                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                 ___________

                                 No. 00-1869
                                 ___________

Carpenter Outdoor Advertising Co.,       *
a corporation,                           *
                                         *
             Appellant,                  *
                                         *
      v.                                 *
                                         * Appeal from the United States
City of Fenton, a municipal corporation; * District Court for the
Fran Ruzicka, Mayor; Larry Steelman, * Eastern District of Missouri.
Alderman; Wayne Berry, Alderman;         *
Terry L. Ball, Alderman; Christie Guise, *
Alderman; Tim Trego, Alderman;           *
Charles Preslar, Alderman; Steven        *
Brightman, Alderman; Jack Lauer,         *
Alderman; Franz Kraintz, Director of     *
Planning and Zoning; Valerie Adams,      *
City Administrator,                      *
                                         *
             Appellees.                  *
                                   ___________

                           Submitted: January 12, 2001

                                Filed: June 1, 2001
                                 ___________

Before WOLLMAN, Chief Judge, HANSEN, and MURPHY, Circuit Judges.
                             ___________
WOLLMAN, Chief Judge.

      Carpenter Outdoor Advertising Co. (Carpenter) appeals from the district court’s1
dismissal of its civil rights complaint against the City of Fenton, Missouri, the city’s
board of alderman (the board), and various other city officials (collectively, the city).
For the reasons stated below, we affirm.

       In reviewing the grant of a motion to dismiss a complaint under Federal Rule of
Civil Procedure 12(b)(6), we assume that all facts alleged in the complaint are true,
construe the complaint liberally in the light most favorable to the plaintiff, and will
affirm the dismissal only if it appears beyond a doubt that the plaintiff can prove no set
of facts which would entitle the plaintiff to relief. Coleman v. Watt, 40 F.3d 255, 258
(8th Cir. 1994).

       This dispute arose in 1997. At that time, the Missouri statutory scheme
regarding billboards provided that a state commission was responsible for, among other
things, the implementation of relevant state law for the issuance of permits for off-
premises outdoor advertising signs within 660 feet of an interstate highway. See
National Adver. Co. v. Missouri State Highway and Transp. Comm’n, 862 S.W.2d
953, 954-55 (Mo. Ct. App. 1993); Outcom, Inc. v. City of Lake St. Louis, 996 S.W.2d
571, 573 (Mo. Ct. App. 1999) (discussing Mo. Rev. Stat. § 226.540(7) (1994)). This
statutory scheme left some room for local regulation of the same area when it was
zoned for industrial or commercial use and met other requirements of the statute. Id.
An ordinance in Fenton’s zoning code prohibited all off-premises signs in areas zoned
for commercial and industrial use. In May of 1997, the Missouri legislature passed a




      1
       The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri, presiding over the case with the consent of the parties
pursuant to 28 U.S.C. § 636(c).

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bill with an effective date of August 28, 1997, that would allow municipalities to be
more restrictive with their zoning codes. The governor signed the bill in July of 1997.

       In early 1997, Carpenter leased two parcels of land in Fenton within 660 feet of
interstate highway 44 as a location for two new off-premises outdoor advertising signs.
In April of 1997, Carpenter applied for and received permits for the two signs from the
state commission.

       Notwithstanding the local ordinance prohibiting such signs, on June 12, 1997,
Carpenter filed permit applications for the signs with Fenton’s planning and zoning
director. Carpenter attached to the applications a copy of state court decisions that it
contended demonstrated the invalidity of Fenton’s code when compared to the
requirements of the state statutes. Fenton’s code requires the director to take action
within fifteen days of a filed application, but it was not until July 30 that the board held
a special emergency meeting to take up the issue of off-premises outdoor advertising
and its zoning code. Carpenter’s representatives attended the meeting and presented
a position paper relevant to the issue, contending that Fenton’s zoning code was invalid
and that the city thus was required to issue the permit. Unpersuaded, the board enacted
a temporary moratorium, which would terminate automatically on October 30, 1997,
on any new off-premises signs pending the board’s review of the zoning code.

     On August 19, 1997, Carpenter withdrew the permit applications. The next day,
however, it sought and received from the state circuit court an ex parte order of
prohibition against the city allowing it to erect the signs. Armed with this order,
Carpenter erected the signs. On August 28, 1997, after a hearing on the matter, the
court dissolved its order and ordered Carpenter to take down the signs. Carpenter
complied with the court’s order and unsuccessfully appealed the decision through the
state court system.




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       On October 7, 1997, Carpenter filed with the city new permit applications for
the two signs. Two days later, the board enacted a new zoning ordinance, rescinding
the moratorium. The new ordinance allowed off-premises outdoor advertising signs
with certain restrictions, such as size limitations. Carpenter then amended its permit
applications. It readily concedes that the plans for the signs in the amended permit
applications do not meet the requirements of the new ordinance, contending instead that
this new zoning ordinance is also invalid under state law. The city has stated that it will
not act on the permit applications until they comply with the ordinance. Carpenter has
not sought variances from the city or further relief in state court.

       Carpenter filed its complaint, later amended, in federal district court on August
11, 1998, alleging a number of constitutional claims grounded in 42 U.S.C. § 1983 and
§ 1985. In a thorough, well-reasoned memorandum opinion, which we adopt by
reference, the district court granted the city’s motion to dismiss, holding that Carpenter
had failed to state a claim upon which relief could be granted on any of its claims,
including those alleging violation of its rights to free speech, procedural and substantive
due process, equal protection, and just compensation for a taking.

       On appeal, Carpenter first contends that its complaint properly alleges a claim
based on the First and Fourteenth Amendments of the federal constitution. Carpenter’s
primary argument is that because both the moratorium and the original version of the
ordinance violated state law, their application violated its free speech rights under the
plurality’s opinion in Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981). At
its core, this argument presents the question whether either version of the ordinance
conflicted with state law rather than a question of federal constitutional law. As for the
remainder of the first amendment argument regarding commercial speech, the district
court determined, and we agree, that the complaint fails to allege the elements of a
claim under Metromedia, 453 U.S. at 507-08, 512. The allegation that the city’s
original ordinance ran afoul of the plurality’s holding in Metromedia overlooks the fact
that in Metromedia the invalid ordinance allowed commercial but not noncommercial

                                           -4-
on-premises signs, an impermissible content-based discrimination. See Metromedia,
453 U.S. at 513 (“Insofar as the city tolerates billboards at all, it cannot choose to limit
their content to commercial messages.”). Accordingly, the district court did not err in
dismissing Carpenter’s first claim.

       Second, Carpenter argues that its complaint sufficiently alleges that the city’s
actions violated its procedural and substantive due process rights. A due process claim
“is cognizable only if there is a recognized liberty or property interest at stake.”
Johnson v. City of Minneapolis, 152 F.3d 859, 861 (8th Cir. 1998). “Property interests
are created by existing rules or understandings that stem from an independent source,
such as state law,” id., but federal constitutional law determines whether the interest
created by state law rises to the level of a protected property interest. Memphis Light,
Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978).

       Carpenter contends that it has a property interest in its state law permits,2 arguing
that the city could not under its zoning code override the state commission’s issuance
of permits. Under Missouri law, however, municipalities have the authority to regulate
outdoor advertising in zoned commercial and industrial areas within 660 feet of an
interstate highway after the state agency issues a permit. See Mo. Rev. Stat. §
226.540(7). Although Carpenter argues that the city’s zoning code is null and void


       2
        On appeal, Carpenter argues that the property interest arises from the local
permits, but we have been unable to locate this allegation in the amended complaint.
In any event, the local ordinance would not give Carpenter a vested right because
Carpenter has admittedly never met the city ordinance’s requirements. See Carolan v.
City of Kansas City, Mo., 813 F.2d 178, 181 (8th Cir. 1987) (holding that property
interest created in a local building permit if (1) the municipality lacks discretion and
must issue a building permit to an applicant who complies with the requirements for a
permit and (2) the applicant has fulfilled the requirements). Also, Carpenter withdrew
the permit applications on which it based this argument, indicating that it had no
expectancy of their approval.

                                            -5-
under state law and that therefore a state permit is all that it needs to have a property
interest, state law also holds that a local ordinance is presumed to be valid. See
McCollum v. Director of Revenue, 906 S.W.2d 368, 369 (Mo. 1995) (en banc) (per
curiam); Outcom, 996 S.W.2d at 575. Under state law, then, Fenton had some ability
to regulate outdoor advertising. Its zoning code is presumed to be valid, precluding
Carpenter’s argument that it legitimately expected that it would be able to erect its
signs upon receipt of a state permit. Accordingly, we conclude that the complaint does
not allege a protected property interest arising from state law, and thus Carpenter’s due
process claim fails. See Johnson, 152 F.3d at 862; cf. Batra v. Board of Regents of
the Univ. of Neb., 79 F.3d 717, 720 (8th Cir. 1996) (holding that for property interest
to arise, a plaintiff must have more than “mere subjective expectancy”); see also Drury
Displays, Inc. v. City of Shrewsbury, 985 S.W.2d 797, 800 (Mo. Ct. App. 1998) (state
court found no protected property interest in similar situation). Furthermore, with
regard to substantive due process, we have held that “a state-law error, no matter how
fundamental, cannot in and of itself create a federal due-process violation.”
Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d 1102, 1105 (8th Cir. 1992).
Carpenter’s due process claims are grounded in its allegations of error under Missouri
law, and thus it has not sufficiently alleged a substantive due process claim. See id.

        Carpenter’s remaining three claims do not require extended discussion. The
section 1985 claim fails because Carpenter does not allege a “class-based invidiously
discriminatory animus” or facts that would support such an allegation. See Bell v.
Fowler, 99 F.3d 262, 270 (8th Cir. 1996) (internal quotation omitted). The equal
protection claim based on arbitrary or irrational state action fails because, although
Carpenter’s complaint alleges that the city intentionally delayed approval of its permits,
it does not allege “an unlawful intent to discriminate . . . for an invalid reason” with
regard to that action. Batra, 79 F.3d at 721. Finally, Carpenter’s claim based on the
Just Compensation Clause of the Fifth Amendment fails because “[t]he general rule is
that a plaintiff must seek compensation through state procedures before filing a federal
takings claim,” Von Kerssenbrock-Praschma v. Saunders, 121 F.3d 373, 379 (8th Cir.

                                           -6-
1997); see Williamson County Reg’l Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 194-195 (1985), and Carpenter has not done so. Carpenter instead
argues that following state procedures would be futile because the city’s refusal to act
on its applications prevents Carpenter from obtaining a final decision and therefore it
is excused from following state procedures under Missouri law. The Missouri cases
Carpenter cites, however, do not support this proposition, and this claim thus fails as
premature. Cf. Littlefield v. City of Afton, 785 F.2d 596, 609 (8th Cir. 1986) (“Until
the Minnesota courts have ruled that an inverse condemnation action may not be
brought or denies damages in such an action, appellants’ claim of taking without just
compensation is not ripe for decision by a federal court.”), overruled in part on other
grounds as stated in Chesterfield, 963 F.2d at 1104 n.2.

        The judgment is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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