Plaintiff, Steve Windham, had sought to construct an automatic car wash on a Center, Texas, property zoned C-1 Commercial. A special use permit was required to operate a car wash in a C-1 district. Windham’s application for a special use permit was initially approved by the Planning and Zoning Commission, but later denied by the City Council.
Windham filed a claim under 42 U.S.C. § 1322 claiming his rights to equal protection and due process had been violated by the Council’s denial. He argued that the City had subsequently approved a car wash on the same street sought by another party, and claimed that his application had been personally opposed by City Planning And Zoning Commission Member Lee Lunsford, who owned property adjacent to the proposed car wash. While Lunsford recused herself from voting on Windham’s application, Windham alleged that she and her husband argued against his application, convincing the City Council to deny the application. Windham further alleged that there had been only one previous application approved by the Planning and Zoning Commission which was subsequently denied. Further, Windham alleged that the only difference between the car wash approved elsewhere on his street and his proposed car wash was proximity to Lunsford’s property.
Defendants, the City and several individual officials, filed a motion to dismiss under Fed. R.Civ.P. 12 (b)(6) for failure to state a claim. The City argued that Windham had failed to allege facts sufficient to show municipal liability and that Windham had failed to specify whether he sought to bring his conspiracy claim under 42 U.S.C. § 1322 or Texas common law.
The court agreed that Windham had failed to allege facts showing the participation of several City officials named in the action, dismissing those individuals from the case. Further, the Court held that the remaining defendants were entitled to qualified immunity, that Windham had failed to meet the burden necessary to defeat qualified immunity, and that he had failed to respond to defendant’s motion to dismiss in which the assertion of qualified immunity was made. The Court held that Windham’s allegations were conclusory and insufficient to avoid dismissal on their own. For those reasons, the court granted the motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12 (b)(6).
Windham v. City of Center, Tex., 2012 WL 2526945 (E.D. Texas 6/1/12)