Northland Management & Construction, LLC v. City of Parkville

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

NORTHLAND MANAGEMENT & )

CONSTRUCTION, LLC, )

)

Plaintiff, )

) Case No. 4:24-CV-06005-BCW

v. )

)

CITY OF PARKVILLE, )

)

Defendant. )

ORDER

Before the Court is Defendant’s motion for summary judgment. (Doc. #96). The Court,

being duly advised of the premises, grants in part and denies in part said motion.

BACKGROUND

On January 12, 2024, Plaintiff Northland Management & Construction, LLC (“Plaintiff”)

filed a complaint against Defendants City of Parkville; Alexa Burton, City of Parkville

Administrator; Stephen Lachkey, City of Parkville Community Development Director; and Ed

Gault, City of Parkville Building Official. (Doc. #1). On March 8, 2024, the Court granted

Defendant’s unopposed motion to dismiss the official capacity claims against Alexa Burton,

Stephen Lachkey, and Ed Gault. (Doc. #14). Therefore, the City of Parkville (“Defendant”) is the

only remaining defendant in this action.

Plaintiff asserts the following five counts in its complaint: Count I – Regulatory Taking;

Count II – Procedural Due Process Under 42 U.S.C. §§ 1983 and 1988; Count III – Equal

Protection; Count IV – Inverse Condemnation (in the Alternative to Count I); and Count V –

Mandamus and Declaratory Judgment. (Doc. #1). Plaintiff asks the Court to order Defendant to

issue a Final Certificate of Occupancy, enjoin Defendant from asserting any further violations of

any city ordinance declaring Lot 9 to be in non-conformance, award compensatory and punitive

damages, and award attorney fees and expenses.

On October 29, 2024, Defendant filed the instant motion for summary judgment asking the

Court to dismiss Plaintiff’s complaint and enter judgment in its favor. (Doc. #96). The matter is

now fully briefed and ripe for disposition.

UNCONTROVERTED FACTS

This case stems from the denial of a Certificate of Occupancy (“CO”) for a property owned

by Plaintiff. The property at issue is located at 9871 Promenade Drive in Parkville, Missouri, and

is referred to as Lot 9. (Doc. #109 at 1–2). Lot 9 is portion of the Sixth Plat of the Cider Mill Ridge

subdivision. (Docs. #1-3, #97 at 6, #110 at 3–4). On November 2, 2015, the final plat1 for Lot 9

was sealed by Defendant. (Doc. #104 at 5–6). A property that is platted is still subject to change.

(Doc. #109 at 10–11). Plaintiff has built other homes in the City of Parkville that complied with

all municipal codes and has received Final COs for those properties. Id. at 15.

Plaintiff began construction on Lot 9 in 2020. (Doc. #104 at 6). Plaintiff graded2 Lot 9 out

to the property line. (Doc. #109 at 3–4). On December 19, 2022, Defendant issued a Temporary

CO for Lot 9, identifying a “Section 520” issue as requiring additional work. (Doc. #1-18). On

January 4, 2023, Plaintiff requested that Defendant issue a Final CO. (Doc. #1-19). Defendant

denied Plaintiff a Final CO for Lot 9 for reasons related to the grading of a swale3 and the armoring

in a ditch—specifically, the laying of riprap (a type of gravel or stones). (Doc. #109 at 9). The only

deficiency identified in the final inspection was that Lot 9 did not comply with Chapter 520 of the

Parkville Municipal Code, which regulates grading. (Doc. #104 at 10). Defendant requested

1 A plat is a graphical representation of an area of land, drawn to scale.

2 Grading is the process of reshaping the land.

3 A swale is a long depression in land designed to redirect the flow of water.

Plaintiff pull, or apply for, a 520-grading permit, a permit issued pursuant to Chapter 520 of the

Parkville Municipal Code. (Doc. #109 at 8). Plaintiff did not pull a 520-grading permit. Id.

On February 4, 2023, Plaintiff filed a writ of mandamus against Defendant in the Circuit

Court for Platte County, Missouri, in case number 23AE-CC00039, seeking to have the circuit

court compel Defendant to issue a Final CO for Lot 9. (Doc. #104 at 16–17). Plaintiff sought, in

that suit, to have the circuit court interpret Chapter 520 of the Parkville Municipal Code. Id. On

October 3, 2023, the mandamus action was dismissed. Id.

On November 16, 2023, Plaintiff filed an Application for Appeal of Administrative

Decision with the Board of Zoning Adjustment (“BZA”), which the BZA received on November

17, 2023. (Docs. #109 at 12, #1-24). On November 28, 2023, a City of Parkville official notified

Plaintiff that its application was filed out of time, the BZA would not hear the request, and the

application fee would be refunded. (Doc. #1-25).

LEGAL STANDARD

A moving party is entitled to summary judgment “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(c). A party who moves for summary judgment bears the burden to

establish that there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 256 (1986). When considering a motion for summary judgment, the court evaluates the

evidence in the light most favorable to the nonmoving party, and the nonmoving party is entitled

to “the benefit of all reasonable inferences.” Mirax Chem. Prods. Corp. v. First Interstate

Commercial Corp., 950 F.2d 566, 569 (8th Cir. 1991); White v. McKinley, 519 F.3d 806, 813 (8th

Cir. 2008).

ANALYSIS

Defendant raises the following arguments in support of its motion for summary judgment:

(1) Mo. Rev. Stat. § 89.110 bars Plaintiff’s claims; (2) Plaintiff has no cognizable takings claim

because it had no vested right in the issuance of a CO, Plaintiff was not deprived of all economic

benefit of the property, and its inverse condemnation claim is barred by state and federal law; (3)

Plaintiff’s Due Process claim fails because it had no protectable property interest in a CO; (4)

Plaintiff’s Equal Protection claim fails because Defendant treated Plaintiff the same as all other

developers and had a rational basis for withholding the CO; and (5) claim preclusion bars

Plaintiff’s claim for mandamus and injunctive relief. (Doc. #97).

Plaintiff argues Defendant is seeking to deprive Plaintiff of a trial on the merits and

stripping Plaintiff of its constitutional rights. (Doc. #108). Plaintiff argues Defendant’s application

of Chapter 520 is unconstitutional, and it is therefore inappropriately refusing to issue a CO.

Chapter 520 reads, in relevant part:

Section 520.010 Permit Requirement.

A. Except as provided in Section 520.020, no person shall, without first obtaining

a grading permit for such work from the Building Official, alter or cause to be

altered the present surface of the ground.

. . . .

Section 520.030 Exceptions.

A. A grading permit is not required for the following:

1. Where grading is a part of an approved subdivision development for which

street and utility plans have been approved.

PARKVILLE, MO., ORD. NO. 1206 §§ 1–3, 2-5-1990. In addition, Plaintiff alleges unequal treatment,

contends Defendant has singled out Lot 9, and argues the drainage issues central to this case are a

regional concern Defendant is trying to force Plaintiff to fix on its behalf. Plaintiff argues there are

genuine issues of material fact that preclude summary judgment.

I. Mo. Rev. Stat. § 89.110 Does Not Bar Plaintiff’s Claims.

Defendant argues § 89.110 provides the exclusive remedy for Plaintiff’s grievances and

therefore requires dismissal of all claims. (Doc. #97). Defendant asserts that Plaintiff understood

it had to apply to the Board of Zoning Adjustment (“BZA”) regarding Defendant’s decision to

deny a Final CO. Defendant argues Plaintiff applied to the BZA and the BZA denied Plaintiff’s

appeal on November 28, 2023, and Plaintiff knew that decision was final. Consistent with § 89.110,

Defendant argues Plaintiff’s valid and exclusive remedy was to then file an action in state court by

December 28, 2023, challenging the BZA’s denial. Because Plaintiff instead filed this suit in

federal court, Defendant argues its claims are barred.

In opposition, Plaintiff argues § 89.110 is inapplicable. (Doc. #104). Plaintiff argues first

and foremost that it never in fact received a decision from the BZA. Regardless, Plaintiff argues

§ 89.110 does not preclude suits where a party challenges the constitutionality of how an ordinance

was applied. Plaintiff argues it is making that very type of challenge and not merely challenging a

decision by the BZA.

Decisions by the City of Parkville to deny a CO are reviewable by the BZA. Section 89.110

of the Missouri Code provides the requisite statutory procedure to contest the decision of a BZA

in Missouri. It states, in part, the following:

Any person or persons jointly or severally aggrieved by any decision of the board

of adjustment, . . . may present to the circuit court of the county or city in which the

property affected is located a petition, duly verified, setting forth that such decision

is illegal, in whole or in part, specifying the grounds of the illegality. Such petition

shall be presented to the court within thirty days after the filing of the decision in

the office of the board.

Mo. Rev. Stat. § 89.110. The Missouri Court of Appeals has held that a distinction exists under

§ 89.110 between attacks on the decision of a board of adjustment and attacks on the validity of

an ordinance, including as-applied constitutional challenges. Duffner v. City of St. Peters, 482

S.W.3d 811, 817–18 (Mo. Ct. App. 2016). Section 89.110 provides a valid, and therefore

exclusive, remedy for the former but not the latter type of challenge. Id. Moreover, the scope of

the statute is limited to decisions by BZAs, and it does not apply to decisions by any other entities.

Babb v. Missouri Pub. Serv. Comm’n, 414 S.W.3d 64, 74 (Mo. Ct. App. 2013).

Here, the Community Development Director of the City of Parkville informed Plaintiff

over email that the BZA would not hold a hearing regarding the CO denial because Plaintiff’s

application was filed beyond the 30-day deadline required by Parkville Municipal Code § 403.090.

(Doc. #1-25 at 3). Plaintiff argues the rejection of its appeal in this manner does not qualify as a

BZA decision subject to § 89.110. (Doc. #104). Meanwhile, Defendant presumes without

argument that these communications constitute a BZA decision. (Doc. #97).

No Missouri court has addressed the issue of whether rejection of an appeal by the BZA as

untimely constitutes a decision of the BZA. However, as a general matter of law, rejecting an

appeal as untimely—although not a decision on the merits—is a decision. See, e.g., Barnes v.

Arkansas Dep’t of Correction, 485 F. App’x 151, 152 (8th Cir. 2012) (“appeal was not decided on

the merits but was denied because it was untimely”). But even if the rejection did not constitute a

“decision” for purposes of § 89.110, a federal court has no power to review the application of a

city ordinance for its correctness unless it raises a federal question. Merrell Dow Pharms. Inc. v.

Thompson, 478 U.S. 804, 807–09 (1986) (explaining the requirements of federal question

jurisdiction). General claims that the City of Parkville incorrectly applied one of its own ordinances

to a property within its borders is a legal concern that on its face raises no federal question. If

Plaintiff were only bringing a facial challenge to Defendant’s action—arguing Defendant simply

applied the ordinance incorrectly—such claims, standing alone, are barred.

However, Plaintiff also brings an as-applied challenge to the application of Chapter 520 by

Defendant. Plaintiff alleges Defendant’s refusal to issue a Final CO for Lot 9 due to the 520-

grading issue was an unconstitutional action in violation of the Fifth Amendment because it

constitutes a taking without just compensation under these particular circumstances. (Doc. #1 at

19). This type of as-applied challenge raises a federal question and is “not encompassed by the

statutory procedure for contesting a decision of the Board.” Duffner, 482 S.W.3d at *818–19.

In evaluating the Counts alleged in Plaintiff’s complaint, the Court will consider Plaintiff’s

as-applied arguments. To the extent it is necessary to decide whether Defendant incorrectly applied

its ordinance to Plaintiff such that it violated Plaintiff’s federal rights, this Court exercises

supplemental jurisdiction over that issue because it arises from the same case or controversy. 28

U.S.C. § 1367(a); Hunter v. Page Cnty., Iowa, 102 F.4th 853, 868–72 (8th Cir. 2024); Texas

Disposal Sys., Inc. v. City of Austin, Texas, No. A-11-CV-1070-LY, 2014 WL 12768460, at *7

(W.D. Tex. Mar. 20, 2014) (exercising supplemental jurisdiction over a plaintiff’s claim that the

city improperly determined it violated a city ordinance).

II. Defendant is Not Entitled to Summary Judgment on Count I Regulatory Taking.

In its complaint, Plaintiff asserts Count I – Regulatory Taking. (Doc. #1 at 19). To support

Count I, Plaintiff alleges Defendant wrongfully refused to grant it a Final CO, refused to perform

a final inspection, and refused its Application for Appeal of Administrative Decision. Id. at 19–

20. Plaintiff argues these actions advanced no legitimate state interest reasonably related to

Chapter 520 and deprived Plaintiff of all reasonable or economic use of the property.

In asking for summary judgment, Defendant argues there is no basis for a regulatory taking

or inverse condemnation claim because Plaintiff had no vested rights in the Final CO, but even if

it did, a takings analysis favors Defendant. (Doc. #97 at 13–20). According to Defendant, Plaintiff

believes it obtained vested rights by purchasing the property because it fell within the bounds of a

city-approved plat. However, Defendants argue one cannot purchase vested rights, so Plaintiff’s

belief is incorrect. Defendant contends it had a valid right to withhold the Final CO, so Plaintiff’s

rights were not vested. Even if Plaintiff had vested property rights, Defendant argues Plaintiff has

not been deprived of all economic value or all use of its property.

In opposition, Plaintiff asserts that Defendant’s arguments are incorrect. (Doc. #104).

Plaintiff argues its vested right is the right to a reasonable economically beneficial use, which does

not exist because Defendant has made it impossible for the land to be sold anywhere near its fair

market value. Plaintiff argues the value of the property need not be reduced to absolutely nothing

but to the point where a property owner could realize no reasonable economic use. Plaintiff

additionally contends that Defendant’s actions serve no legitimate public purpose.

The Takings Clause of the Fifth Amendment to the United States Constitution, made

applicable to the States through the Fourteenth Amendment, prohibits the taking of private

property for public use without just compensation. U.S. Const. amend. V; Chicago, B. & Q.R. Co.

v. Chicago, 166 U.S. 226 (1897). Where government regulation restricts the use of private property

so onerously as to become the functional equivalent of a physical taking, it is considered a

regulatory taking and the requirements of the Fifth Amendment apply. Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1014 (1992); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 414–15

(1922). Only claimants with vested property rights may raise a regulatory taking claim. Landgraf

v. USI Film Prods., 511 U.S. 244, 266 (1994).

Here, Plaintiff has vested property rights. Defendant mischaracterizes Plaintiff’s property

right—or more specifically, the lack thereof—as an interest in the Final CO. (Doc. #97). Defendant

argues city officials have discretion to deny COs and the law regulating COs can always be

changed, so Plaintiff has no vested rights. However, Plaintiff’s claim is not that it was entitled to

the Final CO and denial itself is a taking, but that it has the right to an economically beneficial use

of Lot 9 and the land-use regulation as-applied to it constitutes a regulatory taking by denying all

economically beneficial or productive use of the land. Plaintiff has vested rights in Lot 9 because

a landowner possesses the right to use and enjoy their land. Labrayere v. Bohr Farms, LLC, 458

S.W.3d 319, 332 (Mo. 2015) (“There is no doubt that individuals have a fundamental constitutional

right to use and enjoy property free from arbitrary governmental interference.”); Henneford v.

Silas Mason Co., 300 U.S. 577, 582 (1937) (“The privilege of use is only one attribute, among

many, of the bundle of privileges that make up property or ownership.”). Therefore, Plaintiff may

bring a claim under the Takings Clause.

Even if Plaintiff were asserting that it was entitled to the Final CO, the Court would still

find that it has vested property rights. “The issuing of a permit is a ministerial act, not a

discretionary act, which may not be refused if the requirements of the applicable ordinance have

been met.” Curry Inv. Co. v. Bd. of Zoning Adjustment of Kansas City, Missouri, 399 S.W.3d 106,

109 (Mo. Ct. App. 2013) (quoting State ex rel. Kugler v. City of Maryland Heights, 817 S.W.2d

931, 933 (Mo. Ct. App. 1991)). Plaintiff alleges Lot 9 meets all the requirements of City of

Parkville ordinances, which leaves city officials with no discretion to deny the Final CO.

Consequently, Plaintiff has a vested right in receipt of the certificate of occupancy, not merely an

expectation. In other words, Plaintiff has a legitimate claim of entitlement to the Final CO,

resulting in a protectable property interest. Stevenson v. Blytheville Sch. Dist. #5, 800 F.3d 955,

968 (8th Cir. 2015).

The authority Defendant cites to the contrary is inapplicable. Were Plaintiff merely alleging

a vested right in the continued application of an ordinance, then the authority Defendant cites

would apply. Fisher v. Reorganized Sch. Dist. No. R-V of Grundy Cnty., 567 S.W.2d 647, 649

(Mo. 1978) (holding a party lacks a vested right where they merely expect a law to remain

unchanged); Metro Fill Dev., LLC v. St. Charles Cnty., 614 S.W.3d 582, 591 (Mo. Ct. App. 2020)

(“Missouri courts have consistently held that an application for a property-related permit does not

give the applicant a vested right in the application of a particular ordinance.”). But this case does

not present such a situation; there are no allegations that the relevant ordinances have changed in

any way since the initiation of the conflict between the parties.

“[A] plaintiff seeking to challenge a government regulation as an uncompensated taking of

private property may proceed . . . by alleging a ‘physical’ taking, a Lucas-type ‘total regulatory

taking,’ a Penn Central4 taking, or a land-use exaction violating the standards set forth in Nollan5

and Dolan6.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 548 (2005) (footnotes added). Plaintiff

has brought an as-applied total regulatory taking challenge to Defendant’s land use regulation,

arguing Defendant unconstitutionally applied Chapter 520 to Lot 9 in a manner that has deprived

Plaintiff of all reasonable beneficial use. See Keystone Bituminous Coal Ass’n v. DeBenedictis,

480 U.S. 470, 494 (1987) (distinguishing between a facial takings challenge, “a claim that the mere

enactment of a statute constitutes a taking,” and an as-applied challenge, “a claim that the particular

impact of government action on a specific piece of property requires the payment of just

compensation.”).

To prove a total regulatory taking, Plaintiff must show the land-use regulation denied it of

all economically beneficial or productive use of its land. Lucas, 505 U.S. at 1027. The question of

“whether a landowner has been deprived of all economically viable use of his property is a

predominantly factual question.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

4 Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).

5 Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987).

6 Dolan v. City of Tigard, 512 U.S. 374 (1994).

U.S. 687, 720 (1999). Therefore, unless undisputed, it is a question for the jury. Id.; see Williamson

Cnty. Reg’l Plan. Com’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

The Court acknowledges that “[d]iminution in value, standing alone, does not establish a

‘taking.’” Scott v. City of Sioux City, Iowa, 736 F.2d 1207, 1217 (8th Cir. 1984). Furthermore,

“the denial of one traditional property right does not always amount to a taking. At least where an

owner possesses a full ‘bundle’ of property rights, the destruction of one ‘strand’ of the bundle is

not a taking, because the aggregate must be viewed in its entirety.” Andrus v. Allard, 444 U.S. 51,

65–66 (1979). This remains true even where the land-use regulation prevents the most profitable

use of the property. Id. at 66.

The “test for regulatory taking requires us to compare the value that has been taken from

the property with the value that remains in the property.” Keystone, 480 U.S. at 497. Plaintiff’s

expert appraiser, Robert Marx, opined that the property is worth $207,000 without the Final CO

and would be worth $680,000 with the Final CO, representing a 70% diminution in value. (Doc.

#104-7 at 75, 83). Defendant has denied Plaintiff the most profitable use of Lot 9 by denying the

Final CO. Yet, the parties contest whether denial of the Final CO—which effectuated the alleged

taking—rendered Lot 9 valueless for purposes of a takings claim.

Defendant argues Lot 9 has value and economic use remains because Lot 9 could still be

sold to another builder or individual. (Doc. #97 at 16). To support its argument, Defendant cites

deposition testimony of two expert witnesses who stated the property has value because it can be

sold, even though the home built on the land cannot be inhabited. (Doc. #97 at 16). However, the

question for purposes of the Takings Clause is not whether the property has any value at all but

whether it still has an economically viable use. Lucas, 505 U.S. at 1015–16.

In the case of real property—as opposed to personal property whose “only economically

productive use is sale or manufacture for sale”—the Court’s focus is not on whether a piece of

land has any residual or appraisal value. Lucas, 505 U.S. at 1028; Palazzolo v. Rhode Island, 533

U.S. 606, 631 (2001) (“Assuming a taking is otherwise established, a State may not evade the duty

to compensate on the premise that the landowner is left with a token interest.”); Lost Tree Vill.

Corp. v. United States, 787 F.3d 1111, 1117–18 (Fed. Cir. 2015). Instead, the Court must

determine whether the residual value that remains is attributable to any economic use, such that

the property is “sufficiently desirable to permit property owners to sell the property to someone

for that use.” Park Ave. Tower Assocs. v. City of New York, 746 F.2d 135, 139 (2d Cir. 1984);

Lost Tree, 787 F.3d at 1119. In considering whether Lot 9 has an economically viable use, it is

important to keep in mind that the Final CO was not denied due to any fault with the house built

on the property but due to surface water related issues in the backyard, and the parties dispute

whether these issues could ever be resolved (regardless of cost).

Ultimately, it is disputed whether Lot 9 retains any economically viable use without the

Final CO. Lot 9 is designated in the Sixth Plat of the Cider Mill Ridge subdivision for a single-

family home, so the permitted use of the land is strictly limited by municipal ordinance to

residential use. Therefore, while Defendant’s regulations do not preclude all development on the

land or require the property to remain vacant, Defendant nonetheless prohibits the single use that

is permitted for Lot 9 by refusing to issue the Final CO. As a result, the value that remains for

Lot 9 may be purely residual value resulting from noneconomic uses.

Furthermore, Defendant’s argument that Lot 9 could be sold is purely speculative—it

assumes without evidence that a single-family-home property where individuals are not allowed

to reside could be sold to homebuyers or another builder. Speculation as to the use or value of land

is not proper in a takings analysis. See Olson v. United States, 292 U.S. 246, 257 (1934).

Defendant, as the moving party, bears the burden of proving that summary judgment should be

awarded because economic value remains as to Lot 9. Anderson, 477 U.S. at 256. Defendant has

failed to produce evidence that concretely supports this position. Absent such proof, it remains a

disputed material fact and Defendant is not entitled to summary judgment on Count I.

In lieu of having to demonstrate the existence of economic value, Defendant also argues

that its actions are a proper exercise of regulatory power under nuisance law. (Doc. #97 at 16–17).

A city is not liable for a total regulatory taking where its action could be sustained under state

nuisance law because such action is merely the proper exercise of police power. Lucas, 505 U.S.

at 1029. In determining whether this is the case, a court may consider the degree of harm to public

lands or adjacent private property, the value of the plaintiff’s activities and their suitability to the

area, and “the relative ease with which the alleged harm can be avoided through measures taken

by the claimant and the government (or adjacent private landowners) alike.” Id. at 1031. The

government’s position is weakened if the relevant use is engaged in by similarly situated owners,

or if such owners are permitted to continue the use denied to the plaintiff. Id.

Under Missouri law, “[t]he term ‘nuisance’ connotes the use of one’s property in a manner

which is not abstractly unlawful but which, in the circumstances, demonstrates an unreasonable

interference with the rights of neighboring property owners.” Looney v. Hindman, 649 S.W.2d

207, 213 (Mo. 1983). A property owner has committed a nuisance when the owner diverts surface

water from its natural flow by artificial means discharging it upon a servient estate. Hawkins v.

Burlington N., Inc., 514 S.W.2d 593, 600 (Mo. 1974). However, under the rule of reasonableness

“each possessor is legally privileged to make a reasonable use of his land, even though the flow of

surface waters is altered thereby and causes some harm to others, but incurs liability when his

harmful interference with the flow of surface waters is unreasonable.” Heins Implement Co. v.

Missouri Highway & Transp. Comm’n, 859 S.W.2d 681, 689 (Mo. 1993) (quoting Armstrong v.

Francis Corp., 120 A.2d 4, 8 (1956)). Reasonableness is determined on the facts of a given case,

considering whether the owner’s actions were needless or negligent or intentional. Id. at 689–90.

After weighing the relevant factors, the Court finds Defendant has not proven it is entitled

to summary judgment under a nuisance theory. The only factor weighing in favor of Defendant is

the risk of harm to adjacent private property and public lands from water intrusion. This is

admittedly persuasive, but ultimately outweighed by the remaining considerations. Plaintiff

contends that the water runoff is a regional issue created by Defendant when it approved an open

system for the Sixth Plat in 2015 that does not comply with the American Public Works

Association Section 5600. (Doc. #104 at 28). Defendant admits this fact solely for purposes of its

motion for summary judgment but argues it is immaterial because it does not change the outcome.

Plaintiff also asserts that the water eventually drains into a detention basin. Id. at 27. Defendant

neither confirms nor denies this assertion. Additionally, Plaintiff presents evidence that water

runoff is traditionally shared evenly across property lines, which Defendant also admits for

purposes of its motion. (Doc. #110 at 2). Furthermore, the parties dispute whether neighboring

property owners were permitted to take the same actions as Plaintiff yet receive a Final CO despite

the same risk of water intrusion on neighboring parcels. Id. at 8–10. Plaintiff’s activities in

constructing a home are valuable to the residential area, but whether Plaintiff’s grading is a suitable

action for the area is disputed. The parties also dispute whether Plaintiff’s actions were condoned

and supervised by City officials, but there is little evidence to suggest Plaintiff sought to

intentionally divert water onto neighboring properties in a negligent or wrongful manner. Taking

all circumstances into account and viewing them in the light most favorable to Plaintiff, it is not

clear whether Defendant’s action would be sustained under Missouri nuisance law. Therefore,

Defendant is not entitled to summary judgment on Count I under a theory of nuisance.

III. Defendant is Granted Summary Judgment on Count IV Inverse Condemnation

to the Extent it Rests on Federal Law, But Defendant is Not Entitled to Summary

Judgment on Count IV to the Extent it Rests on Missouri Law.

In the alternative to Count I, Plaintiff asserts Count IV – Inverse Condemnation. (Doc. # 1

at 25). To support Count IV, Plaintiff alleges Defendant’s actions constitute an unreasonable,

unusual, or unnatural use of Lot 9, including its proposed use of the land as a catch basin. Id. at

25–26. Plaintiff argues Defendant has effectively taken Plaintiff’s land through unlawful

application of its land use restrictions and regulations.

Defendant argues any inverse condemnation claim under federal law is improper or

duplicative of Plaintiff’s takings claim, and Plaintiff cannot assert a state inverse condemnation

claim because it is not ripe and Plaintiff lacks standing under Missouri law. (Doc. #97). Plaintiff

maintains that it has properly pled an inverse condemnation claim, genuine issues of fact exist as

to that claim, and Defendant’s arguments otherwise are without merit. (Doc. #104).

Firstly, Defendant correctly points out that Plaintiff fails to assert the law—either federal

or state—by which it means to mount its inverse condemnation claim. Therefore, the Court

addresses both, beginning with federal law.

A. Defendant is Granted Summary Judgment on Plaintiff’s Federal Inverse

Condemnation Claim Because it is Duplicative of Plaintiff’s Takings Claim.

Defendant is incorrect in arguing that the facts of this case—denial of a certificate of

occupancy—cannot support a federal inverse condemnation claim. Defendant relies heavily on

Aga v. Meade County to support this argument. No. CIV. 21-5059-JLV, 2022 WL 3716000

(D.S.D. Aug. 29, 2022), aff’d, No. 22-3046, 2023 WL 3300960 (8th Cir. May 8, 2023). However,

the portion of Aga upon which Defendant’s proposition rests explicitly applied to a state law claim

of inverse condemnation under South Dakota law.7 Id. at *16. The section of the order which

addresses the plaintiff’s federal inverse condemnation claim was resolved on other grounds. See

id. at *13–14. Since South Dakota law regarding inverse condemnation differs from federal and

Missouri law, Aga does not provide precedential value for Defendant’s position.

Yet, Defendant is correct in arguing that any federal inverse condemnation claim is

duplicative of Plaintiff’s takings claims. It is well-established that a plaintiff may not receive

double recovery for the same wrong, and therefore duplicative claims are prohibited. Margolies v.

McCleary, Inc., 447 F.3d 1115, 1125–26 (8th Cir. 2006); Conway v. Icahn & Co., 16 F.3d 504,

511 (2d Cir. 1994) (“Where a plaintiff seeks recovery for the same damages under different legal

theories, only a single recovery is allowed.”). Under federal law, an inverse condemnation claim

is an action by a landowner to recover compensation for a taking where the government took the

property at issue not through the formal exercise of eminent domain but through other means.

United States v. Clarke, 445 U.S. 253, 257 (1980); , First Eng. Evangelical Lutheran Church of

Glendale v. Los Angeles Cnty., Cal., 482 U.S. 304, 316 (1987). Therefore, a total regulatory taking

claim falls under the umbrella of inverse condemnation. Becker v. City of Hillsboro, Missouri, 667

F. Supp. 3d 996, 1001 (E.D. Mo. 2023) (“a regulatory taking is a type of inverse condemnation”);

Southview Assocs., Ltd. v. Bongartz, 980 F.2d 84, 93 n.3 (2d Cir. 1992) (“a regulatory taking—

also known as inverse condemnation”).

7 Defendant quotes in both its supporting and reply suggestions what initially appears to be very compelling support

from Aga: “Approving plats, granting building permits and issuing certificates of occupancy before property may be

inhabited are not the types of County action upon which a claim of inverse condemnation may proceed.” (Docs. #97

at 20, #108 at 6). However, upon reviewing Aga, the Court took note of the fact that Defendant had misquoted the

sentence. The accurate sentence in Aga is the following: “Approving plats, granting building permits and issuing

certificates of occupancy before property may be inhabited are not the types of County action upon which a state claim

of inverse condemnation may proceed.” Aga, 2022 WL 3716000, at *16 (emphasis added). The Court additionally

notes that Defendant cites to the incorrect page number for this quote.

Here, Plaintiff makes no claim that any type of federal inverse condemnation has occurred

other than a total regulatory taking. In Count IV, Plaintiff simply tacks on the allegation that

Defendant’s actions “constitute an unreasonable, unusual, or unnatural use” of Lot 9, which is

irrelevant to a total regulatory taking claim.8 (Doc. #1 at 25). The parties, facts, and law underlying

these federal claims are identical. Also, Plaintiff fails to raise any argument in its opposition

suggestions to contradict Defendant’s assertion that Count IV is duplicative. To the extent Count

IV is a federal inverse condemnation claim, it is duplicative of Count I, so Defendant is granted

summary judgment.

B. Defendant is Denied Summary Judgment on Plaintiff’s Missouri Inverse

Condemnation Claim.

Article I § 26 of the Missouri Constitution provides that “private property shall not be taken

or damaged for public use without just compensation.”9 Under Missouri law, inverse

condemnation a similar definition as under federal law, 10 and a regulatory taking is a type of

inverse condemnation. Cnty. of Scotland v. Missouri Pub. Entity Risk Mgmt. Fund, 537 S.W.3d

358, 364–65 (Mo. Ct. App. 2017). However, Missouri inverse condemnation claims are not limited

to regulatory takings. “Inverse condemnation may be established ‘where an invasion or

appropriation of a valuable property right that caused an injury can be shown.’” Id. (quoting Clay

Cnty. Realty Co. v. City of Gladstone, 254 S.W.3d 859, 864 (Mo. 2008)). “Inverse condemnation

8 Under Missouri law, “[n]uisance is the unreasonable, unusual, or unnatural use of one’s property so that it

substantially impairs the right of another to peacefully enjoy his property.” Frank v. Env’t Sanitation Mgmt., Inc., 687

S.W.2d 876, 880 (Mo. 1985).

9 As a preliminary matter, the Court notes that the availability of an inverse condemnation action under Missouri law

does not bar Plaintiff from bringing a Fifth Amendment Takings claim. Knick v. Twp. of Scott, Pennsylvania, 588

U.S. 180, 191 (2019) (“The availability of any particular compensation remedy, such as an inverse condemnation

claim under state law, cannot infringe or restrict the property owner’s federal constitutional claim[.]”).

10 “Inverse condemnation is a cause of action against a governmental agency to recover the value of the property taken

by the agency, though no formal exercise of the power of eminent domain has been completed.” Cnty. of Scotland v.

Missouri Pub. Entity Risk Mgmt. Fund, 537 S.W.3d 358, 364–65 (Mo. Ct. App. 2017) (quoting Dulany v. Mo. Pac.

R.R. Co., 766 S.W.2d 645, 648 (Mo. App. W.D. 1988)).

is the exclusive remedy when private property is damaged by a nuisance operated by an entity

having the power of eminent domain.” Basham v. City of Cuba, 257 S.W.3d 650, 653 (Mo. Ct.

App. 2008). “The elements of an inverse condemnation action based on nuisance are (1) notice,

(2) an unreasonable operation in spite of that notice, (3) injury, (4) damage, and (5) causation.”

Miller v. City of Wentzville, 371 S.W.3d 54, 57 (Mo. Ct. App. 2012).

Here, Plaintiff pled facts that satisfy the elements of a Missouri inverse condemnation

claim based on nuisance, and Defendant raises no argument to the contrary. Defendant also does

not argue that a Missouri inverse condemnation claim is duplicative of Plaintiff’s takings claim.

Instead, Defendant argues Plaintiff lacks standing to assert the claim and it is not ripe. (Doc. #97

at 18). Specifically, Defendant argues Plaintiff lacks standing because the damages it complains

of were ascertainable at the time it purchased the property, and inverse condemnation cannot be

sustained under Missouri law because Plaintiff failed to first assert the claim in state court.

Defendant argues this case fits squarely under State ex rel. City of Blue Springs v. Nixon,

250 S.W.3d 365, 371 (Mo. 2008), where a subsequent purchaser of property experienced

stormwater runoff issues due to defects in the area’s drainage that could be tied back to its pre-

approved plat. In City of Blue Springs, the approved plat met development codes but lacked

adequate drainage for stormwater runoff from a hill; however, this issue was ascertainable at the

time the plat was approved, which was before the plaintiffs purchased the property. Id. at 370. The

Missouri Supreme Court held the plaintiffs lacked standing to assert an inverse condemnation

claim because the damage could not pass to subsequent grantees as such claims do not run with

the land. Id. The court additionally held that even if the drainage issue was not ascertainable before

the plaintiffs owned the land, there was no affirmative conduct by the city other than approval of

a plat that—for better or worse—met municipal requirements. Id. at 371–72. Such conduct does

not rise to the level of affirmative action sufficient to support a claim of inverse condemnation

under Missouri law. Id.

In opposition, Plaintiff argues City of Blue Springs is distinguishable from the instant

action because the plat in that case met code requirements when it was approved whereas the Sixth

Plat did not. (Doc. #104 at 27–28). But Plaintiff argues the government action that is at the crux

of this case is not approval of a plat but unconstitutional denial of a Final CO. Plaintiff argues it

was not possible to ascertain at the time Lot 9 was purchased that Defendant would impose special

conditions on Plaintiff that were not reflected in the preapproved plat or later-issued building

permit. Specifically, Plaintiff refers to the fact that the Sixth Plat did not reflect a watercourse

behind Lot 9 or a storm sewer easement, which would affect Plaintiff’s right to grade to the

property line.

The Court agrees with Plaintiff that its claim is not barred by City of Blue Springs. If

Plaintiff was only alleging damage from approval of the Sixth Plat, the Court would be inclined to

agree with Defendant. However, Plaintiff’s claim centers around the denial of a Final CO, which

occurred when Plaintiff owned the land. Therefore, Plaintiff has standing to assert a Missouri

inverse condemnation claim.

As to Defendant’s argument that a Missouri inverse condemnation claim is not ripe, the

Court disagrees. Defendant argues that because Missouri law provides a remedy for inverse

condemnation in zoning and permitting matters, Plaintiff had to first assert its claim in state court,

which it failed to do. (Doc. #97 at 17). To support this argument, Plaintiff cites L.C. Dev. Co. v.

Lincoln Cnty., 996 F. Supp. 886, 888 (E.D. Mo. 1998), which relied upon the Supreme Court’s

holding in Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S.

172 (1985). In Williamson County, the Supreme Court held that a plaintiff must first seek

compensation through state inverse condemnation proceedings before bringing the claim in federal

court. Id. at 194–95. However, this portion of Williamson County was overruled in Knick v. Twp.

of Scott, Pennsylvania, 588 U.S. 180, 204–06 (2019), where the Supreme Court held that the state-

litigation requirement had proved to be unworkable. Therefore, Defendant’s ripeness argument is

unfounded.

While it remains to be seen whether Plaintiff could ultimately prove a Missouri inverse

condemnation claim, Defendant has not demonstrated it is entitled to summary judgment. Plaintiff

has standing to assert the claim, and some of the same disputed material facts that exist as to Count

I are also disputed as to Count IV. Therefore, Defendant’s motion for summary judgment as to

Count IV Missouri inverse condemnation is denied, and Count IV survives in the alternative to

Count I.

IV. Defendant is Granted Summary Judgment on Count II Procedural Due Process.

In its complaint, Plaintiff asserts Count II – Procedural Due Process Under 42 U.S.C.

§§ 1983 and 1988. (Doc. #1 at 20). To support Count II, Plaintiff alleges Defendant’s application

of Chapter 520 to Lot 9 was irrational because it is inapplicable as a matter of law. Plaintiff alleges

it was denied due process when Defendant denied it a Final CO, refused to reinspect Lot 9, rejected

its appeal to the BZA without a hearing, and failed to pay just compensation for a regulatory taking.

Defendant argues Plaintiff’s due process claim is duplicative of its takings claim and must

be dismissed as an impermissible attempt to recast its takings claim. (Doc. #97 at 20). Defendant

also argues Plaintiff has no protectable property interest because it was not entitled to the Final

CO, which it had a valid right to withhold.

In opposition, Plaintiff argues the Court should deny summary judgment because fact

questions remain that must go to a jury. (Doc. #104 at 29). Plaintiff points to Del Monte Dunes

and the Supreme Court’s holding that “whether the government had denied a constitutional right

in acting outside the bounds of its authority, and, if so, the extent of any resulting damages” were

questions for a jury. Del Monte Dunes, 526 U.S. at 722.

As stated above, duplicative claims are prohibited. Margolies v. McCleary, Inc., 447 F.3d

1115, 1125–26 (8th Cir. 2006). The duplicative concept is generally applied when a party attempts

to maintain two separate actions involving the same subject matter at the same time. See Ritchie

Cap. Mgmt., L.L.C. v. BMO Harris Bank, N.A., 868 F.3d 661, 664 (8th Cir. 2017) However, the

concept applies equally to cases involving two purportedly distinct claims that are in fact the same,

and both claims are raised in the same cause of action. See, e.g., Becker v. City of Hillsboro,

Missouri, 667 F. Supp. 3d 996, 1002–03 (E.D. Mo. 2023) (dismissing due process claim as

duplicative of takings claim).

Defendant’s argument that Plaintiff is merely recasting its takings claim as a due process

claim is persuasive. In the due process section of its opposition suggestions, Plaintiff largely

restates the arguments it made in support of its takings claim—arguing it has an interest in a

reasonable economic use of its property and Defendant deprived it of this property right by

wrongfully denying it a Final CO. (Doc. #104 at 29–30). Furthermore, the section of Del Monte

Dunes that Plaintiff cites to, to support its argument discusses fact questions related to a takings

claim, not a due process claim. 526 U.S. at 722. In fact, there was no procedural due process claim

asserted in Del Monte Dunes; the plaintiff asserted a substantive due process claim. Id. at 699.

Plaintiff’s failure to raise allegations distinguishable from its takings claim supports the

conclusion that Count II is duplicative of Count I. Moreover, in arguing its procedural due process

rights were violated, counterintuitively, Plaintiff identifies process afforded to it by Defendant.

Plaintiff notes that after learning of the City’s concerns “it attempted to comply [] by working with

the City officials to install the approved culvert pipe.” The undisputed facts also demonstrate that

there was lengthy, repeated communication concerning the grading of Lot 9, as well as written

documents placing Plaintiff on notice as to the issues (for example, the temporary CO, which

identified a “Section 520” issue on December 19, 2022). This all supports a finding that adequate

process existed, but because Plaintiff’s due process claim is simply duplicative of its takings claim

the Court need not examine this issue any further. Gearhart, 553 F. App’x at 660; see also Pietsch

v. Ward Cnty., 991 F.3d 907, 909 (8th Cir. 2021) (holding that plaintiffs were impermissibly

attempting to recast a takings claim as a due process claim). Defendant is granted summary

judgment on Count II Procedural Due Process.

V. Defendant is Not Entitled to Summary Judgment on Count III Equal Protection.

In its complaint, Plaintiff asserts Count III – Equal Protection. (Doc. #1 at 22). To support

Count III, Plaintiff alleges Defendant selectively enforced the City of Parkville Municipal Code

against Plaintiff in an effort to force Plaintiff to bear the cost of remediating drainage issues caused

by Defendant’s approval of the Sixth Plat. Plaintiff further alleges Defendant selectively targeted

Plaintiff for discriminatory treatment by refusing to grant the Final CO for Lot 9 with no rational

basis for such action. Plaintiff alleges it was similarly situated to other individuals yet received

this discriminatory treatment in violation of its equal protection rights.

Defendant argues it is entitled to summary judgment on Count III because Plaintiff will be

unable to prove a class-of-one discrimination claim. (Doc. #97 at 23). Defendant contends Plaintiff

was denied a Final CO because Lot 9 did not comply with Chapter 520 of the municipal code,

whereas all properties that received Final COs were in compliance. Defendant also contends that

no other landowners attempted to completely backfill the swale, but Plaintiff did and this led to

the denial of the Final CO. Consequently, Defendant argues, it treated Plaintiff equally to all other

builders. Yet, even if there was disparate treatment, Defendant argues it had a rational basis for

withholding the Final CO.

In opposition, Plaintiff argues it has been treated differently than any other builder that has

built within the City of Parkville. (Doc. #104 at 31). Plaintiff states it has been unable to locate

any other instance where a builder was required to obtain a Chapter 520 permit, and all other

similarly situated builders were allowed to grade into the drainage area behind the homes on

Promenade Drive without first obtaining a Chapter 520 permit. Plaintiff argues additionally that a

City alderman was given preferential treatment. Plaintiff argues there is no legitimate purpose for

the disparate treatment because it complied with all city ordinances and Defendant’s stated purpose

is illegitimate. At minimum, Plaintiff contends that disputed factual questions remain on Count

III, requiring the claim to be submitted to the jury.

“The purpose of the equal protection clause of the Fourteenth Amendment is to secure

every person within the state’s jurisdiction against intentional and arbitrary discrimination,

whether occasioned by express terms of a statute or by its improper execution through duly

constituted agents.” Sioux City Bridge Co. v. Dakota Cnty., Neb., 260 U.S. 441, 445 (1923)

(quoting Sunday Lake Iron Co. v. Wakefield Twp., 247 U.S. 350, 352 (1918)). To that end, the

Supreme Court has recognized two types of equal protection claims: class-based discrimination

and “class of one” discrimination. Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 601 (2008).

“A class-of-one claim is stated when a plaintiff alleges that a defendant intentionally treated [it]

differently from others who are similarly situated and that no rational basis existed for the

difference in treatment.” Mathers v. Wright, 636 F.3d 396, 399 (8th Cir. 2011).

Here, Plaintiff does not question the City’s general permitting or CO practices or

ordinances; Plaintiff questions a particular decision to deny a specific CO. In other words, Plaintiff

alleges a class-of-one equal protection claim. Therefore, Plaintiff must provide a “specific and

detailed account of the nature of the preferred treatment of the favored class[.]” Mensie v. City of

Little Rock, 917 F.3d 685, 692 (8th Cir. 2019) (internal quotation omitted). And “the persons

alleged to have been treated more favorably must be identical or directly comparable to the plaintiff

in all material respects.” Id. (internal quotation omitted).

Defendant fails to show that it would not be possible for Plaintiff to satisfy this demanding

standard at trial, and disputed facts remain so as to preclude summary judgment on Count III. First,

the class of similarly situated individuals identified by Plaintiff is comparable in all material

respects. Plaintiff identifies other homebuilders on the same street, Promenade Drive, who built

single-family homes in the Sixth Plat. Plaintiff even includes itself in the group with regard to its

other lots.

Plaintiff alleges the similarly situated class has engaged in the same actions with respect to

other properties on Promenade Drive as Plaintiff engaged in on Lot 9. Specifically, Plaintiff argues

they graded all the way to their property lines and into the same drainage area. Plaintiff also argues

another similarly situated builder, a city alderman, was given preferential treatment and was

allowed not only to grade into the drainage area behind his home but also to build a stone bridge

with two culvert pipes. Additionally, Plaintiff contends that no other builder was required to pull

a 520-grading permit to engage in the same conduct as Plaintiff. Defendant disputes this fact,

arguing the other builders were not required to apply for such permits, unlike Plaintiff, because

none of them attempted to completely backfill the swale.11 Whether Plaintiff was subject to

disparate treatment compared with a similarly situated class of individuals is therefore a disputed

material fact.

11 It is unclear to the Court based on the current record whether grading all the way to the property line is the same

as backfilling the swale.

However, Defendant urges the Court to discount Plaintiff’s evidence, arguing the evidence

Plaintiff cites to support its claims of disparate treatment is inadmissible hearsay and could not be

presented at trial. This may or may not prove to be the case, but Plaintiff will have its opportunity

to try. If Plaintiff is able to prove these facts at trial (through admissible evidence) then it will have

demonstrated that Defendant selectively enforced its ordinance against Plaintiff. As of now, these

material facts are disputed.

In addition, whether Defendant’s actions are supported by a rational basis and are therefore

constitutional is also disputed. Defendant argues even if Plaintiff faced disparate treatment, it was

supported by a rational basis and therefore cannot constitute an equal protection violation. (Doc.

#97 at 24). Defendant argues the Final CO was denied due to the need for proper drainage and to

protect adjacent landowners, which is more than a rational basis. However, Plaintiff argues

because Lot 9 was the last lot to be developed in the area, it presented the last opportunity to

address the drainage issues of the Sixth Plat; and recognizing this, Defendant treated Plaintiff

differently with respect to Lot 9 so as to force it to fix the problem. Where no suspect classification

is involved, disparate treatment by a city is valid so long as there is a rational relationship between

the disparate treatment and some legitimate governmental purpose. Heller v. Doe by Doe, 509 U.S.

312, 320 (1993).

Viewing the facts in Plaintiff’s favor, a jury could conclude that Defendant’s conduct is

not supported by a rational basis. Defendant’s stated goal of preventing potentially damaging water

intrusion on the properties adjacent to Lot 9 is a legitimate goal. The means by which Defendant

sought to achieve that goal—deny a Final CO until the drainage issue is resolved—is rational, even

if it is an imperfect fit. Heller, 509 U.S. at 321. However, relying on deposition testimony, Plaintiff

insists any water that drains behind Lot 9 is shared evenly across the property line and drains into

a detention basin. (Doc. #104 at 27). If this is true, Defendant’s stated purpose for the disparate

treatment is untenable, and because Defendant does not allege any other reason for the treatment,

there is no rational basis. Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 500 (2d Cir. 2001)

(holding in the property law context that a city’s decision is irrational where it “acts with no

legitimate reason for its decision”); see also Pro-Eco, Inc. v. Bd. of Comm'rs of Jay Cnty., Ind., 57

F.3d 505, 515 (7th Cir. 1995) (“An ordinance generally applicable on its face but enforced for no

legitimate reason against only an individual or a particular class may violate the Equal Protection

Clause.”).

At this time, the evidence supports conflicting conclusions. Plaintiff has presented a

genuine issue as to whether Defendant’s actions constituted disparate treatment and whether said

treatment was supported by a rational basis. Therefore, Defendant’s motion for summary judgment

as to Count III Equal Protection must be denied.

VI. Defendant is Not Entitled to Summary Judgment on Count V Mandamus and

Declaratory Judgment.

In its complaint, Plaintiff asserts Count V – Mandamus and Declaratory Judgment. (Doc.

#1 at 27). To support Count V, Plaintiff alleges the City wrongfully denied a Final CO for Lot 9

based solely on the application of an ordinance (Chapter 520) to which Lot 9 is exempt. Plaintiff

alleges Defendant has no other reason to deny its Final CO, and therefore it is entitled to a writ of

mandamus ordering Defendant to issue the Final CO. Plaintiff also alleges it has exhausted its

administrative remedies.

Defendant argues Count V is barred by claim preclusion, or res judicata, based on a prior

state court judgment issued against Plaintiff. (Doc. #97 at 24–25). Defendant contends the Platte

County Circuit Court12 held briefing and hearing on the merits of Plaintiff’s mandamus claim, and

all other elements of claim preclusion are satisfied. Therefore, Defendant asks for summary

judgment on Count V.

Plaintiff makes no attempt to address Defendant’s position in the argument section of its

opposition suggestions. (Doc. #104). However, Plaintiff contradicts Defendant’s characterization

of the state court case in the facts section—arguing the case was not dismissed on the merits—so

the Court does not deem the argument waived. Id. at 17. In the facts section, Plaintiff contends the

state court case was not dismissed on the merits and cites Missouri statutory law that states

“involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall

otherwise specify.” Id. at 17 (citing Mo. R. Civ. P. 67.03).

The doctrine of claim preclusion bars parties from relitigating matters previously

adjudicated. San Remo Hotel, L.P. v. City & Cnty. of San Francisco, Cal., 545 U.S. 323, 336

(2005). “Federal courts are required ‘to give preclusive effect to state-court judgments whenever

the courts of the State from which the judgments emerged would do so.’” Brown v. Kansas City

Live, LLC, 931 F.3d 712, 714 (8th Cir. 2019) (quoting Allen v. McCurry, 449 U.S. 90, 96 (1980)

(citing 28 U.S.C. § 1738)); Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).

Here, the judgment at issue was rendered by the Circuit Court for Platte County, Missouri, so

Missouri claim preclusion law applies. “Under Missouri law res judicata applies where (1) the

prior judgment was rendered by a court of competent jurisdiction, (2) the decision was the final

judgment on the merits, and (3) the same cause of action and the same parties or their privies were

12 In the supporting suggestions accompanying Defendant’s motion, Defendant mistakenly refers to a “Clay” County

Circuit Court case. The relevant state case was based in the Platte County Circuit Court, which is correctly noted in

the other sections of Defendant’s suggestions.

involved in both cases.” Brown, 931 F.3d at 714 (citing Bannum, Inc. v. City of St. Louis, 195

S.W.3d 541, 544 (Mo. Ct. App. 2006) (cleaned up).

Similarly, issue preclusion, or collateral estoppel, bars relitigation of factual or legal issues

determined in a previous action. Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1475 (8th Cir.

1994). As with claim preclusion, a federal court applies the law of the forum state that issued the

prior judgment to determine its preclusive effect. Id. Issue preclusion applies in Missouri when (1)

the issue in the present case identical to the issue decided in the prior adjudication, (2) there is a

prior judgment on the merits, (3) the party against whom issue preclusion is asserted is the same

or in privity with the party in the prior suit, and (4) party against whom issue preclusion is asserted

had a full and fair opportunity to litigate the issue in the prior suit. State ex rel. Johns v. Kays, 181

S.W.3d 565, 566 (Mo. 2006).

It is unclear whether Defendant means to assert claim or issue preclusion. Defendant

consistently refers to “claim” preclusion. (Doc. #97 at 25–26). However, in practice Defendant

appears to be seeking issue preclusion, because it makes no argument that the state court judgment

has preclusive effect beyond Count V. Regardless, Defendant’s arguments are insufficient to

satisfy the elements of either claim or issue preclusion under Missouri law because the prior state

court judgment was not “on the merits” of Plaintiff’s mandamus claim.

As a preliminary matter, it must be acknowledged that the record before the Court on the

prior state court judgement is incomplete. The Court has a copy of the judgment of dismissal,

issued October 3, 2023, which simply states the City of Parkville’s motion to dismiss is granted.13

13 The state court “Judgment of Dismissal” states the following:

“COMES NOW this Court, having reviewed Respondents’ Motion to Dismiss Relator’s Petition for

Writ of Mandamus and to Quash the Preliminary Order in Mandamus and Respondent’s Suggestions in

Support of that Motion; Relator’s Opposition to Respondent’s Motion to Dismiss; and having heard

argument of counsel both in support of, and in opposition to, said Motion, this Court:

GRANTS Respondents’ Motion to Dismiss Relator’s Petition for Writ of Mandamus and to Quash

the Preliminary Order in Mandamus.”

(Doc. #1-20). The Court does not possess copies of any of the briefings filed in state court or a

transcript of the hearing that was held. Unfortunately, the Court also received very little description

from the parties of the nature of the discussions in state court.

Based on the evidence presented, the Court finds the prior state court judgment was not a

judgment on the merits, so Defendant is not entitled to summary judgment as a matter of law.

Defendant states that the prior case was dismissed because the state court found that Plaintiff failed

to exhaust administrative remedies. (Doc. #108 at 7). About a month after this dismissal, Plaintiff

filed its appeal with the BZA, which was rejected as untimely on November 28, 2023. Even if the

state of administrative exhaustion in this matter were unchanged, the prior dismissal for failure to

exhaust administrative remedies is not a dismissal on the merits.

In Normandy Sch. Dist. v. City of Pasadena Hills, the Missouri Court of Appeals held that

“[r]es judicata will not attach from a dismissal for failing to exhaust administrative remedies.” 70

S.W.3d 488, 495 (Mo. Ct. App. 2002). Normandy involved a school district that had applied twice

for a building permit to install portable classrooms, and was twice denied by the city for failure to

comply with its zoning ordinances. After the first permit application was denied, the school district

appealed directly to the circuit court (instead of the BZA), and the circuit court dismissed the case

for failure to exhaust administrative remedies. The Court of Appeals reasoned that under those

circumstances, where a party has not received an administrative hearing regarding the alleged

ordinance violation, the dismissal by the circuit court is not on the merits. This reasoning is equally

applicable in the issue preclusion context. See Korte Trucking Co. v. Broadway Ford Truck Sales,

Inc., 877 S.W.2d 218, 220 (Mo. Ct. App. 1994) (“[B]oth the doctrines of res judicata and collateral

estoppel apply to judgments rendered upon the merits.”).

This quotation represents the state court order in its entirety, other than the case caption and a signature line.

The circumstances here parallel those in Normandy and require a finding that the prior

dismissal in the Platte County Circuit Court was not a dismissal on the merits. Here, Plaintiff was

denied a Final CO for Lot 9. Seeking to overturn the City’s decision, Plaintiff filed an action for a

writ of mandamus in the Platte County Circuit Court. The circuit court dismissed the action without

prejudice because Plaintiff failed to exhaust administrative remedies. Therefore, as explained

above, it was not a judgment on the merits. Since the prior state action was not a judgment on the

merits, it lacks preclusive effect under Missouri law. Consequently, Defendant is not entitled to

summary judgment as a matter of law and its motion is denied as to Count V. Accordingly, it is

hereby

ORDERED Defendant’s motion for summary judgment (Doc. #96) is GRANTED IN

PART AND DENIED IN PART. Summary judgment is GRANTED on Counts II and IV to the

extent it is a Federal Inverse Condemnation Claim, and DENIED on Counts I, III, IV to the extent

it is a Missouri Inverse Condemnation Claim, and Count V.

IT IS SO ORDERED.

Dated: January 24, 2025 /s/ Brian C. Wimes

JUDGE BRIAN C. WIMES

UNITED STATES DISTRICT COURT