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Lamartina v. City of New Melle

United States District Court, E.D. Missouri, Eastern Division

December 22, 2014

CITY OF NEW MELLE, MO, et al., Defendants.


RONNIE L. WHITE, District Judge.

This matter is before the Court on Defendants' Motion for Summary Judgment (ECF No. 26) and Plaintiff's Motion for Summary Judgment (ECF No. 29). The motions are fully briefed and ready for disposition. Upon consideration of the motions and related memoranda, the Court will grant the Defendants' Motion for Summary Judgment, in part, and deny the Plaintiff's Motion for Summary Judgment. For the reasons set forth below, the Court will also dismiss without prejudice those claims that are not ripe for review.


Plaintiff Mark A. Lamartina, Jr. was the owner and operator of New Melle Gun & Pawn ("Gun Shop"), a retail establishment for the sale, repair, and maintenance of firearms. (Compl. ¶ 9, ECF No. 1) Plaintiff Lamartina also trained the general public on firearm use and held training classes for persons interested in obtaining and maintaining a carrying concealed weapons ("CCW") license from the State of Missouri. (Compl. ¶ 9, ECF No. 1) The CCW classes included discharging firearms in an open barn. (Defs.' Statement of Uncontroverted Material Facts ("SUMF") ¶¶ 11, 15-16, 29, ECF No. 27) Plaintiff purchased the business from the former owner, Jill McClelland, in July of 2011, and he purchased the land upon which the Gun Shop was located ("Property") in 2012. (Compl. ¶¶ 8, 11, ECF No. 1)

According to Plaintiff Lamartina, a zoning ordinance passed in 2005 classified the Property under the C-1 zoning district, "retail trade not elsewhere listed", and was defined as a conditional use. ( Id. at ¶¶ 12-17, ECF No. 1) Plaintiff contends that the prior owner operated the business of retail sale, repair, and maintenance of firearms, as well as training on firearm use open to the general public on the property, which included the discharge of firearms. ( Id. at ¶ 18) Plaintiff continued to operate the business in the same manner, and he asserts that the new ordinance transformed the conditional use into a conforming use. ( Id. at ¶¶ 19-22) While Jill McClelland allowed test firing and some instruction, she never had groups of 20 people at a time firing pursuant to a CCW class. (Defs.' SUMF ¶¶ 22, 44, ECF No. 27) Plaintiff maintains that the Defendant City and Defendant City employees knew he intended to hold CCW classes on the Property, which classes commenced on October 8, 2011. ( Id. at ¶ 23) However, Defendants later notified Plaintiff of a City Municipal Code that prohibited the discharge of firearms within the City limits. ( Id. at ¶ 24) Pursuant to meetings between the City Board of Aldermen and Plaintiff's father, Mark Lamartina, Sr., the City amended the code to allow Plaintiff and his business to continue its activities, including the discharge of firearms. ( Id. at ¶¶ 25-26)

In August of 2012, Plaintiff was offered another property outside the New Melle city limits to purchase and open an indoor firing range with a commercial sales area, in addition to a classroom to conduct CCW courses. ( Id. at ¶ 27) Plaintiff claims, however, that he withdrew from the contract after the Mayor persuaded him to remain in the City of New Melle. ( Id. ) In late 2012 or early 2013, the City informed Plaintiff Lamartina that it had reinterpreted the zoning ordinance and told Plaintiff and the Gun Shop to request a conditional use permit to conduct CCW classes. ( Id. at ¶ 28) The classes were held in a different location, with the firearms portion of the CCW classes conducted in the barn on the Property. (Defs.' SUMF ¶¶ 33-37, ECF No. 27) Plaintiff filed a conditional use permit application and appeared at hearing before the Planning and Zoning Commission, during which time the City's attorney made a public statement indicating that Plaintiff and the Gun Shop did not need a conditional use permit to continue operating the business. (Compl. ¶ 29, ECF No. 1) Plaintiff Lamartina subsequently withdrew his conditional use permit application. ( Id. at ¶ 30) However, after an election and change of the composition of the Board of Aldermen, the board determined that Plaintiff must apply for a conditional use permit in order to conduct the CCW classes. ( Id. at ¶ 29) Persons opposed to granting a conditional use permit expressed concerns over noise and possible stray bullets. (Defs.' SUMF ¶ 56, ECF No. 27)

On March 29, 2013, the City of New Melle issued a "Notice of Violations Cease and Desist Order" demanding that Plaintiff cease all CCW classes, which included discharging firearms, held on the Property until Plaintiff Lamartina obtained a conditional use permit. (Compl. ¶ 31, ECF No. 1) Plaintiff appealed but was notified that the cease and desist order was not appealable to the Board of Adjustment because it was not an administrative order. ( Id. at ¶ 34) Plaintiff Lamartina also filed a Petition for Declaratory Judgment, Injunction and Temporary Restraining Order in the Circuit Court of St. Charles County but voluntarily dismissed the action. (Defs.' SUMF ¶¶ 80-85, ECF No. 27) Plaintiff claims that he purchased the Property based on the City's representations and has since closed his business due to diminished sales at the Gun Shop. (Compl. ¶¶ 39-40, ECF No. 1)

On July 26, 2013, Plaintiff Lamartina filed a Complaint in federal court against the City of New Melle, Missouri; Don Hendrich, the New Melle Mayor; and current and former members of the New Melle Board of Aldermen, William Pollihan, Doug Bice, Darla Green, Chad Troup, Gary Schneider, and Nik Bradley. Count I asserts a claim under 42 U.S.C. § 1983, that Defendants violated his substantive and procedural due process rights under the Fifth and Fourteenth Amendments. Plaintiff claims a Fifth Amendment Violation under the Takings Clause in Count II. In Counts III and IV, Plaintiff alleges state law claims: a violation of Article I, § 26 of the Missouri Constitution, Takings Clause, and a violation of the Missouri Sunshine Law, Mo. Rev. Stat. § 610. The Defendants and the Plaintiff have filed cross motions for summary judgment in this matter.

Legal Standards

Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment only if all of the information before the court show "there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must view the evidence and all reasonable inferences in the light most favorable to the non-moving party. Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 775 (8th Cir. 1995). The moving party has the initial burden to establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once this burden is discharged, if the record does in fact bear out that no genuine dispute exists, the burden then shifts to the non-moving party, who must set forth affirmative evidence and specific facts showing there is a genuine dispute on that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In fact, the non-moving party must present sufficient evidence favoring the non-moving party which would enable a jury to return a verdict for that party. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 324. Self-serving, conclusory, statements, standing alone, are insufficient to defeat a well-supported motion for summary judgment. O'Bryan v. KTIV Television, 64 F.3d 1188, 1191 (8th Cir. 1995).

"Under Federal Rule of Civil Procedure 12(b)(l), a party is permitted to challenge a federal court's jurisdiction over the subject matter of the complaint." Archdiocese of St. Louis v. Sebelius, 920 F.Supp.2d 1018, 1023 (E.D. Mo. 2013) (citation omitted). The party that invokes federal jurisdiction has the burden of establishing that the court has subject matter jurisdiction to grant the relief requested. Id. (citation omitted). Further, when a party challenges a federal court's subject matter jurisdiction based on the factual truthfulness of the assertions, the court may consider matters outside the pleadings, including testimony and affidavits. Id. (citation and internal quotation omitted).


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