ORDER

KRISTI K. DuBOSE, District Judge.

This action is before the Court on the Motion for Partial Summary Judgment (Doc. 58) filed by Plaintiff KTK Mining of Virginia, LLC ("KTK") and the Motion for Summary Judgment (Doc. 57) filed by the Defendant City of Selma, Alabama ("the City") along with the various briefs and exhibits (Doc. 59-61, 63-1, 67-73) in support of or opposition to same. The motions have been taken under submission (see Docs. 62, 78) and are ripe for adjudication. Upon consideration, and for the reasons set forth herein, the Court finds that KTK's motion is due to be GRANTED and that the City's motion is due to be DENIED as to KTK's procedural due process claims.1

I. Procedural History

On October 17, 2012, Plaintiffs KTK and Todd Kiscaden ("Kiscaden") initiated this action by filing a Complaint (Doc. 1) with the Court, asserting causes of action against the City and its Chief of Police, William T. Riley ("Riley"), pursuant to 42 U.S.C. § 1983 (for alleged violations of their rights under the First, Fifth, and Fourteenth Amendments of the United States Constitution) and state law. On March 19, 2013, Plaintiffs, with leave of the Court (Doc. 23), filed an Amended Complaint (Doc. 28), the operative pleading in this action.2 See, e.g., Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir.2007) ("As a general matter, an amended pleading supersedes the former pleading; the original pleading is abandoned by the amendment, and is no longer a part of the pleader's averments against his adversary." (quotation omitted)). The Amended Complaint also asserted claims pursuant to both § 1983 and state law.3

Both the City and Riley filed a motion to dismiss all claims asserted in the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 29). Briefing was conducted on the motion to dismiss, after which the Magistrate Judge issued a Report and Recommendation on the motion. (Doc. 40). On July 2, 2013, the Court adopted in part the Report and Recommendation and dismissed all of Kiscaden's claims, all claims against Riley, and some claims against the City. (Doc. 44). The Court expressly found that the following counts of the Amended Complaint were not dismissed and remained pending against the City: "Count One (First Amendment and procedural due process claim); Count Four (conversion as to personal property); Count Five (negligence and wantonness); Count Seven (permanent injunctive relief); and Count Eight (appeal of the suspension/revocation of KTK's building permit by the City of Selma)." (Id. at 2). KTK's present motion requests partial summary judgment in its favor "for the relief demanded for the violation of [KTK]'s Fourteenth Amendment procedural due process claims under Count I and Count VIII of the []First Amended Complaint." (Doc. 58 at 1). Though the City has moved for summary judgment on all of KTK's claims, the Court will presently only address the motion as it relates to KTK's procedural due process claim.

II. Standard of Review

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Rule 56(c) governs procedures and provides as follows:

Fed.R.Civ.P. 56(c).

A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The mere existence of a factual dispute will not automatically necessitate denial; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Sec'y of Dep't of Children & Family Servs., 358 F.3d 804, 809 (11th Cir.2004).

If a non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In reviewing whether a non-moving party has met its burden, the Court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in its favor. Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-99 (11th Cir.1992) (internal citations and quotations omitted).

"`Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed ... Nonetheless, cross-motions may be probative of the non-existence of a factual dispute when... they demonstrate a basic agreement concerning what legal theories and material facts are dispositive.'" United States v. Oakley, 744 F.2d 1553, 1555-56 (11th Cir. 1984) (quoting Bricklayers Int'l Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017 (5th Cir.1975)) (per curiam) (second ellipsis added). See also Wermager v. Cormorant Twp. Bd., 716 F.2d 1211, 1214 (8th Cir.1983) ("[T]he filing of cross motions for summary judgment does not necessarily indicate that there is no dispute as to a material fact, or have the effect of submitting the cause to a plenary determination on the merits.").

III. Facts

The Confederate Memorial Circle ("the Circle") is a one-acre tract of land located in the City's Old Live Oak Cemetery. The Circle was established in 1877 by a resolution of the Selma City Counsel granting a petition by members of the Ladies of the Confederate Memorial Association requesting a donation of one acre of ground located in that area upon which to erect a monument to the Confederate dead. In addition to hosting a Confederate memorial, the Circle serves as a burial place for 195 Confederate dead and is the site of a World War I memorial. A monument to Confederate General Nathan Bedford Forrest was added to the Circle in 2001 after the Selma City Council ordered that it be moved there from another location, where it had been erected in 2000 by an organization known as the Friends of Forrest ("FOF"). In March 2012, persons unknown vandalized the Forrest monument.

On August 2, 2012, KTK entered into a contract with Selma Chapter 53 of the United Daughters of the Confederacy ("UDC"), for the sum of $1.00 and other consideration, to perform construction work on the Circle for the purpose of making improvements. The UDC, along with the City, has taken part in the maintenance of the Circle for over 100 years. KTK estimates that, when completed, the work it planned to perform for the UDC would have a value of $163,200. KTK agreed to perform this work on a non-profit basis, with all costs and expenses to be either borne by KTK or reimbursed by private contributions. On August 6, 2012, KTK entered into a contract with FOF to make improvements to the Circle and to relocate and secure the Forrest monument within the Circle. KTK estimates that, when completed, the work it planned to perform for FOF would have a value of $56,300. KTK also agreed to perform this work on a non-profit basis and to bear most costs and expenses, other than those which FOF members might wish to cover voluntarily.

On August 3, 2012, pursuant to City Ordinance No. 01-9091, the Selma Historic Development Commission issued UDC and FOF a Certificate of Appropriateness for the Circle refurbishing project. That same day, the required Certificate of Appropriateness having been first obtained (due to the fact that the planned work was taking place in a historic district), KTK was issued a building permit from the City's Department of the Building Inspector to proceed with the project. KTK then began its work on the Circle.

On August 9, 2012, a protester, Rose Sanders a/k/a Faya Toure ("Toure"), entered the construction site and caused a disruption. On or about August 23, 2012, Toure and other protesters entered the construction site and attempted to halt KTK's work by climbing on structures and lying down in areas where work was occurring. Later that day, KTK, the protestors, the City mayor, and the City Attorney agreed to cease all activity, including work and protests, in the Circle until after municipal elections were held on August 28, 2012. The next morning, the protesters returned to the Circle and caused further damage to the construction site.

The evening of August 28, 2012, after the polls had closed, KTK employees returned to the Circle to resume work but were prevented from doing so by Chief Riley, who threatened arrest if they did so. On August 29, 2012, a meeting was held at Selma City Hall involving KTK, City officials, and a representative for the protestors, at which KTK agreed not to return to the Circle to perform work for a period of one week, to give time for the City Council to meet and resolve issues related to the project. KTK and its employees have not performed any further work at the Circle since the confrontation with Chief Riley on August 28, 2012.

The City Council held a meeting on September 25, 2012. At this meeting, Toure and other City citizens were permitted to address the City Council regarding the UDC's purported license to use the Circle, asking that the Council revoke that license. At some point, one council member made "a motion ... to stop the Permit of building the Nathan Bedford Forrest Monument, and revoke the Permit." (Minutes of 9/25/2012 City Council Meeting, Doc. 58-4 at 3). After further discussion, the following exchange occurred:

(Id.).

No item regarding KTK's building permit was included on the meeting agenda, and there is no evidence that KTK was given notice that such an action might take place at the meeting. The City's building inspector has never revoked the building permit or issued a stop-work order against KTK.

IV. Analysis

At the onset, neither this Order nor any other determination in this action will decide or even address whether the UDC has an ownership interest or license in, or any other right to make use of, the Circle. The UDC is not a party to this action, KTK does not assert that it has been granted any right to share in any alleged license4 or ownership interest, and KTK has presented no authority establishing how it would have standing to assert rights under a license or ownership interest it does not possess. Moreover, the Court agrees with the City (see Doc. 67 at 7) that a determination of such an issue is unnecessary to the disposition of the claims presented in this action. As such, the Court will not address any of the parties' extensive arguments related to this issue. Rather, the issue presently before the Court is whether KTK's due process rights were violated.

Arrington v. Helms, 438 F.3d 1336, 1347-48 (11th Cir.2006).5 Accord Catron v. City of St. Petersburg, 658 F.3d 1260, 1266 (11th Cir.2011). See also Greenbriar Vill., L.L.C. v. Mountain Brook, City, 345 F.3d 1258, 1264 (11th Cir.2003) ("When courts analyze a procedural due process claim ... they variously examine three things: (1) whether there is enough of a property interest at stake to be deemed protectable; (2) the amount of process that should be due for that protectable right; and (3) the process actually provided, be it before or after the deprivation." (quotation marks and footnote omitted)). "If the government fails to comply with the dictates of the Due Process Clause, the aggrieved party can seek compensatory damages and equitable relief under 42 U.S.C. § 1983." Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.2003) (citing McKinney v. Pate, 20 F.3d 1550, 1555, 1557 (11th Cir.1994) (en banc)).

KTK argues there is no genuine issue of material fact that the City violated its procedural due process rights by depriving it of a constitutionally-protected property interest when it suspended/revoked the building permit issued to KTK for the Circle refurbishing project without giving KTK a chance to be heard prior to the decision and without providing a means to challenge it.6

a. Deprivation of a Constitutionally Protected Property Interest

Arrington, 438 F.3d at 1348 (footnote omitted). Additionally, "[a]lthough the underlying substantive interest is created by an independent source such as state law, federal constitutional law determines whether that interest rises to the level of a legitimate claim of entitlement protected by the Due Process Clause. Resolution of the federal issue begins, however, with a determination of what it is that state law provides." Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 757, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) (internal citations and quotations omitted).

Conflicting arguments have been presented over whether the Selma City Council even has the authority to suspend or revoke a lawfully obtained building permit. KTK contends "that the vote of the City Council on September 25, 2013, was an ultra vires vote[,]" asserting that "[t]here is absolutely nothing by statute or ordinance which permits the Selma City Council to revoke or suspend a building permit where the underlying Certificate of] Appropriateness] has never been revoked or suspended, and the Building Inspector has never revoked or suspended the permit or issued a stop work order." (Doc. 59 at 12). In support of this argument, KTK cites to the deposition testimony of several City officials who testify either that the City Council does not possess such a power or that they have never known it to take such an action. (Id. at 12-13). KTK also cites to the deposition testimony of the City Council President purportedly admitting "that it was an illegal act for the City Council to have entertained and voted on a motion regarding a Confederate Circle issue on the evening of September 25th, which was not on the agenda as published..." (Id. at 13-14).

In response, the City points to testimony by the chairman of the Selma Historic Development Commission stating that the City Council can override "its approval" — "approval" presumably including Certificates of Appropriateness, which are not at issue in this action, see n. 6. (Doc. 67 at 8). The City also cites to Ala.Code § 11-43-56 ("Except as otherwise provided in this title, the council shall have the management and control of the finances and all of the property, real and personal, belonging to the city or town.") and § 11-45-1 (see infra).

To the extent both parties present witness testimony as evidence of what the City Council and other City officials can or cannot legally do, such testimony constitutes inadmissible legal conclusions that will not be considered. See Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir.1990) ("A witness... may not testify to the legal implications of conduct; the court must be the jury's only source of law."); United States v. Long, 300 Fed.Appx. 804, 814 (11th Cir. 2008) ("An expert witness may not testify as to his opinion regarding ultimate legal conclusions." (citing Montgomery)). If, as KTK argues, the City Council in fact had no authority to suspend or revoke KTK's building permit, then it would appear that the Council's vote to do so constitutes a void and unenforceable act, making it debatable whether the vote actually "deprived" KTK of the building permit.7 However, as the City points out, Alabama law provides that

Ala.Code § 11-45-1. Moreover,

Peak v. City of Tuscaloosa, 73 So.3d 5, 12 (Ala.Crim.App.2011). As such,

"It is, without question, a settled rule of law in Alabama that:

St. Clair Cnty. Home Builders Ass'n v. City of Pell City, 61 So.3d 992, 1007-08 (Ala.2010).8

Alabama law provides that "[a]ll legislative powers and other powers granted to cities and towns shall be exercised by the council, except those powers conferred on some officers by law or ordinance." Ala.Code § 11-43-43 (emphasis added). A municipal "council may adopt building laws and may employ building inspectors to see that the laws are not violated and that the plans and specifications for buildings are not in conflict with the ordinances of the city or town ..." Ala.Code § 11-43-59. KTK has presented to the Court City Ordinance No. 02-9899, passed by the City Council on September 13, 1999, which adopts "in all respects", inter alia, the "Standard Building Code — 1997 Edition." (Doc. 63-1 at 2). The "Standard Building Code — 1997 Edition" provides for the establishment of "a department to be called the building department[,]" with "the person in charge [to] be known as the building official. (Id. at 5, § 102.1). "The building official is ... authorized and directed to enforce the provisions of th[e] code" and "to render interpretations of th[e] code, which are consistent with its spirit and purpose." (Id., § 103.1). This includes the issuance of building permits as set out in Section 104 of the "Standard Building Code — 1997 Edition." This code sets forth the standards and procedures for the building official to issue permits. (Id. at 6-9). Moreover, Ordinance No. 02-9899 specifies that "within [the referenced codes], when reference is made to the duties of a certain official named therein, that designated official of City of Selma who has duties corresponding to those of the named official in said code shall be deemed to be the responsible official insofar as enforcing the provisions of said code are concerned." (Id. at 2).

The Alabama Court of Civil Appeals recently stated that a "[c]ity is required to follow the procedures set out in its own ordinances." Bd. of Zoning Adjustment of City of Trussville v. Tacala, Inc., ___ So.3d ___, ___, No. 2120132, 2013 WL 1490605, at *4 (Ala.Civ.App. Apr. 12, 2013). However, the Court does not read Ordinance No. 02-9899 as clearly divesting the City Council of any authority with regard to building permits, at least in matters related to "the management and control of ... all of the property, real and personal, belonging to the city or town." Ala.Code § 11-43-56. Moreover, by asserting that the City Council did in fact have the legal authority to suspend or revoke KTK's building permit, the City appears not to dispute that a "deprivation" has occurred. In addition, the actions of the City Council, considered in conjunction with the actions of Chief Riley in threatening to arrest KTK employees if they resumed work on the Circle (actions that Selma does not contest were taken at the behest of Selma's mayor), could be said to constitute a "deprivation" through interference with KTK's use of the building permit.

The City does contest whether KTK has a constitutionally protected property interest in the building permit. "[N]o procedural due process claim exists until a sufficiently certain property right under state law is first shown." Greenbriar, 345 F.3d at 12645. In arguing whether KTK has a constitutionally-protected property interest in the building permit for due process purposes, both KTK and the City cite to Greenbriar, 345 F.3d 1258, in which the plaintiff landowner also asserted such a property interest arising from a land-use permit issued by an Alabama municipality. In analyzing the landowner's § 1983 procedural due process claim, particularly with regard to the "constitutionally-protected property interest" element, the Eleventh Circuit applied the reasoning of the Second Circuit in Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir.1999); for instance, stating:

Greenbriar, 345 F.3d at 1264 n. 6 (quoting Natale, 170 F.3d at 263 (emphasis added)).9

As to "clear entitlement," "[t]he determining factor ... may be whether the permit-issuing government authority lacks discretion to deny the permit on which the plaintiff bases his property right. [Natale, 170 F.3d] at 263 ("[E]ntitlement turns on whether the issuing authority lacks discretion to deny the permit, i.e., is required to issue it upon ascertainment that certain objectively ascertainable criteria have been met"); see also Crown Point I, L.L.C. v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1217 (10th Cir. 2003) ("[W]hen a party challenges a land use decision by a governing body on due process grounds, the proper inquiry is whether that body had limited discretion in granting or denying a particular zoning or use application")." Id. at 1266.

The Eleventh Circuit set out the basis for the landowner's asserted property interest in Greenbriar as follows:

Id. at 1265 (footnote omitted).

The Eleventh Circuit ultimately concluded in Greenbriar that the landowner "lacked a federally protectable property interest[,]" as its "`entitlement to the permit[] sought turned ultimately on the resolution of the parties' [] law dispute as to whether [Greenbriar] had ... rights.' Natale, 170 F.3d at 263; see also id. at 264 (property owner lacked protectable property interest where the law became clear only after a state court's `refined analysis of two state statutes and a state Supreme Court decision')." Id. at 1266.

Greenbriar appears to be consistent with a more recent statement by the Eleventh Circuit regarding what constitutes a constitutionally protected property interest for purposes of procedural due process:

Barnes v. Zaccari, 669 F.3d 1295, 1303 (11th Cir.2012).

As adopted by City Ordinance No. 02-9899, Section 104 of the "Standard Building Code — 1997 Edition" sets forth the standards and procedures for the building official to issue permits. (Id. at 6-9). Section 104.1.3 states that "[a] building ... permit shall carry with it the right to construct or install the work ..." (Id. at 6). Thus, the City's ordinance creates a "right to construct or install []work" upon the issuance of a building permit. Moreover, section 104.4.2 states that "[i]f the building official is satisfied that the work described in an application for a permit and the contract documents field therewith conform to the requirements of the technical codes and other pertinent laws and ordinances, he shall issue a permit to the applicant." (Id. at 8 (emphasis added)). Thus, "the permit-issuing government authority" — i.e. the Building Inspector — "lacks discretion to deny the permit" so long as an applicant properly requests one. Greenbriar, 345 F.3d at 1266.

As to KTK's building permit, the City makes the conclusory assertion that KTK's "rights at issue were not clear at the time of the issuance of the permit, and even today have not been resolved." (Doc. 67 at 7). As Greenbriar and Natale make clear, "uncertainty" as to a party's rights under a land-use permit is a key consideration in determining whether a "constitutionally-protected property interest" arises from the permit. However, the "uncertainty" to which the City refers appears to be that surrounding the ownership of and right to use the Circle, rather than any "uncertainty" as to KTK's right to be issued a building permit under the applicable laws.10

KTK has presented undisputed evidence indicating that it was duly issued the building permit by the City's Department of the Building Inspector after complying with applicable City ordinances, for the stated purpose of "rebuilding N B Forrest monument." (Doc. 58-3 at 11, Building Permit). The City has offered no evidence or argument that the building permit was improperly issued or that KTK was not otherwise entitled to be issued it.11 Accordingly, because KTK has presented sufficient undisputed evidence of "`a clear entitlement to the permit under state law'", the Court finds no genuine issue of material fact that KTK has "`a federally protectable property right in the permit.'" Greenbriar, 345 F.3d at 1264 n. 6 (quoting Natale, 170 F.3d at 263).

b. State action

No party disputes that "municipalities may ... be held liable for the execution of a governmental policy or custom." Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir.1997) (citing Monell v. Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Moreover, the Supreme Court has held that "a municipality may be liable under § 1983 for a single decision by its properly constituted legislative body — whether or not that body had taken similar action in the past or intended to do so in the future — because even a single decision by such a body unquestionably constitutes an act of official government policy." Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The Court finds sufficient record evidence showing no genuine issue of material fact that the City Council's vote to suspend/revoke the building permit and the actions of Chief Riley constitute "state action" by the City.

c. Constitutionally adequate process

Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1316-17 (11th Cir.2011).

In Count 8 of its Amended Complaint, KTK alleged:

(Doc. 28 at 13, ¶ H).

The City did not address the element of constitutionally adequate process in its response to KTK's motion for summary judgment, finding it "need not be reached" due to its belief that KTK could not establish other elements.12 (Doc. 67 at 10). The undisputed record evidence shows no genuine issue of material fact that KTK was provided no pre-deprivation process. The first KTK learned of Chief Riley's intervention was when he confronted KTK's employees at the Circle after the municipal elections had taken place. As to the council vote to suspend/revoke KTK's building permit, the undisputed evidence shows that the issue was raised for the first time at the September 25, 2012 council meeting, where the vote was taken; that the issue was not included on the advance agenda for the meeting; and that KTK was not otherwise notified that such an issue would be raised, only learning of the action after the vote was taken. Accordingly, it could not be heard on or otherwise contest the deprivation before it occurred.13

Reams v. Irvin, 561 F.3d 1258, 1263-64 (11th Cir.2009).

The Court finds that pre-deprivation process in this case was not "impractical," as the deprivation was not "occasioned by a random, unauthorized act by a state employee," but rather "by an established state procedure[,]" Nat'l Ass'n of Boards of Pharmacy, 633 F.3d at 1317 — namely, a municipality's authority to "adopt ordinances and resolutions," Ala. Code § 11-45-1, through "the legislative powers and other powers ... exercised by the council[,]" Ala.Code § 11-43-43. See supra. Consideration of the Mathews factors also weighs in favor of requiring some pre-deprivation form of notice and hearing. KTK would certainly have a substantial private interest affected by the suspension/revocation of its building permit, as it had expended some efforts to obtain it and had expended time and resources on the Circle, as well as entered into at least one contract,14 in reliance on it. There was also a serious risk of an erroneous deprivation, evidenced by the fact that the City Council voted to suspend the permit after hearing only one side of the issue, the protesters, without allowing KTK an opportunity to present its own concerns. Moreover, the administrative burden of continuing the issue to the next council meeting, or even postponing a vote until later in the meeting to provide KTK notice and time to appear, was minimal. Both of these factors weigh in favor of requiring pre-deprivation process for KTK.

The record indicates that, in suspending/revoking KTK's permit without notice, the City could be said to have been exercising its interests in determining what its rights to control the use of the Circle were and in preventing further clashes between protesters and KTK employees at the Circle. However, undisputed evidence that the City Council did not hold a meeting addressing the issue until approximately a month after the last clash between KTK and the protesters diminishes the weight of any interest in preventing future confrontations, and the fact that private groups had been allowed to make use of the Circle for decades before the City Council suddenly began expressing interest as to what the extent of those rights were diminishes the weight of that interest. As such, this Mathews factor in favor of the City is outweighed by the previously discussed two in favor of KTK.15

Therefore, the Court finds no genuine issue of material fact that, in order to satisfy due process, the City was required to provided KTK notice and the opportunity to be heard prior to the City Council's suspension/revocation of its permit and that it was in fact provided neither.

V. Conclusion

In accordance with the foregoing analysis, it is ORDERED that the City's Motion for Summary Judgment (Doc. 57) is DENIED as to KTK's procedural due process claims only and that KTK's Motion for Partial Summary Judgment (Doc. 58) is GRANTED.