Owner of fourplex forfeited right to continue as nonconforming use when two apartments remained unoccupied for more than one year

April 17th, 2014

by Rachel Greifenkamp and Gary Taylor

Rodehorst Brothers v. City of Norfolk Board of Adjustment

(Nebraska Supreme Court, March 28, 2014)

The City of Norfolk, Nebraska zoning code includes the following provision with regard to nonconforming uses:

In the event that a nonconforming use is discontinued, or its normal operation stopped, for a period of one year, the use of the same shall thereafter conform to the uses permitted in the district in which it is located.

The Rodehorst Brothers partnerships owns a fourplex in Norfolk an area zoned R-2 for one and two family use. The fourplex is a legal, nonconforming use. In 2010 and 2011 Rodehorst applied for building permits to replace a roof, fix some electrical issues, and remodel the apartments in the building. The first two were granted by the building inspector but the third (apartment remodels) was denied because the inspector concluded that Rodehorst had forfeited its right to continue its nonconforming use of a fourplex because several of the apartments in the building had been unoccupied for more than one year.

Rodehorst appealed the denial of the permit to the City of Norfolk Board of Adjustment (Board), and also requested that they grant a use variance to allow the building to continue operating as a fourplex. Rodehorst argued that simply failing to rent out the apartments did not cause a forfeiture of the right to operate as a fourplex, and that it had been trying to “fix up” the building for years.  Rodehorst also argued that it would suffer an undue hardship without the use variance.  The City argued that the right to operate the building as a fourplex was forfeited because the apartments were unoccupied for more than one year.  The City further argued that the Board did not have authority to grant a use variance because the zoning code defines “variance” as “relief from or variation of the provisions of [the zoning code], other than use regulations, as applied to a specific piece of property, as distinct from rezoning.” The Board agreed with the City on both arguments, and Rodehorst appealed the decision to the district court.

At the district court Rodehorst employed the same arguments but went on to say that the Board’s ruling was an unconstitutional taking. The district court, however, affirmed the Board’s ruling in all respects.

Rodehorst appealed the decision of the District Court to the Nebraska State Supreme Court using the same three arguments as when it appealed to the District Court.

Right to continue nonconforming use.  Nebraska Revised Statutes provides that, with regard to nonconforming uses for cities of the first class, “if a nonconforming use is in fact discontinued for a period of twelve months, such right to the nonconforming use shall be forfeited and any future use of the building and premises shall conform to the regulation.”  The Supreme Court first noted that the choice of the word “discontinued,” as opposed to “abandoned,” is important.  Abandonment requires not only a cessation of the nonconforming use, but also an intent by the user to abandon the nonconforming use.  Where a legislature or other zoning authority has used the word “discontinued”…instead of “abandoned” their purpose is ‘to do away with the need to proved intent to abandon.’”  This squares with the plain, ordinary meaning of the term “discontinue,”  and is consistent with the notion that nonconforming uses are disfavored because they reduce the effectiveness of the zoning ordinance, depress property values, and contribute to the growth of urban blight.

Rodehorst argued that the nature and characteristics of the building control; in other words, that the building is and always was divided into four separate living units.  The Court disagreed. After reviewing cases from several other jurisdictions, the Court concluded that

The degree of occupancy is the critical factor in determining whether a multifamily dwelling nonconforming use remains in effect, while the existing characteristics of the building (such as separate units and features) generally go to whether the user intended to abandon the nonconforming use.  As noted earlier, intent to abandon is not relevant because [Nebraska] zoning laws speak in terms of discontinuance….Thus, the degree of occupancy of the building is the central inquiry.

Noting that “this is not a situation where the discontinuance was involuntary” but rather that no effort had been made to rent the apartments for a number of years, the Court ruled that “a discontinuance period will run where the landlord did not really try to rent the premises.” Thus, the Court affirmed the district court on this argument.

Authority to grant use variance.  Citing the relevant provision of Nebraska Revised Statutes, which allows for the grant of a variance “when by reason of exceptional narrowness, shallowness, or shape of a specific piece of property…or exceptional topographic conditions” the Court denied Rodehorst’s argument for a use variance because the request was based on its desire to continue using its building as a fourplex, not because of any physical characteristic of its property.

Taking.  While acknowledging that discontinuance provisions may work a taking in some cases, the Court denied that such a claim could be sustained in this case.  Using the three-factor test from Penn Central, the Court concluded that (1) even assuming a 50 percent diminution of value, that level of loss generally does not equate to a regulatory taking; (2) Rodehorst bought the property when it was already a nonconforming use, and thus his reasonable investment-backed expectations should have been that he could continue it as a fourplex only so long as its use as such was not discontinued for a period of one year; and (3) the character of the governmental action – to gradually eliminate nonconforming uses over time – is a recognized good.

Nebraska courts, Non-Conforming Uses, Takings, Variances , , , ,

Effect on county tax base not relevant to decision to create rural improvement zone

April 13th, 2014

by Gary Taylor

Homeowners Association of the Coves of Sundown Lake v. Appanoose County Board of Supervisors
(Iowa Court of Appeals, March 26, 2014)

The Homeowners Association of the Coves of Sundown Lake (Association) petitioned the Appanoose County Board of Supervisors (Board) to establish a rural improvement zone (RIZ) surrounding the lake for the purpose of diverting future property tax revenue growth towards making improvements in the Sundown Lake area.  The petition contained 172 signatures, representing at least 25% of the residents and 25% of the total assessed value of the proposed zone.  The Association requested a public hearing before the Board, and a hearing was held November 2, 2012.  Information was presented during the hearing concerning the need for improvements to the lake; most notably to alleviate the effects of silting.  The Board also discussed the requirements for establishment of a RIZ and the loss of revenue to the county if a RIZ was created.  The statutory requirements necessitating that the Board hold a hearing were not discussed; however, the Board denied the request on November 13 because the Association had failed to meet the statutory requirements for Board consideration, and also because of the loss of tax revenue to the county if a RIZ were created.  On appeal, the district court found the Board was precluded from examining whether the petition had satisfied the statutory requirements because the Board had in fact scheduled and held the hearing. The district court also concluded that the Board acted illegally in considering the impact of a RIZ on county tax receipts. The Board appealed to the Court of Appeals.

After confirming that the Association had standing to bring the initial suit before the district court, the Court of Appeals confirmed both conclusions of the district court.  First, the Court of Appeals examined the statutory scheme of Iowa Code 357H.1 through 357H.4 (procedures for creating RIZ) and concluded that once the Board called a hearing, the only matters it was empowered to consider were the merits of the petition, not whether the petition itself met the statutory requirements.

This interpretation avoids the element of unpredictability found in this case. The Board’s interpretation of the chapter would allow a board to set a hearing for the purpose of determining whether an improvement is needed, hold the hearing on the merits, and then confound the petitioners by deciding – after the hearing on the merits an without discussion – that the hearing itself should not have occurred.  We find nothing in the chapter to evidence a legislative intent to create such inefficiencies.

Second, the Court of Appeals affirmed that the Board was not to consider the effect of the RIZ on the county’s tax base.  “The chapter directs a board to establish a zone if the area is in need of improvements. The consideration is specifically and unambiguously limited to the needs of the area under consideration and does not include issues pertaining to the county as a whole….The Board acted improperly by considering the impact the zone would have on county finances.”  The Court of Appeals affirmed the district court order for the Board to consider the Association’s petition using a proper interpretation of chapter 357H.

Iowa Court of Appeals, Rural improvement zones , ,

Action of Amana Colonies Land Use Board of Trustees in approving hotel and convention complex was quasi-judicial

April 6th, 2014

by Gary Taylor

Catherin Oehl, et al, v. Amana Colonies Land Use District Board of Trustees
(Iowa Court of Appeals, March 26, 2014)

(Note: For those Iowans curious about the history of the special land use legislation affecting the Amana Colonies, Iowa Code 303.41 et seq.,  the facts of this case are repeated in detail.)

The Amana Colonies are unincorporated villages in Iowa County. In 1932, the Amana Society, a private corporation, owned the 26,000 acres in which the Amana Colonies are located. Development within the Amana Colonies was effectively managed by deed restrictions and covenants. In 1982, the Iowa Supreme Court held that land use restrictions in the deeds were invalid and unenforceable, effectively nullifying the informal land use control system governing development within the Amana Colonies. In response, the Iowa legislature authorized the creation of special land use districts for the purpose of preserving the “distinctive historical and cultural character” of the districts so created.*** Although the statutory language authorizing the creation of land use districts is phrased in general terms, the definition of eligible districts and legislative history make clear that the statute was created specifically to allow the residents of the Amana Colonies, collectively, to manage development in their historically and culturally significant community in a manner consistent with community traditions and values.

Voters in the Amana Colonies approved the creation of the Amana Colonies Land Use District (ACLUD), and elected a seven-member Board of Trustees. The Board adopted a Land Use Plan that emphasizes historic preservation. The Land Use Plan provides for the creation of Historic Preservation Districts (HPD). The Land Use Plan also establishes an Historic Preservation Committee (HPC) tasked with consideration of applications for Certificates of Approval (COA) for “[a]ny construction, alteration, demolition, or removal affecting a significant exterior architectural feature of any structure within an HPD.” The Board may issue a COA for construction of a structure in an HPD after review and recommendation by the HPC.

In May 2010, the Cutlers applied for a COA to build a hotel, convention center, and banquet complex as additions to their restaurant.  The HPC unanimously approved the proposal and sent it to the Board, where it was tabled for 12 months while multiple hearings were held.  The Appellants in this case opposed the COA and presented their views at these hearings. Then in 2011 the Cutlers presented an update application.  The HPC forwarded to the Board without a recommendation.  The Board initially voted 3-3 on that application, but after the Cutlers made changes to the proposal the Board reconsidered and voted 4-2 in favor of the application.  The COA was issued and the Appellants appealed to the ACLUD Board of Adjustment (BOA), which under Iowa Code 303.54 is empowered to “make special exceptions to the terms of the land use plan which are in harmony with its general purpose and intent and in accordance with the general or specific rules of the plan.”  The BOA determined it did not have the authority “to review and overturn the essentially legislative decision of the Board of Trustees to grant applications such as that of the Cutlers.”  Appellants then challenged the COA itself in a declaratory action filed in district court approximately 105 days after the issuance of the COA, and 70 days after the BOA decision. The district court dismissed the case as improper and untimely.

The Iowa Supreme Court stated in Sutton v. Dubuque that a certiorari action (as opposed to a declaratory action) is the exclusive remedy for challenging a quasi-judicial action, and such actions must be filed within 30 days of the decision being challenged.  The question in the present case, therefore, was whether the action of the Board of Trustees in issuing the COA was a quasi-judicial action.  The Court of Appeals determined that it was.  A tribunal is exercising quasi-judicial authority when “(1) the questioned act involves a proceeding in which notice and an opportunity to be heard are required; (2) a determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law thereto; or (3) the challenged act goes to the determination of some right the protection of which is the peculiar office of the courts.”  The Court of Appeals acknowledged that the Land Use Plan declares determinations about COAs to be “legislative policy determinations,” but further recognized from prior caselaw that it “must look to the nature of the act regardless of the label applied to it.”  In reviewing the record the court agreed that contentions by the Appellants that the Cutlers’ proposal did not meet several requirements found in the Land Use Plan – including those for yard size and parking – were all complaints that the Board did not properly apply the facts to the regulations – “complaints arising out of the Board’s quasi-judicial functions and not its legislative functions.”  Because the Board’s decision was quasi-judicial in nature, the Appellants’ failure to file a certiorari action in a timely manner warranted dismissal of the case.

———————————

 *** 303.41  Eligibility and purpose.

A land use district shall not be created under this subchapter unless it is an area of contiguous territory encompassing twenty thousand acres or more of predominately rural and agricultural land owned by a single entity which has within its general boundaries at least seven platted villages which are not incorporated as municipalities at the time the district is organized. The eligible electors may create a land use district to conserve the distinctive historical and cultural character and peculiar suitability of the area for particular uses with a view to conserving the value of all existing and proposed structures and land and to preserve the quality of life of those citizens residing within the boundaries of the contiguous area by preserving its historical and cultural quality.

 

Iowa Court of Appeals, Quasi-judicial land use decisions , ,

News from around Iowa: Waterloo restrictions on payday lenders, pawn shops not imminent after all

March 31st, 2014

The title of my March 11 post was “Waterloo nears restrictions on payday lenders, pawn shops.”  Perhaps that conclusion was premature.  Not all Waterloo council members are sold on the restrictions.  The latest article from the Waterloo Cedar-Falls Courier is here.

current news , ,

Activities of landowner, not intent, determine whether “land disturbing activity” has taken place

March 27th, 2014

by Rachel Greifenkamp

Town of Raymond v. Mary Jane Vogt and Raymond R. Vogt

(Wisconsin Court of Appeals, January 22, 2014)

The Town of Raymond, WI has an ordinance that prohibits landowners from engaging in land-disturbing construction activities that cause runoff into state waters without first obtaining a permit. Raymond and Mary Jane Vogt testified that they removed weeds and thistles, moved land in order to vertically install a large steel plate five to eight feet from the neighbor’s property line, and filled a ten-by-twenty-foot area of the ditch with gravel and multiple truckloads of dirt to enhance a drainage ditch between their property and their neighbors property.  All of this work was performed without a permit. A trial court determined this to be “land-disturbing activity” within the meaning of the term found in the Town ordinance, The trial court ordered the Vogts to allow Town agents to inspect their property and develop a remedial plan, which the court then approved and ordered the plan to be carried out at the expense of the Vogts. In all, the trial court awarded the Town $16,676 for expenditures and $45,131.50 for daily forfeitures and costs, totally nearly $52,000 to be paid by the Vogts.  The Vogts appealed.

The Town ordinance defined “land disturbing activity” as “any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state.”  At the trial court hearing, the town of Raymond’s engineer testified that the changes made by the Vogts restricted water flow and led to an increase in water on their neighbors property and that it reduced the amount of water flowing from the Vogts’ property into the Root River (a state waterway). The Vogts countered by saying that the activities were performed to clean and restore the existing drainage ditch, and were intended to reduce erosion. The trial court concluded – and the Court of Appeals affirmed however – that the activities of a party are what determines whether a permit is necessary to proceed. The trial court found that the Vogts performed clearing, excavating, filling, and grading on the property that changed the topography by more than a foot, and that the runoff from the Vogts’ property drained into the Root River.  The Court of Appeals concluded that the evidence sufficiently proved that the Vogts’ work constituted non-exempt land-disturbing construction activities. The holding in favor of the Town of Raymond was held by the Court of Appeals.

water resources, Wisconsin courts ,

Spacing restrictions on digital billboards do not violate First Amendment

March 24th, 2014

by Rachel Greifenkamp

Hucul Advertising, LLC v. Charter Township of Gaines

(Federal 6th Circuit Court of Appeals, February 5, 2014)

Hucul Advertising, LLC applied for permission to construct a billboard in the Charter Township of Gaines, MI. The application was denied by the Township on the ground that the billboard would violate Chapter 17 of the Gaines Township Zoning Ordinance. At the time, the ordinance permitted billboards only on property that was adjacent to the M-6 highway, and Hucul’s property did not satisfy the adjacency requirement. Hucul Advertising then applied to build a digital billboard on the same property. That application was also denied, both because of the adjacency requirement, and because the proposed digital billboard would be located within 4,000 feet of another digital billboard, which would also be a violation of the ordinance. Hucul then applied to the Zoning Board of Appeals (“ZBA”) for relief seeking approval to install the digital billboard, which the ZBA denied. The Township later amended the ordinance to require that any proposed billboard be built within 100 feet of the M-6 and to clarify that, in order for a parcel to be “adjacent” to the M-6, it must “abut and have frontage on the M-6.”

Hucul challenged the ZBA decision claiming that the ordinance violated the First Amendment, claiming that the requirement of 4,000 feet between billboards is an impermissible restriction on commercial speech in violation of the First Amendment, that the Township treated land adjacent to public property differently from land adjacent to private property in violation of Equal Protection, and that Hucul’s civil rights by enforcing the ordinance. The Township removed the case from state court to federal district court. The district court held that the 4,000-foot spacing requirement constituted a valid “time place, and manner” restriction on speech and did not violate the First Amendment, and also dismissed the other claims.

The Sixth Circuit Court of Appeals agreed that the “time, place, and manner” test was appropriate in this situation.  Hucul argued that the Central Hudson test for the regulation of commercial speech was the appropriate test; however, the Court recognized that the Township’s regulation did not distinguish between commercial and non-commercial billboards.  in applying the “time, place and manner” test the Court affirmed that aesthetics and traffic safety are significant interests that warrant government regulation.  The Court refused to invalidate the 4,000 foot spacing requirement, stating that just because state law would permit a lesser spacing requirement, evidence presented in district court supported a greater spacing for digital billboards because their increased visibility and changing copy make them greater distractions to motorists.  Finally, the regulation leaves open ample alternative avenues of expression because the regulations do not prohibit handing out leaflets or public speech in this or other locations.  The Court of Appeals affirmed the district court decision in favor of the Township.

Federal courts, First Amendment claims, Signs and billboards , ,

Limiting percentage of rental units allowed per block was valid exercise of police power

March 20th, 2014

by Rachel Greifenkamp and Gary Taylor

Dean v. City of Winona

(Minnesota Court of Appeals, February 24, 2014)

In the City of Winona, MN, there exists an ordinance that limits, in certain districts of the city, the number of lots on a block that are eligible to obtain certification as a rental property. Based on the findings from the city’s planning commission and a Parking Advisory Task Force that was formed to consider the issues of increased parking demands, the City found that rental-housing units comprised about 39% of the City’s total housing units, but that these rental properties comprised 52% of the complaints received by the Community Development Department. Based on data from 2004, the planning commission found that 95 of the 99 calls for police service based on noise and party-related complaints involved rental properties. They also found that 52% of the zoning violations that resulted in written violations were for rental properties. In 2005, the idea of restricting the number of rental properties per block was suggested. The Parking Advisory Task Force suggested that the number of rental units be restricted to 30% of the total properties on any given block. The task force adopted a motion to forward a “30% rule” to the planning commission for its consideration. The planning commission voted to recommend the 30% rule to city council, and the council subsequently passed the 30% rule.  The three appellants challenging the 30% rule in this case were the owners of three houses that were purchased after the 30% rule was adopted. In January of 2013 the district court denied the appellants’ motion that the 30% rule was an invalid exercise of the City’s broad police power, and that it violated their Equal Protection, Substantive Due Process, and Procedural Due Process rights under the Minnesota Constitution, and granted summary judgment to the city. The appellants then took their case to the Minnesota Court of Appeals.

Police Powers. The Court of Appeals determined that the 30% rule was, in fact, an authorized exercise of police power. The term “police power” means simply the power to impose such restrictions upon private rights as are practically necessary for the general welfare of all. “The development of the law relating to the proper exercise of the police power of the state clearly demonstrates that it is very broad and comprehensive, and is exercised to promote the general welfare of the state….[T]he public has a sufficient interest in rental housing to justify a municipality’s use of police power as a means of regulating such housing.”

Equal Protection. In order for an equal protection challenge to be valid the appellant must show that “similarly situated persons have been treated differently.” Similarly situated means that the two groups in question are alike in all relevant respects. The Court concluded that the 30% rule is not invalid on its face:

The ordinance is facially neutral and applies equally to all property owners in the regulated districts. The ordinance sets a 30% cap, but it does not define or predetermine which lots will be certified. That determination is made based on the changing facts and circumstances on each block, and not based on the ordinance or the characteristics of lot owners. The fact that the number of lots that may be certified might be less than the number of property owners who desire certification is not a class-based distinction between two groups of property owners.

The Court also concluded that the 30% rule was not discriminatory in the manner it was being applied by the city.  The Appellant did not show that the city “has done anything other than apply the mathematical formula on a first-come, first-served basis. Appellants’ real complaint is about the effect of an otherwise neutral ordinance on their particular circumstances, which does not give rise to an equal protection claim.”

Substantive and Procedural Due Process.  The substantive due process and procedural due process claims were also considered invalid. The appellants argued the the 30% rule violated their right to rent their property, but such a right is not a “fundamental right” protected by the Minnesota Constitution.  Unless a fundamental right is at stake, substantive due process requires only that the statute not be arbitrary or capricious.  The Court concluded that the 30% rule was adopted after a long, deliberate information-gathering process that considered public input, data, and expert review, and was thus not arbitrary or capricious.

As for procedural due process, the appellant’s argued that the 30% rule improperly delegates the power of deciding whether or not they may receive a license to their neighbors, but the Court reasoned otherwise because the “neighbors” (owners of certified rental properties) do not determine which other lots may be certified. “The certified-property owners’ views regarding whether a particular lot should be certified as a rental property are irrelevant; they can neither grant certification by consenting to it nor prevent certification by denying consent.”

The Minnesota Court of Appeals affirmed the district court’s award of summary judgment in favor of the city because the adoption of the ordinance was an authorized exercise of its police power and because the appellants did not met the burden to show that the ordinance is unconstitutional.

Due Process, Equal Protection claims, Minnesota courts, Police powers, Rental ordinances , , , , ,

News from around Iowa: Dubuque also considers limitations on payday lenders

March 19th, 2014

Dubuque is also considering zoning restrictions on payday lenders.  This comes after last week’s story that a Waterloo payday lending ordinance is before the city council.  The Dubuque story from KCRG is here.

current news ,

News from around Iowa: Iowa City neighborhood to be considered for historic preservation district

March 18th, 2014

The Goosetown neighborhood, and the area around Mann Elementary have been proposed by the Iowa City Historic Preservation Commission to be identified as a new conservation district.  The Iowa City planning and zoning commission will consider the proposal during a meeting in April, and, if approved, the proposal will move to the City Council for consideration.  The article from the Iowa City Press-Citizen is here.

current news, Historic preservation ,

Denial of license to mobile food vendor not a violation of Equal Protection or Dormant Commerce Clauses

March 17th, 2014

by Rachel Greifenkamp

The Dog Pound, LLC v. City of Monroe, Michigan

(Federal 6th Circuit Court of Appeals, March 10, 2014)

In Monroe, Michigan The Dog Pound, an aspiring hot dog vendor, applied for and was denied a license under Monroe’s Hawker, Peddler, and Transient Merchant ordinance. The ordinance, in 2009 when the license was applied for, regulated street-vendors’ operations and required additional permission (not just a license) if the vendor wanted to run their vending business in a specific Restricted Area (an area that covered most of downtown Monroe). It also established a 10 minute limit on any activity by a vendor at any one location within the city. The Dog Pound alleged that the ordinance was unconstitutional because it violated the Equal Protection Clause, the Due Process Clause, and the dormant Commerce clause (all appear in both the United States Constitution as well as the Constitution of Michigan). A district court granted the City of Monroe’s motion for summary judgment and dismissed the case.

The Dog Pound claimed that the ordinance violated the Equal Protection Clauses of both the United States and the Michigan Constitutions because it created an illegal classification, itinerant merchants, and treated them differently from permanent business owners. Originally, The Dog Pound sought a declaratory judgment that the ordinance was invalid or a writ of mandamus. In 2011 the City of Monroe and The Dog Pound began settlement negotiations, meanwhile, the city amended the ordinance, eliminating the restricted area. When the negotiations failed, the court took up the question of preliminary injunction, and ended up denying The Dog Pound’s motion stating that the amendment to the ordinance “essentially moots the plaintiff’s arguments.” The Dog Pound then filed two amended complaints. (1) A violation of the Due Process clauses of the United States and Michigan Constitutions, alleging that the sole purpose of the act was to protect local static businesses against competition, (2) A violation of the dormant Commerce Clause, alleging that the disparate treatment of itinerant merchants discriminates against and burdens out-of-state businesses in favor of local businesses. The federal district court granted the City’s motion for summary judgment.

The Sixth Circuit Court of Appeals heard the case on appeal and tackled each of the three claims separately. (1) Equal Protection. The Dog Pound applied for a license under the amended ordinance, in 2001, but the application was incomplete. The city pointed out the deficiencies in the application and how each could be fixed, but The Dog Pound failed to complete the application. Therefore, The Dog Pound couldn’t possibly prove that it had been treated differently from other businesses that had applied for the license. The court stated that “There is therefore no issue of material fact and the district court was correct to grant summary judgment.” (2) Dormant Commerce Clause. The Dormant Commerce Clause is designed to ensure that a state cannot place oppressive and unnecessary burdens on out-of-state businesses. Both in-state and out-of-state businesses had to apply for a license as well as were subject to the 10-minute rule. Because the ordinance did not treat out-of-state businesses any different from in-state businesses, this claim was considered irrelevant. (3) Due Process and Equal Protection, Michigan Constitution. Finally, The Dog Pound argued that the district court did not properly address its claims for relief arising under the Due Process and Equal Protection clauses of the Michigan Constitution. However, because The Dog Pound raised no argument for this on appeal, the issue was waived. The Court of Appeals for the Sixth Circuit ultimately affirmed the district court’s grant of summary judgment in favor of the City of Monroe.

Dormant Commerce Clause, Equal Protection claims, Federal courts , ,