goss continues to utilize his property in the same

commercial capacity in which it has been used for the past twenty years,

he asserts that sale of his commercial enterprise and property is

contingent on rezoning. (Jt. App. 31). In April 1993, Goss petitioned

Little Rock to have his property rezoned as a "C-3" zone. In May, Little

Rock's Staff and Planning Commission agreed to recommend to the Little Rock

Board of Directors that the area be rezoned, but only on the condition that

Goss dedicate a portion of his property to Little Rock for future expansion

of the adjacent highway. The demanded dedication ran the entire length of

Goss' property (633.68 feet) and 55 feet into the lot. The total acreage

of the demanded dedication approximates eight-tenths of an acre, or twentytwo percent of the total property. Goss objected to the condition.

The Planning Commission finally submitted its recommendation for a

conditional rezoning to the Board of Directors on February 21, 1995 along

with a request by Goss to waive the dedication condition. The Planning

Commission recommended that the Board deny the requested waiver. On

February 21, 1995, the Board refused to rezone the property without the

dedication. It reasoned that the Little Rock treasury would otherwise have

to pay condemnation damages for the future road expansion. (Complaint ¶

8).

On March 20, 1995, Goss filed suit in the United States District

Court for the Eastern District of Arkansas alleging that the imposition of

the dedication condition violated the Fifth and Fourteenth Amendments to

the United States Constitution and Article 2, § 22 of the Arkansas

Constitution. On September 25, 1995, the
 Appellee objects to the inclusion of certain items within the 1

joint appendix. Appellee's motion to strike those portions is

hereby denied.

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district court dismissed the suit for a failure to state a claim. Goss now

appeals.1

ANALYSIS

We review the district court's dismissal de novo. Coleman v. Watt,

40 F.3d 255, 258 (8th Cir. 1994). In considering a motion to dismiss, the

court must construe the complaint liberally and assume all factual

allegations to be true. Id. Dismissal should not be granted unless it

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, 45-46

(1957).

Since the seminal case Village of Euclid v. Ambler Realty Co., 272

U.S. 365 (1926), the Supreme Court has often affirmed the propriety of a

state's utilization of its police powers to regulate land use. See, e.g.,

Agins v. City of Tiburon, 447 U.S. 255 (1980); Penn Central Transp. Co. v.

New York City, 438 U.S. 104 (1978). The Court has 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 are

constitutional limits on the exercise of this police power: "[A] strong

public desire to improve the public condition is not enough to warrant

achieving the desire by a shorter cut than the constitutional way of paying

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

authorities and these legislative decisions are not subject to judicial

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 zoning board."). Notwithstanding the admonition that

courts should not reverse a zoning commission merely because a contrary

result may be permissible, id., courts must ensure compliance with minimal

constitutional limitations. 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 ordinance 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 state

interest.

Little Rock contends that "the relationship between its regulatory

action in denying the rezoning request and [Little Rock's] public health

and safety concerns over regulating traffic that rezoning would likely

entail is direct and substantial." (Appellee's Br. at 18). The Supreme

Court has explicitly acknowledged the state interest in containing the

effects of urbanization:

Traditional land-use regulation (short of that which

totally destroys the economic value of property) does not

violate [the principle of the Compensation Clause]

because there is a cause-and-effect relationship between

the property use restricted by the regulation and the

social evil that the regulation seeks to remedy. Since

the owner's use of the property is (or, but for the

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 requiring subdividers

to observe lot-size and set-back restrictions, and to

dedicate certain areas to public streets, are in accord

with our constitutional traditions because the proposed

property use would otherwise be the cause of excessive

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 Little Rock's regulatory action

a simple denial of a rezoning request, we would agree. This portrayal,

however, oversimplifies and mischaracterizes Little Rock's action.
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The Little Rock action in question was the conditioning of its

approval of the rezoning request on the dedication by Goss of a portion of

his property. The use of conditions in conjunction with the exercise of

police powers has been 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 conditions in combination with

the exercise of their discretionary power to elude the confines of the

Constitution and accomplish what might otherwise be clearly impermissible.

In Nollan v. California Coastal Commission, the Supreme Court

considered whether the California Coastal Commission could condition a

rebuilding permit on the applicant's grant of a public-access easement

across the property's beachfront. 425 U.S. at 834-37. The Court held that

where a state could refuse an applicant's request pursuant to its police

powers, it can also attach conditions to its approval so long as there is

a nexus between the attached conditions and the justification for which the

state might have prohibited the applicant's action. Id. at 836. The Court

reasoned that "the Commission's assumed power to forbid construction of the

house in order to protect the public's view of the beach must surely

include the power to condition construction upon some concession by the

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 been advanced by the required

easement; therefore, the condition was unconstitutional. Id. at 841.

Like Nollan, if Little Rock had simply required the dedication of

Goss' property, rather than conditioning a rezoning application on its

grant, it would have been a taking. Thus, the question is whether the

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 proving

2

that the imposition of the regulatory action violates

constitutional norms in cases evaluating most generally applicable

zoning 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.

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its police powers as leverage to extract the concession of a constitutional

right--compensation for property taken.

The Court further elaborated its permissible condition analysis in

Dolan v. City of Tigard, 114 S. Ct. 2309 (1994). In Dolan, a city planning

commission granted a permit to develop the applicant's property subject to

the condition that the applicant dedicate portions of her property toward

the improvement of the area drainage system and a pedestrian/bicycle

pathway. 114 S.Ct. at 2313. The required dedications were part of a

community development code. Id. In contrast to Nollan, in Dolan the Court

found that a nexus between the legitimate state interest--commercial

development resulting in more runoff and higher traffic concentrations--and

the conditions imposed on the permit. In addition 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 projected impact of the applicant's request. Id. at 2318-20. This

requirement ensures that the conditioning of a discretionary benefit does

not force "some people alone to bear public burdens 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. County of Los Angeles, 482 U.S.

304, 318-19 (1987)).

Given that the allegation of facts might entitle relief in this case,

dismissal of this action was inappropriate. The record suggests that

Little Rock's staff based its condition on a concern
 The fact 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 gas

station would have a de minimis impact on traffic burden). 

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that a different, heavy traffic-producing business could be erected on the

property if rezoned. The sparsity of the record, however, does not permit 3

an inquiry by this court into the existence of the required nexus or, if

a nexus exists, whether the demanded dedication bears some rough

proportionality to the projected impact of the proposed rezoning.

Therefore, we reverse the district court's dismissal and remand it for

further proceedings consistent with this opinion.

A true copy.

Attest:

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