ORDER
This action is before the Court on the Motion for Partial Summary Judgment (Doc. 58) filed by Plaintiff KTK Mining of Virginia, LLC (“KTK”) and the Motion for Summary Judgment (Doc. 57) filed by the Defendant City of Selma, Alabama (“the City”) along with the various briefs and exhibits (Doc. 59-61, 63-1, 67-73) in support of or opposition to same. The motions have been taken under submission (see Docs. 62, 78) and are ripe for adjudication. Upon consideration, and for the rea
I. Procedural History
On October 17, 2012, Plaintiffs KTK and Todd Kiscaden (“Kiscaden”) initiated this action by filing a Complaint (Doc. 1) with the Court, asserting causes of action against the City and its Chief of Police, William T. Riley (“Riley”), pursuant to 42 U.S.C. § 1983 (for alleged violations of their rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution) and state law. On March 19, 2013, Plaintiffs, with leave of the Court (Doc. 23), filed an Amended Complaint (Doc. 28), the operative pleading in this action.
Both the City and Riley filed a motion to dismiss all claims asserted in the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 29). Briefing was conducted on the motion to dismiss, after which the Magistrate Judge issued a Report and Recommendation on the motion. (Doc. 40). On July 2, 2013, the Court adopted in part the Report and Recommendation and dismissed all of Kiscaden’s claims, all claims against Riley, and some claims against the City. (Doc. 44). The Court expressly found that the following counts of the Amended Complaint were not dismissed and remained pending against the City: “Count One (First Amendment and procedural due process claim); Count Four (conversion as to personal property); Count Five (negligence and wantonness); Count Seven (permanent injunctive relief); and Count Eight (appeal of the suspension/revoeation of KTK’s building permit by the City of Selma).” (Id. at 2). KTK’s present motion requests partial summary judgment in its favor “for the relief demanded for the violation of [KTKj’s Fourteenth Amendment procedural due process claims under Count I and Count VIII of the [JFirst Amended Complaint.” (Doc. 58 at 1). Though the City has moved for summary judgment on all of KTK’s claims, the Court will presently only address the motion as it relates to KTK’s procedural due process claim.
“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Rule 56(c) governs procedures and provides as follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
Fed.R.Civ.P. 56(c).
A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc.,
If a non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323,
“ ‘Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed ... Nonetheless, cross-motions may be probative of the non-existence of a factual dispute when ... they demonstrate a basic agreement concerning what legal theories and material facts are dispositive.’ ” United States v. Oakley,
III. Facts
The Confederate Memorial Circle (“the Circle”) is a one-acre tract of land located in the City’s Old Live Oak Cemetery. The Circle was established in 1877 by a resolution of the Selma City Counsel granting a petition by members of the Ladies of the Confederate Memorial Association requesting a donation of one acre of ground located in that area upon which to erect a monument to the Confederate dead. In addition to hosting a Confederate memorial, the Circle serves as a burial place for 195 Confederate dead and is the site of a World War I memorial. A monument to Confederate General Nathan Bedford Forrest was added to the Circle in 2001 after the Selma City Council ordered that it be moved there from another location, where it had been erected in 2000 by an organization known as the Friends of Forrest (“FOF”). In March 2012, persons unknown vandalized the Forrest monument.
On August 2, 2012, KTK entered into a contract with Selma Chapter 53 of the United Daughters of the Confederacy (“UDC”), for the sum of $1.00 and other consideration, to perform construction work on the Circle for the purpose of making improvements. The UDC, along with the City, has taken part in the maintenance of the Circle for over 100 years. KTK estimates that, when completed, the work it planned to perform for the UDC would have a value of $163,200. KTK agreed to perform this work on a nonprofit basis, with all costs and expenses to be either borne by KTK or reimbursed by private contributions. On August 6, 2012, KTK entered into a contract with FOF to make improvements to the Circle and to relocate and secure the Forrest monument within the Circle. KTK estimates that, when completed, the work it planned to perform for FOF would have a value of $56,300. KTK also agreed to perform this work on a non-profit basis and to bear most costs and expenses, other than those which FOF members might wish to cover voluntarily.
On August 3, 2012, pursuant to City Ordinance No. 01-9091, the Selma Historic Development Commission issued UDC and FOF a Certificate of Appropriateness for the Circle refurbishing project. That same day, the required Certificate of Appropriateness having been first obtained (due to the fact that the planned work was taking place in a historic district), KTK was issued a building permit from the City’s Department of the Building Inspector to proceed with the project. KTK then began its work on the Circle.
On August 9, 2012, a protester, Rose Sanders a/k/a Faya Toure (“Toure”), entered the construction site and caused a disruption. On or about August 23, 2012, Toure and other protesters entered the construction site and attempted to halt KTK’s work by climbing on structures and lying down in areas where work was occurring. Later that day, KTK, the protestors, the City mayor, and the City Attorney agreed to cease all activity, including work and protests, in the Circle until after municipal elections were held on August 28, 2012. The next morning, the protesters returned to the Circle and caused further damage to the construction site.
The evening of August 28, 2012, after the polls had closed, KTK employees returned to the Circle to resume work but were prevented from doing so by Chief Riley, who threatened arrest if they did so.
The City Council held a meeting on September 25, 2012. At this meeting, Toure and other City citizens were permitted to address the City Council regarding the UDC’s purported license to use the Circle, asking that the Council revoke that license. At some point, one council member made “a motion ... to stop the Permit of building the Nathan Bedford Forrest Monument, and revoke the Permit.” (Minutes of 9/25/2012 City Council Meeting, Doc. 58^1 at 3). After further discussion, the following exchange occurred:
Councilman Atchison asked Council woman Crenshaw if her vote was to suspend any work until there is a Court Ruling [on the issue of the UDC’s license 'to use the Circle]? Councilwoman Crenshaw answered, and stated “yes.” Councilman Atchison stated that he would “second” that motion. Councilman Atchison stated that this is to suspend all work until a Court Ruling on the ownership. Councilwoman Crenshaw asked, do we want to use “ownership”? Councilwoman Crenshaw stated that they already know who owns the property. [City] Attorney Nunn stated that he does not think that their lawsuit is dealing with the ownership. Council'man Atchison stated that his “second” was based on ownership. Attorney Nunn stated that they do agree that we have our deed that shows ownership of the 18 acres, that maybe the motion should be to suspend until a Court Ruling as it relates to the use. President Pro Tempore Bowie asked Councilwoman Crenshaw if that was the motion she is making? Councilwoman Crenshaw answered, and stated “yes”. President Pro Tempore Bowie stated that he would “second” that motion. Councilwoman Keith asked what was the motion? President Pro Tempore Bowie asked Councilwoman Crenshaw to repeat the motion. Councilwoman Crenshaw stated the motion is to suspend the license until there is a ruling on the use/ ... ownership of the property; there will be no building at all, no work done, until the ruling is handed down. A roll call was taken and the motion passed with a majority vote of the Council Members present.
(Id.).
No item regarding KTK’s building permit was included on the meeting agenda, and there is no evidence that KTK was given notice that such an action might take place at the meeting. The City’s building inspector has never revoked the building permit or issued a stop-work order against KTK.
IV. Analysis
At the onset, neither this Order nor any other determination in this action will decide or even address whether the UDC has an ownership interest or license in, or any other right to make use of, the Circle. The UDC is not a party to this action, KTK does not assert that it has been granted any right to share in any alleged license
The Due Process Clause of the Fourteenth Amendment provides no state “shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus,435 U.S. 247 , 259,98 S.Ct. 1042 , 1050,55 L.Ed.2d 252 (1978). “In this circuit, a § 1983 claim alleging a denial of procedural due process requires proof of three elements: (1) a deprivation of a constitutionally-protected liberty or property interest; (2) state action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes,345 F.3d 1225 , 1232 (11th Cir.2003) (citing Cryder v. Oxendine,24 F.3d 175 , 177 (11th Cir.1994)).
Arrington v. Helms,
KTK argues there is no genuine issue of material fact that the City violated its procedural due process rights by depriving it of a constitutionally-protected property interest when it suspended/revoked the building permit issued to KTK for the Circle refurbishing project without giving KTK a chance to be heard prior to the decision and without providing a means to challenge it.
a. Deprivation of a Constitutionally Protected Property Interest
Under the first element of the Grayden test, [the Court] must consider whether [KTK] ha[s] shown not only a constitutionally-protected property interest, but also a governmental deprivation of that constitutionally-protected property interest. See Grayden,345 F.3d at 1232 (stating the plaintiff-tenants satisfied the first element of the Grayden test because they (1) enjoyed a constitutionally-protected property interest in continued residency at their apartments and (2) were deprived of that interest upon eviction). Property interests stem not from the Constitution, but from such sources as statutes, regulations, ordinances, and contracts. See Bd. of Regents of State Colls. v. Roth,408 U.S. 564 , 576-77,92 S.Ct. 2701 , 2708-09,33 L.Ed.2d 548 (1972). Whether these sources create a property interest must be decided by reference to state law. Id. at 577,92 S.Ct. at 2709 .
Arrington,
Conflicting arguments have been presented over whether the Selma City Council even has the authority to suspend or revoke a lawfully obtained building permit. KTK contends “that the vote of the City Council on September 25, 2013, was an ultra vires vote[,]” asserting that “[t]here is absolutely nothing by statute or ordinance which permits the Selma City Coun
In response, the City points to testimony by the chairman of the Selma Historic Development Commission stating that the City Council can override “its approval”— “approval” presumably including Certificates of Appropriateness, which are not at issue in this action, see n. 6. (Doc. 67 at 8). The City also cites to Ala.Code § 11-43-56 (“Except as otherwise provided in this title, the council shall have the management and control of the finances and all of the property, real and personal, belonging to the city or town.”) and § 11-45-1 (see infra).
To the extent both parties present witness testimony as evidence of what the City Council and other City officials can or cannot legally do, such testimony constitutes inadmissible legal conclusions that will not be considered. See Montgomery v. Aetna Cas. & Sur. Co.,
*1221 [municipal corporations may from time to time adopt ordinances and resolutions not inconsistent with the laws of the state to carry into effect or discharge the powers and duties conferred by the applicable provisions of this title and any other applicable provisions of law and to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of the inhabitants of the municipality, and may enforce obedience to such ordinances.
Ala.Code § 11-45-1. Moreover,
“Although municipalities exercise ‘such power ... as is conferred upon [them] by law,’ a municipality need not predicate its every action upon some specific express grant of power. .Alabama’s cities possess certain implied powers that derive from the nature of the powers expressly granted to them by the legislature.” Wilkins v. Dan Haggerty & Assocs., Inc.,672 So.2d 507 , 509 (Ala.1995). Indeed, “[i]t is elementary that, in addition to the powers expressly conferred on them by the legislature, municipal corporations have, by implication, all powers reasonably necessary to the carrying out of those powers expressly granted, and also, as incidental powers, all powers necessary for carrying out the corporate purposes.” City of Bessemer v. Birmingham Elec. Co.,248 Ala. 345 , 354,27 So.2d 565 , 573 (1946).
Peak v. City of Tuscaloosa,
“It is, without question, a settled rule of law in Alabama that:
“ ‘municipal ordinances are presumed to be valid and reasonable, to be within the scope of the powers granted municipalities to adopt such ordinances, and are not to be struck down unless they are clearly arbitrary and unreasonable.’ Cudd v. City of Homewood,284 Ala. 268 , 270,224 So.2d 625 (1969).”
Hall v. City of Tuscaloosa,421 So.2d 1244 , 1247 (Ala.1982). It is therefore axiomatic that “an ordinance enacted by a local governing body ‘is presumed reasonable and valid, and that the burden is on the one challenging the ordinance to clearly show its invalidity.’” Brown v. Board of Educ. of Montgomery,863 So.2d 73 , 75 (Ala.2003) (quoting Jefferson County v. Richards,805 So.2d 690 , 706 (Ala.2001)).
St. Clair Cnty. Home Builders Ass’n v. City of Pell City,
The Alabama Court of Civil Appeals recently stated that a “[c]ity is required to follow the procedures set out in its own ordinances.” Bd. of Zoning Adjustment of City of Trussville v. Tacala, Inc., — So.3d -, -, No. 2120132,
The City does contest whether KTK has a constitutionally protected property interest in the building permit. “[N]o procedural due process claim exists until a sufficiently certain property right under state law is first shown.” Greenbriar,
Before a plaintiff seeks to prove that a state official’s denial of a permit deprived him of a property right in the permit in violation of the standards of substantive due process ... he must first establish that he has a federally protectable property right in the permit. This requires a demonstration that [at the time of the municipality’s alleged due process violation,] he had a clear entitlement to the permit under state law.
Greenbriar,
As to “clear entitlement,” “[t]he determining factor ... may be whether the permit-issuing government authority lacks discretion to deny the permit on which the plaintiff bases his property right. [Natale, 170 F.3d] at 263 (“[Entitlement turns on whether the issuing authority lacks discretion to deny the permit, i.e., is required to issue it upon ascertainment that certain objectively ascertainable criteria have been met”); see also Crown Point I, L.L.C. v. Intermountain Rural Elec. Ass’n,
The Eleventh Circuit set out the basis for the landowner’s asserted property interest in Greenbriar as follows:
Both Greenbriar and the district court focused on the City code-specifically, the code’s gaps and the City’s subsequent gap-repair efforts-to support the existence of Greenbriar’s estoppel-based property right. See Greenbriar Village [ L.L.C. v. City of Mountain Brook], 202 F.Supp.2d [1279,] 1290 [ (N.D.Ala.2002) ] (finding that Greenbriar’s “property rights under applicable Alabama law rests in the doctrine' of equitable estoppel”); id. at 1291-92 (finding that Greenbriar made expenditures in reliance on the City’s land-disturbance permit and that Greenbriar did not obtain the permit in bad faith). There is no dispute that Greenbriar exploited an admitted gap in the City’s code, ultimately obtaining from the district court a de facto commercial zoning change merely because the City was lax in maintaining a gap in its code, and, later, a little too tricky in notifying Greenbriar of its legislative efforts to eliminate it by sending notice to a Greenbriar principal, rather than to Greenbriar at its corporate address.
Greenbriar thus advanced a property right derived from: (1) the City’s error in creating a gap in its code; (2) the City’s failure to timely halt Greenbriar’s exploitation of it; (3) Greenbriar’s gamble (by engaging in commercial-scale clearing of residentiary zoned land) that it one day would successfully pressure the City to rezone the subject land to its*1224 liking; (4) Greenbriar’s exploitation of an open-ended (time-wise) land-disturbance permit to artificially create “detrimental reliance” on a future-but-not-guaranteed commercial rezoning; and (5) the City’s legally inartful efforts to repair the gap (efforts which led to this § 1983 action and the lower court’s permanent injunction). All of that occurred on a land-disturbance permit that was so open-ended that Greenbriar itself conceded that courts should simply fill in its gaps (that the Permit was valid for “a reasonable time”). See id. at 1298. Greenbriar therefore, at most, held an uncertain property right when the City violated its zoning-notice procedures. It was not “certain” until after the alleged due process deprivation occurred. Indeed, the “by-estoppel” property right was not even recognized until the district court announced it, and even at that on legal grounds different from those Greenbriar itself proffered. See id. at 1290. (“Although Greenbriar also asserts that its property rights spring from the issuance to it of a [state pollution-discharge] Permit and because of its inherent ‘bundle of property rights,’ ... this court finds that the most solid basis for Greenbriar’s vested property rights under applicable Alabama state law rests in the doctrine of equitable estoppel.”). Further, Greenbriar relied on land use procedures to derive its property right.
Id. at 1265 (footnote omitted).
The Eleventh Circuit ultimately concluded in Greenbriar that the landowner “lacked a federally protectable property interest^]” as its “ ‘entitlement to the permití ] sought turned ultimately on the resolution of the parties’ [ ] law dispute as to whether [Greenbriar] had ... rights.’ Natale,
Greenbriar appears to be consistent with a more recent statement by the Eleventh Circuit regarding what constitutes a constitutionally protected property interest for purposes of procedural due process:
“[Property interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, property denotes a broad range of interests that are secured by existing rules or understandings.” Perry v. Sindermann,408 U.S. 593 , 601,92 S.Ct. 2694 , 2699,33 L.Ed.2d 570 (1972) (citation omitted) (internal quotation marks omitted). An individual can have a protected property interest in a government benefit when he has “a legitimate claim of entitlement to it.” Bd. of Regents of State Colls. v. Roth,408 U.S. 564 , 577,92 S.Ct. 2701 , 2709,33 L.Ed.2d 548 (1972). The claim of entitlement must come from an independent source. Id. (“Property interests ... are not created by the Constitution ... [but] by existing rules or understandings that stem from an independent source.... ”); Sindermann,408 U.S. at 602 n. 7,92 S.Ct. at 2700 n. 7. The independent source can be a statute, see Goss v. Lopez,419 U.S. 565 , 572-73,95 S.Ct. 729 , 735,42 L.Ed.2d 725 (1975); a regulation, see Glenn v. Newman,614 F.2d 467 , 471-72 (5th Cir.1980), overruled on other grounds, Monroe Cnty., Fla. v. U.S. Dep’t of Labor,690 F.2d 1359 (11th Cir.1982); an express or implied contract, see Sindermann,408 U.S. at 601-02 ,92 S.Ct. at 2699-2700 ; or a mutually explicit understanding. Id. at 602-03,92 S.Ct. at 2700 .
“The hallmark of property ... is an individual entitlement grounded in state law, which cannot be removed except ‘for cause.’ ” Logan v. Zimmerman*1225 Brush Co.,455 U.S. 422 , 430,102 S.Ct. 1148 , 1155,71 L.Ed.2d 265 (1982); see Barry v. Barchi,443 U.S. 55 , 65,99 S.Ct. 2642 , 2649,61 L.Ed.2d 365 (1979); Memphis Light, Gas & Water Div. v. Craft,436 U.S. 1 , 9,98 S.Ct. 1554 , 1560,56 L.Ed.2d 30 (1978); Glenn,614 F.2d at 471 . The independent source need not use the phrase “for cause” so long as the parties understood their agreement would have that effect. See Peterson v. Atlanta Hous. Auth.,998 F.2d 904 , 914 (11th Cir.1993).
Barnes v. Zaccari,
As adopted by City Ordinance No. 02-9899, Section 104 of the “Standard Building Code — 1997 Edition” sets forth the standards and procedures for the building official to issue permits. (Id. at 6-9). Section 104.1.3 states that “[a] building ... permit shall carry with it the right to construct or install the work ...” (Id. at 6). Thus, the City’s ordinance creates a “right to construct or install [ ]work” upon the issuance of a building permit. Moreover, section 104.4.2 states that “[i]f the building official is satisfied that the work described in an application for a permit and the contract documents field therewith conform to the requirements of the technical codes and other pertinent laws and ordinances, he shall issue a permit to the applieant.” (Id. at 8 (emphasis added)). Thus, “the permit-issuing government authority” — i.e. the Building Inspector— “lacks discretion to deny the permit” so long as an applicant properly requests one. Greenbriar,
As to KTK’s building permit, the City makes the conclusory assertion that KTK’s “rights at issue were not clear at the time of the issuance of the permit, and even today have not been resolved.” (Doc. 67 at 7). As Greenbriar and Natale make clear, “uncertainty” as to a party’s rights under a land-use permit is a key consideration in determining whether a “constitutionally-protected property interest” arises from the permit. However, the “uncertainty” to which the City refers appears to be that surrounding the ownership of and right to use the Circle, rather than any “uncertainty” as to KTK’s right to be issued a building permit under the applicable laws.
KTK has presented undisputed evidence indicating that it was duly issued the building permit by the City’s Department of the Building Inspector after complying with applicable City ordinances, for the stated purpose of “rebuilding N B Forrest monument.” (Doc. 58-3 at 11, Building Permit). The City has offered no evidence or argument that the building permit was improperly issued or that KTK was not otherwise
b. State action
No party disputes that “municipalities may ... be held liable for the execution of a governmental policy or custom.” Scala v. City of Winter Park,
c. Constitutionally adequate process
The Due Process Clause requires, at a minimum, “notice and the opportunity to be heard incident to the deprivation of life, liberty or property at the hands of the government.” Grayden v. Rhodes,345 F.3d 1225 , 1232 (11th Cir.2003). The lack of a meaningful opportunity to be heard is at the core of a due process claim because “the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property" is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch,494 U.S. 113 , 125,110 S.Ct. 975 , 983,108 L.Ed.2d 100 (1990) (emphasis in original) (quoting Parratt v. Taylor,451 U.S. 527 , 537,101 S.Ct. 1908 , 1913,68 L.Ed.2d 420 (1981)).
“Although the Due Process Clause generally requires notice and an opportunity to be heard before the government seizes one’s property ... the Supreme Court ‘has rejected the proposition that ... the State [must always] provide a hearing prior to the initial deprivation of property.’ ” Reams v. Irvin,561 F.3d 1258 , 1263 (11th Cir.2009) (emphasis in original) (internal citation omitted) (quoting Parratt,451 U.S. at 540-41 ,101 S.Ct. at 1915-16 ); see also Hudson v. Palmer,468 U.S. 517 ,104 S.Ct. 3194 ,82 L.Ed.2d 393 (1984).*1227 “[T]he feasibility of predeprivation procedures [i]s the central question in determining [whether predeprivation procedures must be provided].” Rittenhouse v. DeKalb Cnty.,764 F.2d 1451 , 1455 (11th Cir.1985); see also Carcamo v. Miami-Dade Cnty.,375 F.3d 1104 , 1105 n. 4 (11th Cir.2004). So long as the State provides adequate post-deprivation remedies, “due process d[oes] not require pre-deprivation hearings where the holding of such a hearing would be impracticable, that is, where the deprivation is the result of either a negligent or an intentional deprivation of property.” McKinney v. Pate,20 F.3d 1550 , 1562-63 (11th Cir.1994) (en banc).
Pre-deprivation process is impractical “where a loss of property is occasioned by a random, unauthorized act by a state employee, rather than by an established state procedure,” because “the state cannot know when such deprivations will occur.” Hudson,468 U.S. at 532, 533 ,104 S.Ct. at 3203 . These “established state procedure[s]” are typically established for the purpose of depriving citizens of their property. Rittenhouse,764 F.2d at 1455 ...
Nat’l Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga.,
In Count 8 of its Amended Complaint, KTK alleged:
The minutes of the September 25, 2012, City Council meeting show that the suspension/revocation of the building permit was intended to be a final action of the City Council “until a Court ruling has been made as it relates to the use/ownership of the [Confederate Circle] property”. Therefore, KTK has been left with no administrative remedy and the City has deferred to judicial action to resolve this controversy ...
(Doc. 28 at 13, ¶ H).
The City did not address the element of constitutionally adequate process in its response to KTK’s motion for summary judgment, finding it “need not be reached” due to its belief that KTK could not establish other elements.
*1229 Before determining if post-deprivation procedures can provide adequate process, a court must apply the balancing test articulated in Mathews v. Eldridge,424 U.S. 319 ,96 S.Ct. 893 ,47 L.Ed.2d 18 [ (1976) ], to determine whether pre-deprivation process was required ... Grayden,345 F.3d at 1232-33 ; see also Bailey v. Bd. of County Com’rs of Alachua County, Fla.,956 F.2d 1112 , 1123 n. 12 (11th Cir.1992) (“The need for some form of predeprivation hearing is determined from balancing the competing interests at stake.”). Under Mathews, the specific dictates of due process in any given case are determined by considering: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, “including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”424 U.S. at 335 ,96 S.Ct. at 903 .
Reams v. Irvin,
The Court finds that pre-deprivation process in this case was not “impractical,” as the deprivation was not “occasioned by a random, unauthorized act by a state employee,” but rather “by an established state procedure[,]” Nat’l Ass’n of Boards of Pharmacy,
The record indicates that, in suspending/revoking KTK’s permit without notice,
Therefore, the Court finds no genuine issue of material fact that, in order to satisfy due process, the City was required to provided KTK notice and the opportunity to be heard prior to the City Council’s suspension/revocation of its permit and that it was in fact provided neither.
V. Conclusion
In accordance with the foregoing analysis, it is ORDERED that the City’s Motion for Summary Judgment (Doc. 57) is DENIED as to KTK’s procedural due process claims only and that KTK’s Motion for
Notes
. KTK has also submitted supplemental authority by which it argues the Court should also sua sponte grant it summary judgment as to its First Amendment claims. (Doc. 77). The Court will not address that issue in this Order.
. The Court denied as untimely the Plaintiffs request to file a second amended complaint. (Doc. 36).
. The Court finds that it has original jurisdiction over the Plaintiffs' federal claims pursuant to 28 U.S.C §§ 1331 (federal question) and 1343(a)(3), see Gonzalez-Cancel v. Partido Nuevo Progresista,
The Court also finds that it has diversity jurisdiction over all claims pursuant to 28 U.S.C. § 1332. Both Plaintiffs are alleged to be citizens of Tennessee (Kiscaden is alleged to be the sole member of KTK, a limited liability company), while both Defendants are alleged to be Alabama citizens. Sufficient facts have also been pled to establish that the amount in controversy exceeds $75,000, exclusive of interests and costs.
. The Court notes that, under Alabama law, "a license is by its very nature personal; and, being a personal right, it is not an interest which attaches to or runs with the land, nor can it be assigned, conveyed or inherited. Neither can it ripen into an easement by prescription, however long continued.” Weh
. In its Reply, KTK objects to any application of the procedural due process analysis in Grayden v. Rhodes, arguing that 1) Grayden was "superceded by” Greenbriar Village v. Mountain Brook, City,
KTK’s first argument in this regard is inconsistent with well-established Eleventh Circuit precedent. Grayden was issued September 17, 2003, while Greenbriar was issued a day later, on September 18, 2003. Both opinions were issued by 3-judge panels. Therefore, to any extent the opinions may conflict (and the Court is not suggesting that they do), the later-issued Greenbriar could not have "superceded” Grayden. See, e.g., McGinley v. Houston,
KTK’s second argument is also without merit. "Under the law of the case, doctrine, an issue decided at one stage of a case is binding at later stages of the same .case. Notably, however, a court’s previous rulings may be reconsidered as long as the case remains within the jurisdiction of the district court. Consequently, law of the case applies only where there has been a final judgment.” Aldana v. Del Monte Fresh Produce N.A., Inc.,
. KTK also appears to assert that it is due constitutionally adequate process as to any revocation of the Certificate of Appropriateness issued by the Historic Commission. However, the Certificate of Appropriateness reflects that it was issued to the UDC and the FOF (Doc. 58-3 at 2), not KTK. KTK does not assert otherwise in its briefing (see, e.g., Doc. 60 at 7-8 ("Prior to August 3, 2012, the Selma Chapter 53, UDC, and FOF, submitted to the Selma Historic Development Commission an application and request for a Certificate of Appropriateness ... On August 3, 2012, the Selma Historic Development Commission issued a Certificate of Appropriateness to both UDC and FOF ... ”) and does not attempt to explain how it would have a constitutionally protected property interest in a certificate that was not issued to it.
. Cf. Picard v. Members of Employee Ret. Bd. of Providence,
KTK has not alleged that the City has made any efforts to enforce its ordinance/resolution/motion since enacting it, likely because KTK does not appear to have attempted to resume work on the Circle since then.
. The City Council appears to have suspended/revoked KTK’s license pursuant to a vote on a motion. Alabama case law has distinguished between a city council’s "motion” or "resolution” and its "ordinances.” See Rushing,
. Though recognizing that "Natale's rationale traveled on a substantive due process claim,” the Eleventh Circuit "conclude[d] that it is appropriately applied to the procedural due process claim advanced” in Greenbriar, “as [it] s[aw] no supportable distinction directing [it] otherwise. The common and key thread to [Greenbriar and Natale wa]s the uncertainty of the property right, thus rendering it unprotectable under established federal due process doctrine.” Greenbriar,
. The City cites to Marine One, Inc. v. Manatee Cnty.,
. The Alabama Supreme Court has held that, "[w]here a building permit is issued in violation of [a] zoning ordinance, it is invalid, and the permittee acquires no vested rights thereunder and this although the permittee has incurred expense in connection therewith and in reliance thereon. And one to whom a building permit has been illegally issued cannot successfully invoke the doctrine of estoppel so as to preclude the municipality from revoking the permit, notwithstanding the fact that the permittee may have acted in good faith and may have expended money or incurred obligation in reliance upon the permit.” Bd.. of Zoning Adjustment for City of Lanett v. Boykin,
. In its brief in support of its own motion for summary judgment, the City conclusively asserts that "the City Council’s action in suspending the construction and permit was a legislative act, and the legislative process surrounding that act provided [KTK] 'with all the process constitutionally due.’ 75 Acres, LLC v. Miami-Dade County, Fla.,
The Supreme Court's statements in Londoner [v. City & County of Denver,210 U.S. 373 ,28 S.Ct. 708 ,52 L.Ed. 1103 (1908)] and Bi-Metallic [Investment Co. v. State Board of Equalization,239 U.S. 441 ,36 S.Ct. 141 ,60 L.Ed. 372 (1915)] years ago have served as the foundation for a strikingly uniform approach to procedural due process. Under that approach, if government action is viewed as legislative in nature, property owners generally are not entitled to procedural due process. Or, as one set of commentators has summarized, "When the legislature passes a law which affects a general class of persons, those persons have all received procedural due process-the legislative process. The challenges to such laws must be based on their substantive compatibility with constitutional guarantees.” Ronald E. Rotunda & John E. Nowak, Treatise on Constitutional Law § 17.8 (3d ed. 1999). By contrast, if government conduct is viewed as adjudicative in nature, property owners may be entitled to procedural due process above and beyond that which already has been provided by the legislative process. When an adjudicative act deprives an individual of a constitutionally-protected interest, procedural due process is implicated ...
"[T]he line between legislation and adjudication is not always easy to draw.” LC & S, Inc. v. Warren County Area Plan Comm’n,244 F.3d 601 , 603 (7th Cir.2001). In our attempts to draw that line, we will not capitulate to the label that a government*1228 body places on its action. Coniston Corp. v. Vill. of Hoffman Estates,844 F.2d 461 , 468 (7th Cir.1988) (“It is not labels that determine whether action is legislative or adjudicative.”). Although this circuit has not articulated a test for distinguishing between legislative and adjudicative action, two federal courts of appeals have done so. The Second Circuit focuses on the function performed by the decisionmaker to make the determination. Thomas v. City of New York,143 F.3d 31 , 36 n. 7 (2d Cir.1998). By contrast, the Seventh Circuit focuses on the generality and prospectivity of government action to decide whether a government action is legislative in nature. LC & S,244 F.3d at 604 (“Not the motive or stimulus, but the generality and consequences, of an enactment determine whether it is really legislation or really something else.”) ...
[T]he legislative process surrounding the enactment of [a law] provide[s] [a plaintiff] with all the process constitutionally due. Rogin v. Bensalem Township,616 F.2d 680 , 693-94 (3rd Cir.1980) (“To provide every person affected by legislation the various rights encompassed by procedural due process ... would be inconsistent with the structure of our system of government.... [T]he general theory of republican government is not due process through individual hearings and the application of standards of behavior, but through elective representation, partisan politics, and the ultimate sovereignty of the people to vote out of office those legislators who are unfaithful to the public will.”); LC & S,244 F.3d at 602-03 ("Legislation is prospective in effect and, more important, general in its application____The right to notice and a hearing, the essence of [our modem concept of due process of law], are substitutes for the prospectivity and generality that protect citizens from oppression by legislators and thus from the potential tyranny of electoral majorities.”).
75 Acres, LLC v. Miami-Dade Cnty., Fla.,
The City provides no analysis under any of the tests articulated in 75 Acres, LLC to support its argument that the suspension/revocation of KTK's building permit was a legislative act. Certainly, the City cannot reasonably argue that the City Council’s vote to suspend/revoke KTK’s building permit, or even to halt all work on the Circle, was either a general or prospective act. See Beaulieu v. Ala. Onsite Wastewater Bd., No. 2:08-CV-432-MEF,
Accordingly, the Court rejects the City's argument that its actions constitute a legislative act.
. In an unpublished opinion, the Ninth Circuit held that "[w]hen a zoning board decides
. Though KTK executed its contract with the UDC on August 2, 2012, the day before the building permit was issued, KTK executed its contract with FOF on August 6, 2012.
. Cf. Holman v. City of Warrenton,