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Federal judge grants motion to dismiss suit

 

Allows developer to amend suit against city, city officials, leaving door open to move suit forward.

 

Roger Pugh
Publisher

Federal Judge Stephen P. Friot last week granted the City of Piedmont and several current and former city officials’ motion to dismiss a lawsuit filed against them by a local developer, but the judge left the door open for the law suit to move forward.

Cindy Boevers and Reta Stubhar filed a lawsuit against the City of Piedmont along with former city councilman Charles Coffman, and current councilmen Al Gleichmann and Donnie Robinson. Planning commissioners Eric Berger and Ron Cardwell were also named in the suit which alleges the defendants violated their equal protection and due process.

The complaint contends plaintiffs Boevers and Strubhar are developing the 80.82 acre Magnolia Meadows in Piedmont. They contend they met all of the state and local requirements and obtained an approval recommendation from the city staff.

They allege that on Aug. 25, 2014 when the plat was before the city council for approval, Coffman, Gleichmann and Robinson “abruptly, and without permission excused themselves from the assembly, claiming a conflict of interest.”

The suit says that action destroyed the quorum required for the council to conduct business. The plaintiffs maintain the councilmen should have abstained from voting if a conflict of interest existed.

They argue that the City Charter says an abstention does not count as a negative vote and does not count in determining if a measure passes or fails. The judge noted that a municipal charter prevails over state law in matters relating purely to municipal concerns.

The plaintiffs say they were not granted equal protection because they were not treated similarly to other developers due to the actions of the three councilmen walking out of the meeting. However, the court said the complaint did not adequately show other developers were treated differently. The judge said the plaintiffs should be given the chance to show an instance where a similarly situated applicant was not treated as the developers said they were treated.

The suit also alleges that the plaintiffs demanded on Sept. 12, 2014 that the development be taken up as unfinished business at the next regular council meeting.

At that meeting, on Sept. 22, 2014, the suit says the three councilmen again walked out of the meeting when the development came up for consideration.

The plaintiffs say after the meeting was adjourned, Coffman was reported to have stated “hopefully, the court cases will be completed and we can get back to doing business… Until that point, we’re probably going to have the same situation occur.”

“The court concludes this statement, accepted as true with the reasonable inferences drawn in plaintiff’s favor, suggests that the defendant councilmen, by their actions, were seeking to coerce the dismissal of the action by Boevers Homes, Inc.

Cindy Boevers’ husband, developer Phil Boevers, had earlier filed a defamation suit against Robinson and certain members of the city staff, and Coffman and Gleichmann were reportedly listed as “notice recipients” in the defamation case.

Cindy Boevers and Strubhar say that lawsuit had nothing to do with them or their development, but because (Phil) Boevers Homes had existing residential construction contracts related to the development, the actions of the defendants financially harmed Phil Boevers and Boevers Homes as well.

The defendants contend the lawsuit created a conflict of interest for them, and this was their reason for walking out and not voting on the consideration of the plat.

“The effect of walking out was to stymie the statutory approval (or disapproval) process altogether, for essentially corrupt reasons (again taking plaintiff’s allegations as true), effectively paralyzing plaintiff’s legal position in such a way that the normal avenues of review were eliminated or substantially impaired (and in any event substantially delayed).” the judge noted in his order.

The trio of councilmen have asked Piedmont city attorney Mike Seglar several times during council meetings to advise them if they have a conflict of interest when asked to consider matters pertaining to Phil Boevers and his developments, or other matters related to him.

According to Robinson, as early as a last month, he still had not received an opinion from Seglar.

In their motion to dismiss, the defendants assert they acted with legislative immunity and in their individual capacities, they had qualified immunity.

The judge, in his order last week also noted that the plaintiffs argue that Coffman admitted differential treatment of the plaintiffs by stating in a Facebook post that stepping out of the council meeting was a “pretty rare event in politics.”

“This case has not yet gotten past the summary judgement stage, but at first blush, the court will observe that there is more than a passing chance it will be necessary for Mr. Coffman to explain this comment to a jury,” the judge wrote in his order.

“This case does not, as defendants suggest, present of “run of the mill” dispute between city officials and developer (plaintiffs). If this case were only that, the court would not hesitate to dismiss this action in its entirety – the federal courts have other things to attend to,” the judge wrote in his conclusion.

“However, based upon the allegations of the complaint, accepted as true, and assuming plaintiffs can amend their complaint to satisfy the ‘similarly situated in every material respect’ requirement, plaintiffs shall be allowed to proceed with their equal protection claim against the City of Piedmont and the defendant councilmen (for declaratory relief and perhaps injunctive relief).” Judge Friot continued.

“The court is also permitting plaintiffs to amend the complaint to re-allege the procedural and substantive due process claims against the City of Piedmont and the defendant councilmen (for declaratory relief and perhaps injunctive relief) if plaintiffs so choose. Further, the court is permitting plaintiffs leave to amend the complaint to re-allege their claims against defendant commissioners, if appropriate,” the judge continued.

The final upshot of the judge’s order was that the judge granted the defendant’s motion to dismiss the case, but he did give the plaintiffs 20 days to file an amended complaint.

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