KTK Mining of Virginia, LLC v. City of Selma, 984 F. Supp. 2d 1209

KTK Mining was issued a building permit by Selma’s Building Inspector (after a Certificate of Appropriateness was obtained for work in a historic district) to perform nonprofit refurbishment and relocate a monument in Confederate Memorial Circle.
Protesters repeatedly disrupted work in August 2012; after municipal elections, Selma’s Chief of Police prevented KTK employees from resuming work and threatened arrest.
On September 25, 2012, the Selma City Council voted (on an item not on the published agenda and without notifying KTK) to suspend/revoke the permit "until a Court Ruling" on ownership/use of the Circle; the building inspector never formally revoked the permit and no stop-work order was issued.
KTK sued under 42 U.S.C. § 1983 alleging, inter alia, that the City deprived it of a property interest in the building permit without constitutionally adequate process (procedural due process claim). The court previously dismissed some claims but left KTK’s procedural due process claims pending against the City.
On cross-motions for summary judgment, the district court found no genuine dispute that KTK had a federally protectable property interest in the building permit, that the City’s actions constituted state action, and that KTK was denied constitutionally required pre-deprivation notice and hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether KTK had a constitutionally protected property interest in the building permit	KTK had a clear entitlement to the permit under city code and thus a protected property interest	City argued KTK’s rights were uncertain (ownership/use of Circle) and permit did not create protectable interest	Court: KTK showed a clear entitlement under adopted building code; property interest exists
Whether the City’s conduct was state action depriving KTK of that interest	Council vote and Chief Riley’s actions deprived KTK of use of the permit	City did not dispute state-action element but contended action was legislative	Court: Conduct constituted state action; vote and police interference suffice
Whether pre-deprivation process was required (Mathews balancing)	KTK: substantial private interest, risk of erroneous deprivation, minimal administrative burden to provide hearing	City: claimed legislative process sufficed or that deprivation need not be preceded by a hearing	Court: Mathews factors favor KTK; pre-deprivation notice/hearing required and were not provided
Whether the council act was legislative (no individual due process)	KTK: council’s vote was adjudicative/individualized and not general prospective legislation	City: council’s vote was legislative so procedural due process not implicated	Court: action was adjudicative/individualized, not legislative; City’s argument rejected

Grayden v. Rhodes, 345 F.3d 1225 (11th Cir. 2003) (three-part test for § 1983 procedural due process claim)
Greenbriar Vill., L.L.C. v. Mountain Brook, City, 345 F.3d 1258 (11th Cir. 2003) (uncertainty of permit-derived rights defeats protectable property interest)
Natale v. Town of Ridgefield, 170 F.3d 258 (2d Cir. 1999) (entitlement depends on whether issuing authority lacks discretion)
Mathews v. Eldridge, 424 U.S. 319 (1976) (balancing test for required pre-deprivation process)
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) (single decision by a municipality’s legislative body can be municipal policy for § 1983)
Zinermon v. Burch, 494 U.S. 113 (1990) (deprivation without adequate process violates due process)
Barnes v. Zaccari, 669 F.3d 1295 (11th Cir. 2012) (property-interest analysis and state-law source requirement)
75 Acres, LLC v. Miami-Dade County, Fla., 338 F.3d 1288 (11th Cir. 2003) (discussion of legislative vs. adjudicative action for due process)

Disposition: City’s summary judgment denied as to KTK’s procedural due process claims; KTK’s partial summary judgment granted on those claims.