Opinion
CIVIL ACTION No. 03-2041-CM
October 2, 2003
MEMORANDUM AND ORDER
On January 24, 2003, plaintiff's filed a Verified Petition and Motion for Restraining Order against defendant City of Shawnee (the City) in Johnson County District Court seeking, among other things, an order enjoining the City from enforcing certain municipal ordinances (the Ordinances) pertaining to deed restrictions governing the SaddleBrooke subdivision. On that same date, the Honorable Thomas E. Foster issued a Restraining Order enjoining the City from enforcing the Ordinances as to the deed restrictions. The City thereafter removed the case to federal court, whereupon this court issued a Temporary Restraining Order (Doc. 14) enjoining the City from enforcing the Ordinances. On April 1, 2003, this court held a hearing on plaintiff's Motion for Preliminary Injunction (Doc. 4). On May 22, 2003, the court issued an order (Doc. 31) (the May 2003 Order) granting plaintiff's motion for preliminary injunction. The court subsequently amended the May 2003 Order (Doc. 41). This matter is before the court on plaintiff's' Motion for Summary Judgment (Doc. 32) and defendant's Cross Motion for Summary Judgment (Doc. 46).
The parties at that time referred to Shawnee Municipal Ordinance Nos. 2625 and 2655 collectively as "the Ordinances."
I. Permanent Injunction
Summary judgment is appropriate only when there is no genuine issue of material fact so that a reviewing court can resolve the issues presented as a matter of law. Carey v. United States Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). Upon careful review of the briefs and arguments of the parties, the court concludes that plaintiff's are entitled as a matter of law to a permanent injunction.
The legal analysis which the court must conduct in determining whether to issue a permanent injunction is virtually identical to the analysis involved in the preliminary injunction context, Sierra Club v. Hennessy, 695 F.2d 643, 647 (2d Cir. 1982), with the exception being that the plaintiff must show actual success on the merits for a permanent injunction to issue, rather there a mere likelihood of success. That is, a party seeking a permanent injunction bears the burden of showing: (1) actual success on the merits; (2) irreparable harm unless the injunction is issued; (3) the threatened injury outweighs the harm that the injunction may cause the opposing party; and (4) the injunction, if issued, will not adversely affect the public interest. Fed. Lands Legal Consortium ex rel. Robart Estate v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999).
Foremost, the court points out that it has conducted no further hearings, nor have the parties submitted additional evidence, since the April 1, 2003, hearing. As such, the arguments and evidence before the court on plaintiff's motion for preliminary injunction are essentially the same as those put forth in the parties' respective summary judgment motions at issue here. The court is satisfied that the legal conclusions and reasoning set forth in the May 2003 Order are correct. See Mease v. City of Shawnee, 266 F. Supp.2d 1270 (D. Kan. 2003). Thus, to the extent applicable, the court hereby adopts and incorporates into this order the findings of fact and conclusions of law set forth in the May 2003 Order.
Briefly, the court concludes that plaintiff's have established success on the merits. In the May 2003 Order, the court discussed at length whether Ordinance 2655(b) operates as an impairment on the plaintiff's' constitutional right to contract with the developer of Saddle Brooke. For the reasons set forth in the May 2003 Order, the court concludes that Ordinance 2655(b) in fact impairs plaintiff's' constitutional right to contract. The court further holds that, even if the purpose behind passing Ordinance 2655(b) is considered legitimate, Ordinance 2655(b), as retroactively applied, goes too far and is, therefore, neither reasonable nor appropriate to the City's stated goals. Therefore, because Ordinance 2655(b) is all-encompassing, and affects conduct that cannot be justified by the City's stated purpose, the intrusion on plaintiffs' right to contract is unconstitutional.
Moreover, the court holds that plaintiff's have established irreparable harm should the city be permitted to enforce Ordinance 2655(b). As explained more fully in the May 2003 Order, plaintiff's' property values would diminish upon the construction of homes with asphalt roofs. The court further concludes that the injury plaintiff's would suffer-diminished property values-outweighs any potential harm to the city should the court issue a permanent injunction. Finally, for the reasons stated in the May 2003 Order, the court concludes that the issuance of a permanent injunction would not be harmful to the public interest. The court therefore declares Ordinance 2655(b) unconstitutional and permanently enjoins the City from its enforcement.
II. Attorneys' Fees
Plaintiff's also seek attorneys' fees and costs pursuant to 42 U.S.C. § 1988. The right of a party not to have a State, or a political subdivision thereof, impair its obligations of contract is a right secured by the first article of the United States Constitution. A deprivation of that right may therefore give rise to a cause of action under § 1983. Moreover, a prevailing party in a § 1983 action is eligible for an award of attorneys' fees under § 1988. See 42 U.S.C. § 1988(b).
In this case, plaintiff's specifically pled their contracts clause claim pursuant to 42 U.S.C. § 1983. The court has concluded that the City's passage of Ordinance 2655(b) was in violation of plaintiffs' constitutional right to contract and has permanently enjoined the City from enforcing Ordinance 2655(b). As such, plaintiff's have succeeded in obtaining the relief they sought and are therefore entitled to attorneys' fees pursuant to § 1988. To obtain attorneys' fees expended in accordance with this order, plaintiff's shall submit an accounting to the court.
IT IS THEREFORE ORDERED that plaintiffs' Motion for Summary Judgment (Doc. 32) is granted, and defendant's Cross Motion for Summary Judgment (Doc. 46) is denied.
IT IS FURTHER ORDERED that the City is permanently enjoined from enforcing Ordinance 2655, subsection (b).
IT IS FURTHER ORDERED that plaintiff's shall submit to the court an itemized accounting of attorneys' fees allegedly due and owing within 30 days of entry of this order.