# Bannum, Inc. v. City of Louisville, Kentucky

> Court of Appeals for the Sixth Circuit · May 12, 1992 · 958 F.2d 1354

URL: https://www.frixlaw.com/law-library/cases/9482712

## Case

- **Full name:** BANNUM, INC., Plaintiff-Appellee, v. CITY OF LOUISVILLE, KENTUCKY, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** May 12, 1992
- **Citations:** 958 F.2d 1354; 1992 WL 52518
- **Precedential status:** Published
- **Opinion:** Dissent by Nelson
- **Judges:** Jones, Nelson, Joiner
- **Cited by:** 56 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/9482712

## How later opinions describe it (automated extraction)

- holding that finality means that “further administrative action by [the applicant] would not be productive .... [This test] can be met by ... evidence [other than exhaustion of remedies] and can be satisfied prior to compliance with all the requisite procedures”
- holding that the city had reached a “final determination” regarding plaintiffs property only after plaintiff unsuccessfully applied to the board of zoning adjustments for a nonconforming use variance
- explaining that although further administrative actions could have been pursued, the requirements of the finality doctrine were met as seeking further administrative re dress would have been futile
- applying Williamson County 's finality requirement to plaintiff's claim that the procedures mandated by the city's zoning regulations denied it equal protection under the law
- holding that different treatment is initial element of equal protection violation

## Opinion text

DAVID A. NELSON, Circuit Judge,
dissenting.
The plaintiff never applied for a conditional use permit. The threshold issue, therefore, is whether the plaintiff’s claim is ripe for adjudication. On the facts of this case, it seems to me, the logic of Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (1985), compels the conclusion that the claim is not ripe and that it ought to have been dismissed on that ground.
Williamson involved a situation where a landowner and its predecessor in title had made extensive efforts to secure permission from local zoning authorities to develop a residential subdivision. A proposed plat of the subdivision was eventually disapproved by a regional planning commission for the reason, among others, that the plat did not comply with the applicable zoning regulations. Without seeking variances (which the commission had the power to grant and which, if granted, would have resolved a majority of the commission’s objections to the plat), the landowner brought a lawsuit under 42 U.S.C. § 1983 alleging that its property had been taken *1365 without just compensation. The Supreme Court held that the suit was premature:
“Because respondent has not yet obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, nor utilized the procedures Tennessee provides for obtaining just compensation, respondent’s claim is not ripe.” Id. at 186 , 105 S.Ct. at 3116 .
Citing Patsy v. Florida Bd. of Regents, 457 U.S. 496 , 102 S.Ct. 2557 , 73 L.Ed.2d 172 (1982) — the decision on which the district court relied in the case at bar — the respondent landowner argued, in Williamson, that it did not have to seek variances because exhaustion of administrative remedies is not a prerequisite to the bringing of a § 1983 action. In response to this argument the Supreme Court pointed out that “[t]he question whether administrative remedies must be exhausted is conceptually distinct ... from the question whether an administrative action must be final before it is judicially reviewable.” Williamson, 473 U.S. at 192 , 105 S.Ct. at 3119 . In no way does Patsy suggest that administrative action is judicially reviewable before it has become final — before “the initial de-cisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury_” Williamson, 473 U.S. at 193 , 105 S.Ct. at 3120 .
Resort to the procedures for obtaining variances, the Williamson Court went on to observe, “would result in a conclusive determination by the Commission whether it would allow respondent to develop the subdivision in the manner respondent proposed.” Id. (emphasis supplied). Mere disapproval of the plat was not enough: “the Commission’s denial of approval does not conclusively determine whether respondent will be denied all reasonable beneficial use of its property, and therefore is not a final, reviewable decision.” Id. at 194 , 105 S.Ct. at 3120 (emphasis supplied).
The finality requirement — the requirement that the administrative agency responsible for deciding such matters make a “conclusive” determination that the land may not be used in the desired manner — is no less applicable to equal protection claims than it is to claims based on the takings clause. See, e.g., Landmark Land Co. of Oklahoma, Inc. v. Buchanan, 874 F.2d 717, 722 (10th Cir.1989), and Harris v. County of Riverside, 904 F.2d 497, 500 (9th Cir.1990), both of which were cited with evident approval by this court in Nasierowski Bros. Investment Co. v. City of Sterling Hgts., 949 F.2d 890 (6th Cir.1991). (Although Nasierowski held that the finality requirement does not apply to certain types of due process claims, no such claim is before us here.) There is “no doubt,” according to the Ninth Circuit, “that equal protection claims and substantive due process claims are to be analyzed for ripeness in the same way that regulatory taking claims are analyzed: ‘[T]he [landowners’] equal protection claim is not ripe for consideration by the district court “until planning authorities and state review entities make a final determination on the status of the property.” ’ ” Shelter Creek Development Corp. v. City of Oxnard, 838 F.2d 375, 379 (9th Cir.), cert. denied, 488 U.S. 851 , 109 S.Ct. 134 , 102 L.Ed.2d 106 (1988), quoting Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir.1986), as quoted in Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1455-56 (9th Cir.1987).
There is nothing to the contrary in City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985), an equal protection case decided only three days after Williamson. Like plaintiff Bannum in the case at bar, the plaintiff in Cleburne was told that a special use permit would be required for the operation of a group home; unlike plaintiff Bannum, however, the Cle-burne plaintiff saw fit to submit a permit application. Cleburne, 473 U.S. at 436 , 105 S.Ct. at 3252 . After a public hearing, the permit was denied by a vote of 3 to 1. Id. at 437 , 105 S.Ct. at 3252. Only after the permit had been denied did the plaintiff file suit — and it was the denial of the permit on which the Supreme Court focused in the very first sentence of its opinion. (“A Texas city denied a special use permit for the operation of a group home for the mentally *1366 retarded, acting pursuant to a municipal zoning ordinance requiring permits for such homes.” Id. at 435, 105 S.Ct. at 3251.)
The Cleburne Court emphasized that if there was a denial of equal protection “in the circumstances here” — i.e., where the plaintiff had actually applied for a special use permit and been turned down — there would be “no occasion to decide whether the special use permit provision is facially invalid....” 473 U.S. at 447, 105 S.Ct. at 3258. The Court noted that the preferred course would be to refrain from deciding the constitutionality of the ordinance on its face, thus avoiding the risk of “making unnecessarily broad constitutional judgments.” Id.
It was precisely the risk of making “unnecessarily broad constitutional judgments” that plaintiff Bannum invited the courts to assume in the case at bar when the company elected to file suit without having applied for a permit that might have allowed it to operate a community training center at a location and in a manner acceptable to all concerned. Williamson, in my view, teaches that such invitations ought to be declined.
The present case would have come to us in a different posture, of course, had the district court expressly found that it would have been futile for Bannum to apply for a permit. The district court made no direct finding on futility, however, and I can see nothing in the record to justify our determining that submission of a permit application would have been futile. The support claimed for such a finding strikes me as highly problematic.
As far as I can tell, Bannum never sought a non-conforming use variance with respect to the East Washington Street property, the location at which the Dismas halfway house was operated until 1985. Mr. David Lowry, the director of Dismas House, did indicate that he or his counsel submitted three affidavits to the City of Louisville’s Department of Licenses, Permits and Inspections in an effort to establish a non-conforming use for Bannum’s Clay Street property. (It was the Clay Street property where Bannum’s administrative offices were located; there was no halfway house there.)
The City’s response to this submission, contained in a letter dated January 15, 1986, stated that the claim for nonconforming use status “must be heard by the Board of Zoning Adjustments and cannot be administratively decided by the City of Louisville Department of Licenses, Permits and Inspections.” The letter went on to say that the Board of Zoning Adjustment would have to issue a conditional use permit: “In reviewing this matter with Mr. Alex Talbott, the attorney for the Jefferson County Planning Commission and Board of Zoning Adjustment, I learned that it was his opinion that the proposed use to which your client plans to put the Clay Street property is properly categorized as an institutional use and that a conditional use permit will be required for such use in an M-2 zoning district and in any zoning district in the city.”
Bannum was thus told in so many words that “a conditional use permit will be required.” Although Bannum admits that it could have applied for such permit, it never did so. There was no permit application at all, “meaningful” or otherwise. And there was certainly no conclusive determination that a permit would not be issued.
If Bannum had submitted a properly documented permit application, the company would have been entitled to a public hearing before the Louisville and Jefferson County Board of Zoning Adjustment. City officials and residents of whatever neighborhood Bannum ultimately selected as a proposed site 1 would have had an opportunity to testify in opposition to the granting of a permit, and perhaps they would have done so. I am not prepared to say, however, that the Board of Zoning Adjustment *1367 would necessarily have denied Bannum a permit regardless of what location was proposed and regardless of what justification Bannum offered for that location. Neither am I prepared to say, where group housing for convicted felons is concerned, that the Equal Protection Clause is violated by the mere requirement for filing an application for a conditional use permit.
. Bannum was not wedded to either the East Washington Street property or the Clay Street property. Mr. Lowry testified that if he had been told that there was some zoning district other than an M-2 district in which the proposed facility could be located without a permit, he would have made an effort to move there.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9482712. Public record. Not legal advice.