# Ivanovich v. City of Union Missouri

> District Court, E.D. Missouri · September 1, 2023

URL: https://www.frixlaw.com/law-library/cases/10239189

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 1, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10239189

## How later opinions describe it (automated extraction)

- holding there was no property interest in the renewal of a bingo hall license where the city retained discretion, without substantive limitations, to withhold approval of an application for license renewal

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

)
NICHOLAS IVANOVICH, et al.,
)

)
Plaintiffs,
)

)
v. Case No. 4:22-cv-01011-SPM
)

)
CITY OF UNION, MISSOURI et al.,
)

)
Defendants.
)

MEMORANDUM OPINION AND ORDER

The plaintiffs in this case are several individual property owners who live near
a dog breeding and boarding business (“Linny’s Kennel”) owned by Defendant
Linda Linnemeyer. Beginning in 2021, Linnemeyer petitioned the Board of
Aldermen for the City of Union to annex her property into the City and to amend the
City’s zoning code to allow Linnemeyer to operate Linny’s Kennel on her property.
Linnemeyer subsequently applied for a conditional use permit to expand her kennel
operations. Plaintiffs filed a petition protesting Linnemeyer’s application, and the
application was denied after a public hearing. When Linnemeyer reapplied eight
months later, Plaintiffs filed a second petition protesting Linnemeyer’s application
for a conditional use permit. After a nonpublic meeting of the Board, Linnemeyer’s
second application for a conditional use permit was approved over the objections of
Plaintiffs.
Plaintiffs sued Linnemeyer, the City of Union, its Mayor, Robert Schmuke
(the “Mayor”), and individual members of its Board of Aldermen (the “Board

Defendants”).1 Plaintiffs claim Defendants violated their due process rights by
depriving them of notice and an opportunity to contest (i) the Board’s decision to
amend the zoning code to allow Linnemeyer’s kennel to operate near their homes;

(ii) the City’s annexation of Linnemeyer’s property; and (iii) the Board Defendants’
decision to approve Linnemeyer’s application for a conditional use permit (Count I).
The complaint also asserts Plaintiffs are entitled to a declaratory judgment declaring
the City’s annexation and rezoning of Linnemeyer’s property invalid (Counts II-III).

Plaintiffs also seek judicial review of the Board’s decision to grant Linnemeyer a
conditional use permit (Count IV) and judicial enforcement of Missouri’s Sunshine
Act, which requires public hearings under the circumstances at issue in this case

(Count V).
The City, the Mayor, and the Board Defendants (collectively “Movants”) have
moved to dismiss Count I of Plaintiffs’ complaint on grounds that Plaintiffs have
failed to state a claim under 42 U.S.C. § 1983. Movants also seek dismissal of Counts

II-V of Plaintiffs’ Complaint as to the Mayor and the Board Defendants on the
ground that those claims are redundant against the City. See Docs. 13, 14. As part of

1 The Complaint names Amanda Sullivan, Barbara E. Laberer, Dennis Soetebier, Karen Erwin,
Brian Pickard, Robert Marquart, Paul Arand, and Tom Strubberg. See Compl. Doc. 1.
their response in opposition to the motion to dismiss, Plaintiffs filed a Motion for
Leave to Amend by Interlineation to clarify that the Mayor and Board Defendants

are being sued in both their official and individual capacities. See Doc. 23.
Both motions have been fully briefed, and the parties have consented to the
jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C.

§636(c). See Doc. 9. For the reasons set out below, the motion to dismiss will be
granted and the motion to amend by interlineation will be denied, as moot.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of Movants’ motion to dismiss, the Court accepts as true the

following facts taken from Plaintiffs’ complaint and makes all reasonable inferences
in Plaintiffs’ favor:
Plaintiffs are individual property owners who live near Defendant

Linnemeyer’s dog breeding and boarding business (“Linny’s Kennel”). Before July
12, 2021, kennels for boarding or breeding dogs were not permitted in the City’s
non-urban zoning district, either expressly or by conditional use. On July 12, 2021,
Linnemeyer who, at that time was not a resident of the City, requested that the City’s

Board of Alderman amend the Zoning Code to allow kennels in the non-urban
zoning district as a conditional use. The Board approved the request.
On October 11, 2021, Linnemeyer filed a Petition for Voluntary Annexation

into the City pursuant to Mo. Rev. Stat. § 71.012, which permits annexation of
unincorporated areas contiguous and compact to the existing corporate limits of the
City. On November 8, 2021, the Board annexed Linny’s Kennel into the City with a

zoning classification of non-urban.
On November 12, 2021, Linnemeyer filed an application for a conditional use
permit to expand aspects of Linny’s Kennel. Some of the Plaintiffs were notified

that Linnemeyer’s conditional use permit application would be taken up at a hearing
before the City Planning and Zoning Commission on January 24, 2022, and that the
Board of Alderman would meet on February 14, 2022. After its meeting, the
Planning and Zoning Commission recommended approval of Linnemeyer’s

conditional use permit.
Section 405.685(G)(2) of the City’s Zoning Code allows “[s]pecified nearby
property owners” to “file a protest with the Board of Aldermen against the Planning

and Zoning Commission’s approval of an application for a conditional use permit or
amendment thereto.” Section 405.685(E) of the Zoning Code states: “Unless the
Board of Aldermen exercises its power of review or a duly filed protest as herein set
forth is received by the City Clerk, a conditional use permit or an amendment thereto

shall become effective after thirty (30) days of the Board of Aldermen’s receipt of
the Planning and Zoning Commission’s report granting the application.” Section
405.860(B) requires that “If a protest against such change, modification, or repeal

was presented in writing to the City Clerk duly signed and acknowledged by the
owners of thirty percent (30%) or more, either of the area of the land (exclusive of
streets, and alleys), included within such proposed change, or within an area,

determined by lines drawn parallel to and one hundred eighty-five (185) feet distant
from the boundaries of the district proposed to be changed, such amendment shall
not become effective except by the favorable vote of two-thirds(2/3) of all the

members of the Board of Aldermen."
After the Planning and Zoning Commission recommended approval of
Linnemeyer’s conditional use permit, Plaintiffs whose properties abut Linny’s
Kennel filed a Protest Petition with the City. On February 14, 2022, the Board held

a public hearing at which evidence was presented showing the requested conditional
use permit would not preserve and promote the public health, safety, and general
welfare and would “substantially and permanently injure the appropriate use of

neighboring property.” Compl., Doc. 1, at ¶36. Specifically, evidence presented
demonstrated there would likely be issues related to Missouri’s Clean Water Law,
nuisance associated with barking dogs, dangers from increased traffic, and decreased
property values caused by locating a commercial business in a single-family

residential subdivision. Id. At the Board’s hearing on February 14, 2022, the Board
denied Linnemeyer’s application for a conditional use permit.
On July 5, 2022, Linnemeyer submitted a virtually identical conditional use

permit application. Some of the Plaintiffs received notice that the Planning and
Zoning Commission planned to hold a hearing on the application at its meeting on
July 25, 2022. They were also notified that the Board would next meet on August 8,

2022. After its meeting, the Planning and Zoning Commission, once again,
recommended approval of Linnemeyer’s conditional use permit.
After the Planning and Zoning Commission recommended approval of

Linnemeyer’s second conditional use permit application, Plaintiffs whose properties
abut Linny’s Kennel, once again, filed a Protest Petition on July 27, 2022. Plaintiffs
were prepared to attend the August 8th meeting to present evidence similar to what
they presented at the February Board meeting. However, on August 8, 2022, the

Board refused to hold a public hearing and did not discuss Linnemeyer’s application
during the open meeting. Instead, the Board conducted a closed meeting on August
8, 2022, after which it approved Linnemeyer’s second application for a conditional

use permit.
Plaintiffs allege various irregularities and deficiencies in the procedures used
when the foregoing decisions were made regarding Linny’s Kennel. Specifically,
Plaintiffs allege that when the zoning code was amended in July 2021 to allow

kennels in a non-urban district, the Board held its regular meeting, but failed to post
notice of a public hearing on the property in a conspicuous manner despite being
aware that the amendment was specifically intended for Linny’s Kennel. Plaintiffs

further allege that the Board improperly considered Linnemeyer’s subsequently filed
Petition for Voluntary Annexation without notice to Plaintiffs, and improperly
annexed Linny’s Kennel into the City with a zoning classification of non-urban.

Finally, Plaintiffs allege that when the Board approved Linnemeyer’s application for
a conditional use permit to expand her kennel operations in August 2022, it did so
after a closed (non-public) meeting in contravention of the City’s zoning code and

regulations.
Plaintiffs filed the instant action alleging that the irregularities and
deficiencies in the zoning procedures used by the defendants when the decisions
outlined above were made violated their due process rights. They are seeking relief

for those alleged constitutional violations under 42 U.S.C. § 1983. Defendant
Linnemeyer has answered the Complaint. See Doc. 5. Defendant City of Union has
moved to dismiss Count I and has answered the remaining claims. See Docs. 13, 14,

15. The Mayor and Board Defendants have moved to dismiss all claims against
them. In response to the motion to dismiss filed by the Mayor and Board Defendants,
Plaintiffs have filed a motion for leave to amend by interlineation that is also pending
before the Court. See Doc. 23.

DISCUSSION
For a claim to survive a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). When ruling on a Rule 12(b)(6) motion to

dismiss, the Court must accept as true all the factual allegations in the complaint, but
it need not accept legal conclusions. Iqbal, 556 U.S. at 678. The Court must make
“all reasonable inferences in favor of the nonmoving party.” Usenko v. MEMC LLC,

926 F.3d 468, 472 (8th Cir. 2019). Additionally, “Where the allegations show on the
face of the complaint there is some insuperable bar to relief, dismissal under Rule
12(b)(6) is appropriate.” Benton v. Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir.
2008) (citing Parnes v. Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997)).

I. PLAINTIFFS’ CLAIMS UNDER 42 U.S.C. § 1983 (COUNT I)
Count I of Plaintiffs’ complaint is brought against all defendants pursuant to
42 U.S.C. § 1983. In moving to dismiss Count I, Movants argue Plaintiffs’ § 1983

claim is fatally flawed because their complaint fails to identify a constitutionally
protected interest, and because the absence of a constitutionally protected interest is
an insuperable bar to relief under § 1983.
Section 1983 is a remedial statute allowing a person acting under “color of

any statute, ordinance, regulation, custom, or usage, of a State or Territory or the
District of Columbia” to be held liable for the “deprivation of any rights, privileges,
or immunities secured by the Constitution and its laws.” 42 U.S.C. § 1983; Grove

Assisted Living, LLC v. City of Frontenac, Missouri, No. 4:16-CV-1783 HEA, 2018
WL 3093520, at *2 (E.D. Mo. June 22, 2018). The statute is “merely a vehicle for
seeking a federal remedy for violations of federally protected rights.” Grove, 2018

WL 3093520, at *2 (quoting Foster v. Wyrick, 823 F.2d 218, 221 (8th Cir. 1987)).
Although Plaintiffs’ complaint appears to assert violations of due process
under the Fifth and Fourteenth Amendment of the United States Constitution and the

Missouri Constitution,2 their brief opposing the motion to dismiss appears to limit
the alleged due process violations to the Fourteenth Amendment. Plaintiffs’
opposition brief states, “Count I is brought under 42 U.S.C. § 1983 for violations of
Plaintiffs’ Fourteenth Amendment due process rights, and Plaintiffs state both

substantive and procedural due process claims because Defendants’ pattern of
disregard for the law deprived Plaintiffs of the reasonable use and enjoyment of their
properties.” Pls.’ Mem. Opp’n, Doc. 22, p. 5.

2 Movants argue Plaintiffs’ section 1983 claim fails to the extent it is based on alleged violations
of the Fifth Amendment and the Missouri Constitution. As the Movants correctly point out in their
memorandum in support of dismissal, Fifth Amendment due process requirements are not
applicable to non-federal government defendants. Jackson v. Stair, 944 F.3d 704, 709 (8th Cir.
2019) (citing Barnes v. City of Omaha, 574 F.3d 1003, 1006, n.2 (8th Cir. 2009)). Plaintiffs do not
respond to this argument and appear to have abandoned their Fifth Amendment due process claim.
Regarding alleged violations of the Missouri Constitution, the Court agrees with Movants that
§ 1983 provides a remedy only for violation of rights secured by federal statutes or the United
States Constitution. See Gunderson v. Schlueter, 904 F.2d 407, 409 (8th Cir. 1990). See also
Moody v. Hicks, 956 S.W.2d 398, 402 (Mo. Ct. App. 1997) (rejecting a plaintiff’s argument that a
provision of the Missouri Constitution should be considered “self-executing,” such that she could
assert a claim for its violation; reasoning that claims for violations of the United States Constitution
are cognizable only because Congress enacted legislation authorizing such suits (Section 1983)
and that “[t]he Missouri General Assembly has not enacted similar legislation”). For these reasons,
the Court finds the only viable due process claim in this case is Plaintiffs’ claim for due process
violations under the Fourteenth Amendment.
The Fourteenth Amendment forbids a state entity from depriving “any person
of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV,

§ 1. The Supreme Court has recognized there are two components of due process
under the Fourteenth Amendment—procedural due process and substantive due
process. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 840 (1998);

Albright v. Oliver, 510 U.S. 266, 272 (1994). Procedural due process safeguards
against deprivations of “life, liberty, or property without sufficient process.” In re
Kemp, 894 F.3d 900, 908 (8th Cir. 2018). To establish a claim for violation of
procedural due process, Plaintiffs must show: (1) that they had a life, liberty, or

property interest protected by the Due Process Clause; (2) that they were deprived
of this protected interest; and (3) that the state did not afford them adequate
procedural rights prior to depriving them of the property interest. Stevenson v.

Blytheville Sch. Dist. #5, 800 F.3d 955, 976 (8th Cir. 2015).
Substantive due process wards off deprivations resulting from government
intrusion into rights through irrational government action. See Pietsch v. Ward Cnty.,
446 F. Supp. 3d 513, 534 (D.N.D. 2020), aff'd, 991 F.3d 907 (8th Cir. 2021). To

establish a substantive due process claim, Plaintiffs must show (1) they had a
property interest to which the Fourteenth Amendment’s due process protection
applies, and (2) they were deprived of that right or interest as a result of “truly
irrational governmental actions.” See Chesterfield Dev. Corp. v. City of Chesterfield,
963 F.2d 1102, 1104 (8th Cir. 1992); Bituminous Mat’ls, 126 F.3d at 107.

Although they serve different purposes, both procedural and substantive due
process claims require, at the threshold, the existence of a constitutionally protected
property interest to which due process rights can attach. See Dover Elevator Co. v.

Arkansas State Univ., 64 F.3d 442, 445-46 (8th Cir. 1995) (“Analysis of either a
procedural or substantive due process claim must begin with an examination of the
interest allegedly violated.”). As such, the Eighth Circuit has held that “[i]n
analyzing a claim that the deprivation of property violates either procedural or

substantive due process rights, a court must first consider whether the claimant has
a protected property interest to which the Fourteenth Amendment’s due process
protection applies. Ellis v. City of Yankton, 69 F.3d 915, 917 (8th Cir. 1995).

A. Plaintiffs’ Substantive and Procedural Due Process Claims Fail Because
Plaintiffs’ Complaint Fails to Identify a Constitutionally Protected
Property Interest

Paragraph 50 of Plaintiffs’ complaint contains the sole description of their
alleged constitutionally protected property interest. It asserts: “Plaintiffs have a
legitimate claim of entitlement to constitutionally protected property interests
established by the aforesaid statutes and ordinances.” Compl., Doc. 1, ¶ 50. The
“statutes and ordinances” that allegedly give rise to Plaintiffs’ constitutionally
protected property interests consist of:
• City Zoning Code § 405.045 (requiring that “all territory which
may be hereafter annexed to the City shall be classified in the
‘NU’ Non-Urban unless the annexation ordinance specifies
otherwise”). Id. at ¶ 19;

• Mo. Rev. Stat. § 71.012 (allowing the governing body of any city
to “annex unincorporated areas which are contiguous and
compact to the existing corporate limits of the city”). Id. at ¶ 24;

• City Zoning Code, § 405.720 (requiring “[a]ny expansion of
such conditional use involving the enlargement of the buildings,
structures, and land area devoted to such use shall be subject to
the review and approval procedures described in this Article”).
Id. at ¶ 28;

• City Zoning Code, § 405.685(G)(2) (providing that “[s]pecified
nearby property owners may file a protest with the Board of
Aldermen against the Planning and Zoning Commission’s
approval of an application for a conditional use permit or an
amendment thereto”). Id. at ¶ 32;

• City Zoning Code, § 405.860(B) (providing that “[i]f a protest
against such change, modification, or repeal was presented in
writing to the City Clerk duly signed and acknowledged by the
owners of thirty percent (30%) or more, [of specified
neighboring property owners], such amendment shall not
become effective except by the favorable vote of two-thirds (2/3)
of all the members of the Board of Aldermen”). Id. at ¶ 33;

• City Zoning Code, § 405.685(E) (providing that “[u]nless the
Board of Aldermen exercises its power of review or a duly filed
protest . . . is received by the City Clerk, a conditional use permit
or an amendment thereto shall become effective after thirty (30)
days of the Board of Aldermen’s receipt of the Planning and
Zoning Commission’s report granting the application.”). Id. at ¶
34;

• Mo. Rev. Stat. § 71.010, et seq. (governing annexation
procedure). Id. at ¶48;
• Mo. Rev. Stat. § 89.010, et seq. (Missouri state law procedure for
changes in zoning regulations). Id.; and

• Mo. Rev. Stat. § 610.010, et seq. (Missouri Sunshine Law), Id.

In their memorandum opposing the motion to dismiss, Plaintiffs do not
attempt to explain how the zoning laws referenced in the complaint “establish” any
“legitimate claim of entitlement to constitutionally protected property interests” as
alleged. Drawing all inferences from these and other allegations in the complaint in
favor of the Plaintiffs, the complaint appears to allege these zoning laws gave
Plaintiffs, as owners of properties neighboring Linnemeyer’s dog kennel, certain
rights or entitlements including:
(i) the right to file a protest with the Board of Aldermen against the
Planning and Zoning Commission’s approval of an application
for a conditional use permit or an amendment thereto;

(ii) a requirement that any change, modification, or repeal be
approved by a supermajority vote of two-thirds (2/3) of all the
members of the Board of Aldermen if a protest against such
change, modification, or repeal was presented in writing to the
City Clerk duly signed and acknowledged by the owners of thirty
percent (30%) or more, of specified neighboring property
owners;

(iii) notice and an opportunity to be heard at a public hearing in
relation to any regulation, restriction, or boundaries determined,
established and amended by the legislative body of the City; and

(iv) at least fifteen days’ notice of the time and place of any such
public hearing.
In determining whether the foregoing entitlements arising from the zoning
laws rise to the level of a constitutionally protected property interest, this Court must

determine whether the zoning laws cited by Plaintiffs (i) explicitly create a property
right, (ii) establish statutory or regulatory measures that impose substantive
limitations on the exercise of official discretion, or (iii) create a property right

through “understandings between the state and the other party.” Movers Warehouse,
Inc. v. City of Little Canada, 71 F.3d 716, 719 (8th Cir. 1995) (quoting Craft v. Wipf,
836 F.2d 412, 416-17 (8th Cir. 1987)). See also Jennings v. Lombardi, 70 F.3d 994,
995 (8th Cir. 1995) (holding a protected property interest is not created where a

statute or policy is only procedural or where it grants to the decisionmaker
discretionary authority in implementing it); Kuhl v. Halquist Farms, 02-1156
(MJD/RLE), 2003 WL 21517361 at *4 (D. Minn. June 26, 2003) (quoting Movers

Warehouse, Inc., 71 F.3d at 719).
1. The zoning laws do not explicitly create a property right under
Missouri law.

First, the zoning laws cited in Plaintiffs’ complaint do not create any sort of
benefit to Plaintiffs that can be construed to be a property interest or property right
recognized under Missouri law. Mo. Rev. Stat. § 71.012, for example, sets
requirements for “the governing body of any city, town or village [to] annex
unincorporated areas which are contiguous and compact to the existing corporate
limits of the city, town or village.” The City’s Zoning Code and Mo. Rev. Stat.
§ 89.050 govern “the manner in which such regulations and restrictions and the
boundaries of [zoning] districts shall be determined, established, and enforced, and

from time to time amended, supplemented, or changed.” Mo. Rev. Stat. § 610.010
regulates the way meetings of a public governmental body at which any public
business is discussed, decided, or public policy formulated must be conducted. The

zoning laws cited by Plaintiffs collectively operate to set standards by which
lawmakers regulate land use and/or interact with the public while carrying out their
duties, including requiring that interested parties be given notice and an opportunity
to be heard at a public hearing.

In Moore v City of Parkland, 156 S.W.3d 384 (Mo. Ct. App. 2005), the
Missouri Court of Appeals examined rights afforded under Mo. Rev. Stat. § 89.050,
one of the statutes at issue in this case. In Moore, neighboring property owners sued

the city and developers for injunctive relief to prevent the construction of a shopping
center. Id. at 386. Plaintiffs argued the city failed to comply with the notice
requirements of § 89.050 and sought to invalidate the rezoning ordinance approved
by the city. Id. at 388-89. In resolving the claim under § 89.050, the court in Moore

acknowledged that the property owners were conferred certain rights under the
zoning statute to challenge the zoning ordinance, but ultimately held that the city
satisfied the notice and public hearing requirements of § 89.050. Id. at 390.
The neighboring property owners in Moore also brought claims under the
Fourteenth Amendment. Id. at 391. The Moore plaintiffs argued the city’s failure to

provide adequate notice as required under the zoning statute violated their
procedural due process rights. Id. The court found that the neighboring property
owners failed to demonstrate a constitutionally protected property interest. Id. The

court held that while a neighboring property owner may be entitled to notice and
hearing under § 89.050, such notice and hearing are “not constitutionally required.”
Id. (emphasis added). The court concluded there is “little cogent support” for the
“proposition that a neighbor has a constitutional right to have restrictions imposed

on others.” Id.
2. The zoning laws do not impose substantive limitations on the
exercise of official discretion.

In Jennings v. Lombardi, the Eighth Circuit held:
This Circuit uses a two-part test to determine whether a state statute or
policy is sufficient to create a constitutionally protected property
interest. A statute, regulation, or official policy pronouncement will
give rise to a protected property interest only where (1) it contains
particularized substantive standards or criteria that guide the
decisionmakers, and (2) it uses mandatory language requiring the
decisionmakers to act in a certain way, thus limiting the official’s
discretion. Where the statute or policy is only procedural, or where it
grants to the decisionmaker discretionary authority in implementing it,
a protected property interest is not created.

70 F.3d at 995-96 (internal citation omitted).
The zoning laws cited in Plaintiffs’ complaint do not meet the test articulated
in Jennings. While the zoning laws cited impose some limitations on decisionmakers

such as, for example, preventing automatic approval of a conditional use permit
when a protest petition is timely filed, they are primarily procedural in nature. A
review of the referenced laws makes clear that decisionmakers retain unfettered

discretion in deciding whether to grant or deny applications for annexation,
rezoning, or conditional use permits. Because decisionmakers retain this discretion
under the zoning laws, under Jennings and other controlling Eighth Circuit case law,
the zoning and related laws cited in Plaintiffs’ complaint do not create a

constitutionally protected property interest in the City’s process for restricting or
allowing the way neighboring property is used. See Movers Warehouse, Inc., 71 F.3d
at 718-19 (holding there was no property interest in the renewal of a bingo hall

license where the city retained discretion, without substantive limitations, to
withhold approval of an application for license renewal); Bituminous Materials, 126
F.3d at 1070 (where ordinance stated county “may” grant a temporary equipment
placement and operation use permit (TEPOP), county had discretion to deny or

restrict a TEPOP; therefore, road paving contractor had no constitutionally protected
property interest in the permitting process).
3. Plaintiffs do not assert an “understanding” or “policy”
between the City and Plaintiffs.

Plaintiffs have not asserted, and there is nothing in their complaint from which
this Court could infer, that there was ever any “understanding” or “policy” between
the City and the Plaintiffs that would lead to the creation of a constitutionally
protected property interest.
4. River Park and other cases cited by Plaintiffs are
distinguishable and do not apply.

In opposing the motion to dismiss, Plaintiffs argue for the first time that their
right to use and enjoy their own properties free from nuisance is the constitutionally
protected property interest on which their § 1983 claim hinges. See Pls.’ Mem.
Opp’n , Doc. 22, p. 6. Plaintiffs cite the Seventh Circuit’s opinion in River Park, Inc.
v. City of Highland Park, 23 F.3d 164, 165-66 (7th Cir. 1994), and similar cases in

support. This argument fails for two independent reasons.
First, as Movants correctly point out in their Reply, Plaintiffs’ complaint
makes clear that the “constitutionally protected property interest” on which their
§ 1983 claim rests are those arising from the zoning laws cited in the complaint. “It

is well established that a plaintiff cannot add factual allegations to the complaint by
raising them in his memorandum in opposition to a motion to dismiss.” Godfrey v.
Clayco, Inc., 4:20CV912 RLW, 2021 WL 2915068 *3 n.3 (E.D. Mo. July 12, 2021)

(citing Gallagher v. City of Clayton, 699 F.3d 1013, 1022 (8th Cir. 2012) (“It is a
basic principle that the complaint may not be amended by the briefs in opposition to
a motion to dismiss.”)). Because the assertion in Plaintiffs’ opposition brief cannot

be reasonably inferred from the facts in the complaint, those assertions are not
properly before the Court.
Second, Plaintiffs cannot avail themselves of River Park and its progeny.

Unlike the facts of this case, River Park and other cases cited by Plaintiffs involved
plaintiffs who owned (or leased) the property that was the subject of the challenged
government regulation. See River Park, 23 F.3d at 165 (plaintiff property owner
seeking damages under § 1983 for delay and denial and zoning applications);

Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013) (plaintiff cottage
owners protesting town’s declaration of cottages as a nuisance); C.L.U.B. v. City of
Chicago, 157 F. Supp. 2d 903, 913 (N.D. Ill. 2001) (church association members

challenging zoning restrictions on use of church property); Dyson v. Calumet City,
306 F. Supp. 3d 1028, 1041 (N.D. Ill. 2018) (lessee alleging she was unable to use
leaded property for desired business purpose). Because of the factual differences
between this case and River Park, the River Park line of cases are inapposite.

In this case, as discussed above, Plaintiffs have not asserted they were
deprived of the right to use their own property as they see fit. Instead, they appear to
assert that, to prevent a possible nuisance, they have a constitutionally protected

property interest arising from zoning laws to either restrict their neighbor’s use of
her property as a dog kennel or to maintain prior restrictions on the use of that
property. Plaintiffs have cited no cases to support that proposition. Indeed, under

Missouri law, there is “little cogent support” for the “proposition that a neighbor has
a constitutional right to have restrictions imposed on others.” Moore, 156 S.W.3d at
391.

B. Plaintiffs’ Substantive Due Process Claim Fails for the Additional Reason
That Plaintiffs Have Not Alleged “Truly Irrational” Conduct

Even assuming, arguendo, that Plaintiffs had alleged a constitutionally
protected property interest, they have failed to state a claim of substantive due
process because they have not plausibly alleged the second element of a substantive
due process claim—“truly irrational conduct.” See Bituminous Materials, 126 F.3d
at 1070. The Eighth Circuit has taken a restrictive view of when land use planning
decisions by local government agencies violate an aggrieved party’s substantive due
process rights,” id., and has cautioned that “[a] federal court, after all, should not . .

. sit as a zoning board of appeals.” Chesterfield Dev. Corp., 963 F.2d at 1104
(quoting Creative Env’ts., Inc. v. Estabrook, 680 F.2d 822, 833 (1st Cir. 1982))
(internal citations omitted).
The Eighth Circuit has reasoned that a restrictive approach in land use cases

is necessary because “[e]very appeal . . . from an adverse ruling by a
local . . . planning board necessarily involves some claim that the board exceeded,
abused, or ‘distorted’ its legal authority in some manner, often for some allegedly
perverse (from the [aggrieved person’s] point of view) reason.” Id. (quoting Creative
Env’ts., Inc., 680 F.2d at 833) (emphasis in original). Indeed, simply putting

constitutional labels such as “due process” on what are essentially state law claims
is not enough to raise a substantial federal question under § 1983. Id. “As has often
been stated, the violation of a state statute does not automatically give rise to a

violation of rights secured by the Constitution.” Id. (internal quotation marks
omitted).
To sustain a claim for substantive due process, a “plaintiff must prove that the
government action in question is ‘something more than . . . arbitrary, capricious, or

in violation of state law.’” Bituminous Materials, 126 F.3d at 1070 (citing
Chesterfield Dev. Corp., 963 F.2d at 1104)). “[E]ven allegations of bad faith
enforcement of an invalid zoning ordinance do not, without more, state a substantive

due process claim.” Id. Instead, “substantive due-process claims should be limited
to ‘truly irrational’ governmental actions” such as “attempting to apply a zoning
ordinance only to persons whose names begin with a letter in the first half of the
alphabet.” Chesterfield Dev. Corp., 963 F.2d at 1104.

Viewing the complaint in the light most favorable to Plaintiffs, the allegations
do not amount to more than a typical appeal by a disappointed landowner from an
adverse ruling by a local planning board. In their memorandum opposing the motion

to dismiss, Plaintiffs characterize the Board’s decision to deny Linnemeyer’s first
application for a conditional use permit—a position with which Plaintiffs agreed—
as “[t]he standard for rational decision making.” Pls.’ Mem. Opp’n., Doc. 22, at p.

9. However, when Linnemeyer reapplied several months later and the Board granted
the application over Plaintiffs’ formal written protest, the Board’s actions, according
to Plaintiff, were “truly irrational.” Id. The Court acknowledges there may be merit

to Plaintiffs’ argument that the Board’s reversal seems irrational because nothing
had changed between Linnemeyer’s first and second applications. However, even if
this Court infers from Plaintiffs’ complaint the Board acted in bad faith in reversing
its prior decision, that would not be sufficient to state a substantive due process

claim. See Bituminous Materials, 126 F.3d at 1070.
The facts alleged here fall woefully short of plausibly asserting that “the
government action in question is something more than arbitrary, capricious, or in

violation of state law” or rises to the level of “truly irrational” conduct. See id. (citing
Chesterfield Dev. Corp., 963 F.2d at 1104). Dismissal is appropriate because even
if plaintiffs had a constitutionally protected property interest, the complaint fails to
meet the exacting pleading standards for a substantive due process claim.

In sum, Count I fails to state a claim as a matter of law because the complaint
does not (and cannot) plausibly allege that Plaintiffs had a constitutionally protected
property interest. As such, Plaintiffs’ procedural and substantive due process claims

fail as a matter of law. Plaintiffs’ substantive due process claim fails for the
additional reason that the complaint fails to allege truly irrational conduct.
C. Amendment by Interlineation Would be Futile

As part of their response in opposition to the motion to dismiss, Plaintiffs filed
a Motion for Leave to Amend by Interlineation to clarify that the Mayor and Board
Defendants are being sued in both their official and individual capacities. Doc. 23.

Movants oppose this motion arguing such an amendment would be futile. Doc. 29.
This Court agrees. For the reasons set out above, dismissal of Plaintiffs’ current
complaint is appropriate because the complaint fails to plausibly allege a
constitutionally protected interest. Nothing about the proposed amendment would

impact that conclusion. Regardless of whether the Mayor and Board Defendants are
sued in their individual capacities, Plaintiffs’ § 1983 claim fails because it is not
predicated on a constitutionally protected property interest. For those reasons, as to

Count I of the complaint, the motion for leave to amend by interlineation will be
denied as futile.
II. PLAINTIFFS’ STATE LAW CLAIMS (COUNTS II–V)
Movants seek dismissal of Counts II through V of Plaintiffs’ Complaint as to

the Mayor and the Board Defendants on the ground that those claims are brought
against those defendants in their official capacities and thus are redundant against
the City. See Docs. 13, 14. As part of their response in opposition to the motion to

dismiss, Plaintiffs filed a Motion for Leave to Amend by Interlineation to clarify that
the Mayor and Board Defendants are being sued in both their official and individual
capacities. Pls.’ Mot. for Leav to Amend, Doc. 23. However, Counts II through V

are claims arising under Missouri law. Because the Court is dismissing the sole
federal claim in this lawsuit, the Court will consider whether to exercise
supplemental jurisdiction over the remaining state law claims.

A district court may decline to exercise supplemental jurisdiction over state
claims if “the district court has dismissed all claims over which it has original
jurisdiction.” 28 U.S.C. § 1367(c)(3). “A district court’s decision whether to exercise
[supplemental] jurisdiction after dismissing every claim over which it had original

jurisdiction is purely discretionary.” Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 359
(8th Cir. 2011) (quoting Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639
(2009)). However, the Eighth Circuit has stated that “[i]n the usual case in which all

federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine—judicial economy, convenience, fairness,
and comity—will point toward declining to exercise jurisdiction over the remaining
state-law claims.” Barstad v. Murray Cty., 420 F.3d 880, 888 (8th Cir. 2005)

(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). This
reflects the policy that the federal courts should “exercise judicial restraint and avoid
state law issues whenever possible” and should “provide great deference and comity

to state court forums to decide issues involving state law questions.” Condor Corp.
v. City of St. Paul, 912 F.2d 215, 220 (8th Cir. 1990). See also Gregoire v. Class,
236 F.3d 413, 419-20 (8th Cir. 2000) (“When state and federal claims are joined and

all federal claims are dismissed on a motion for summary judgment, the state claims
are ordinarily dismissed without prejudice to avoid needless decisions of state
law . . . as a matter of comity.”) (quotation marks omitted).

Here, after consideration of the relevant factors, the Court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims, which involve numerous
questions of state law that would be better determined by the Missouri state courts.
Accordingly, Plaintiffs’ state law claims (Counts II through V) will be dismissed

without prejudice. To the extent that the Movants’ motion to dismiss Counts II
through V are directed toward the state law claims, it is denied as moot. To the extent
Plaintiffs’ Motion for Leave to Amend by Interlineation is directed to Counts II to

through V, it will also be denied as moot.
CONCLUSION
For the reasons stated above,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc 13)

is GRANTED as to Plaintiff’s claims under 42 U.S.C. § 1983 (Count I) and
DENIED as moot as to Plaintiff’s claims under state law (Counts II-V).
IT IS FURTHER ORDERED that Plaintiffs’ claims under 42 U.S.C. § 1983

(Count I) are DISMISSED, with prejudice.
IT IS FURTHER ORDERED that Plaintiff's claims under state law (Counts
II-V) are DISMISSED, without prejudice.
IT IS FURTHER ORDERED that Plaintiff's motion for leave to amend by
interlineation (Doc. 23) is DENIED as futile, as to Count I and DENIED as moot,
as to Counts I-V.
Mh, □□
SHIRLEY PADMORE MENSAH st”
UNITED STATES MAGISTRATE JUDGE
Dated this lst day of September, 2023.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10239189. Public record. Not legal advice.