Tag: Federal 6th Circuit

Federal 6th Circuit dismisses defamation, other claims

by Kaitlin Heinen

Rondigo, LLC, Dolores Michaels v. Township of Richmond, Michigan
(Federal 6th Circuit Court of Appeals, March 28, 2013)

Rondigo, LLC is a Michigan limited liability company in Macomb County owned by Dolores Michaels. Rondigo and Michaels (the plaintiffs) have operated a farm in Richmond Township since 2004. In February 2006, the plaintiffs began composting on the farm and started constructing a driveway to assist with the composting. The Supervisor of Richmond Township, Gordon Furstenau, issued a stop-work order. The Township filed suit in state court in regards to the  driveway’s construction, which they claimed violated several zoning ordinances.

The Michigan Department of Agriculture also received complaints from neighbors about the farm’s odor. So the Department inspected the farm in October 2006 and ordered the plaintiffs to submit a compost operations plan by December 2006. The Department inspected the farm again in January 2007 and found that the plaintiffs had been stockpiling leaves. The Department advised them to remove the piles because runoff from the leaves could negatively impact groundwater in the area. The plaintiffs did not remove the piles, allegedly because they could not do so without the driveway. The Department sent a letter in April 2007, saying it would refer the matter to the Michigan Department of Environmental Quality (MDEQ) if the leaves were not removed. So the plaintiffs filed an emergency motion with the state court to remove the bar on the driveway’s construction. The court granted the motion, but the plaintiffs did not remove the leaves. So the matter was referred to the MDEQ.

In January 2008, the plaintiffs filed this suit against Richmond Township, Furstenau, Four Township Citizens’ Coalition, more than 20 Macomb County residents, 2 Department employees, and 3 MDEQ employees. “The plaintiffs asserted five claims: (1) a 42 U.S.C. § 1983 claim that the defendants violated the plaintiffs’ constitutional rights; (2) a 42 U.S.C. § 1985(3) claim that the defendants conspired to deprive the plaintiffs of their constitutional rights; (3) a 42 U.S.C. § 1986 claim that the defendants knowingly failed to prevent the violation of the plaintiffs’ constitutional rights; (4) a civil-conspiracy claim under Michigan state law; and (5) a defamation claim under Michigan state law.” The plaintiffs also asserted that the Township’s zoning ordinances were unconstitutionally vague. The district court dismissed all these claims, so the plaintiffs appealed to the 6th Circuit.

First, the plaintiffs argued that the district court erred in holding that “res judicata” bars their claims against the Township and Furstenau. Under Michigan law, “res judicata” bars an action if it involves the same parties as a prior action and if the matter could have been resolved in that prior action. The plaintiffs could have asserted their claim against the Township and Furstenau in state court. The plaintiffs did not pursue many of the claims they used as defenses against the Township’s complaint. The claims previously brought before the state court and the claims presented in this case arose from the same events. So “res judicata” precludes the plaintiffs from asserting their claims against the Township and Furstenau because these claims could have raised in a prior state action.

Next, the plaintiffs argued that the district court erred in dismissing their § 1983 claims against the Four Township’s Citizens’ Coalition and the Macomb County residents. The plaintiffs cannot maintain these claims against these defendants, however, because they are not state actors. Also, the plaintiffs did not appeal the dismissal of their § 1985(3) or § 1986 claims against these defendants. Therefore they waived these claims. The plaintiffs do appeal the dismissal of their state-law claims, but they failed to develop their argument against the dismissal. So the plaintiffs waived these claims as well.

Finally, the plaintiffs argued that the district court erred in dismissing their defamation and civil-conspiracy claims against the Department and MDEQ employees. In regards to the defamation claim, “the plaintiff must allege that the defendant made a false and defamatory statement about the plaintiff. But a qualified privilege protects the defendant from the defamation claim if the defendant had an interest or duty to make the statement to someone having a corresponding interest or duty.”  The plaintiffs alleged that the defendants made defamatory statements to state employees and to the plaintiffs’ neighbors. But these statements were made while investigating complaints about the farm. The defendants had an interest in communicating with their co-workers and the plaintiffs’ neighbors to facilitate the investigation. And the employees and neighbors had a shared interest in the investigation. So the plaintiffs did not overcome the qualified privilege, which protects the defendants from the plaintiffs’ defamation claims. Additionally, a civil-conspiracy claim cannot “exist in the air.” So the plaintiffs cannot maintain civil-conspiracy claims because there were no other claims left in this case.

The 6th Circuit Court affirmed the dismissal of the plaintiffs’ claims by the district court.

Federal courts, Procedural Issues , ,
Leave a Comment on Federal 6th Circuit dismisses defamation, other claims

“Auto graveyard” fails to exhaust state administrative remedies

by Kaitlin Heinen

Joseph P. Stanislaw v. Thetford Township
(Federal 6th Circuit Court of Appeals, February 20, 2013)

In July 1983, Joseph and Lorraine Stanislaw submitted a “vehicle dealer supplemental location license application” to sell used cars in Thetford Township, Michigan.  The township’s zoning ordinance required that automobile sales be conducted inside an enclosure, so the planning commission ordered the Stanislaws to construct such an enclosure in 30 days. In April 1984, a neighbor, Daniel Case, complained about the Stanislaws’ property. So Joseph Stanislaw appeared before the Planning Commission in May 1984 and August 1984 and received approval of a a plan that included an enclosing fence.  Thetford Township approved a new zoning ordinance in 1989, and the Stanislaws’ business was grandfathered in as a previously approved non-conforming use.

In September 2005, Case complained to the Township that the Stanislaws’ property was a junk yard. In 2004, Michigan passed an act that required car dealers to obtain “written verification from the appropriate governing or zoning authority that the established place of business meets all applicable municipal and zoning requirements” prior to any license renewal. So in December 2005, Lorraine Stanislaw submitted the necessary form to  renew the car dealership’s license. The Thetford Township Building Inspector, Mark Angus, inspected the property before signing. He refused to sign the Stanislaws’ forms concluding that the fence was in poor condition and that the property was “an auto graveyard.”

The Stanislaws submitted the license-renewal form to Michigan anyway. The state ordered the Stanislaws to fix their incomplete application by January 31, 2006. On January 24, 2006, the Stanislaws met with Angus, the Township Supervisor (Luther Hatchett) and the Police Chief (Thomas Kulcher). Lorraine Stanislaw testified that the Township said that they would revisit their application if the fence was restored and the cars were moved out of view. So Angus wrote a letter to the state asking for an extension to allow the Stanislaws more time to comply with the zoning ordinances. Joseph Stanislaw made the repairs to the fence. Hatchett sent Chief Kulcher to inspect the property.  Kulcher refused to sign the form because he found that vehicles were still sitting out front on the property.

In February 2006, the Planning Commission passed a motion, requiring the Stanislaws to construct a 6-foot-tall fence on the property.  The Stanislaws wanted to appeal this motion to the Zoning Board of Appeals, but Chief Kulcher supposedly told them that they could not. Kulcher denied saying this, testifying that he did not know anything about zoning appeals procedures. The Stanislaws instead filed this action in federal district court; however, the district court determined that it lacked subject-matter jurisdiction to consider the Stanislaws’ claim that the Thetford Township’s decision constituted a taking. This is because the Stanislaws did not give the state court the opportunity to adjudicate the issue of whether or not the State failed to provide just compensation.

The Stanislaws never appealed in state court Angus’ denial or the ZBA’s acceptance of Angus’ denial and order to construct a fence. The Stanislaws partly claim that they failed to the December 2005 ZBA vote because Chief Kulcher had told them that they could not. According to the federal district court, the Stanislaws provided no legal support that this would have excused them from their failure to appeal the ZBA’s decision. “Chief Kulcher is not familiar with appellate zoning procedures; however, the Stanislaws are quite familiar having dealt with the local zoning regulations on their property over the past two decades.”

The 6th Circuit Court agreed with the district court that the Stanislaws’ failed to exhaust their state administrative remedies.   “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation.” The Stanislaws argued that their claim was to be left alone to continue to do what they have been doing to earn a living for decades – not a taking of real estate, but rather their business interests.  The court held that the Stanislaws’ claim encompassed “some sort of ill-defined Fifth Amendment takings claim.” The Court disagreed with the assertion that the Stanislaws did not raise a takings claim; and agreed with the district court that the  claim was not ripe for federal review.

The Stanislaws’ other claims, according to the Court, were “somewhat jumbled and poorly explained” and “abstractly involved” procedural due process, substantive due process, and equal protection. They did not cite any case law that suggested a hearing would have been required for a decision to sign or not sign the license-approval form. Rather, the Stanislaws “had numerous hearings and opportunities over the course of two decades to remedy their non-conforming use of the property.” If a decision had been made without appropriate process, the correct recourse still would have been first to the state courts, not the federal courts. As for the equal protection claim,  The Stanislaws “failed to identify any similarly situated businesses who were actually treated differently,”  Thus the 6th Circuit Court affirmed the district court’s judgment.

Federal courts, Junkyards, Takings , , ,
Leave a Comment on “Auto graveyard” fails to exhaust state administrative remedies

Warren (MI) holiday display does not violate First/Fourteenth Amendments

by Kaitlin Heinen

Freedom from Religion Foundation, Inc. v. City of Warren, Michigan
(Federal 6th Circuit Court of Appeals, February 25, 2013)

For the past several years between Thanksgiving and New Year’s, the City of Warren, Michigan has put up a holiday display in its civic center, which includes both secular and religious symbols, such as a lighted tree, reindeer, wreaths, snowmen, a mailbox for Santa, a “Winter Welcome” sign, and a nativity scene. In 2010, the Freedom from Religion Foundation and one of its members, Douglas Marshall, wrote letters asking Mayor James Fouts to remove the nativity scene, which the City refused.  So in 2011, the Foundation instead asked the City to add the Foundation’s sign with the following words: “At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, [n]o heaven or hell. There is only our natural world, [r]eligion is but [m]yth and superstition [t]hat hardens hearts [a]nd enslaves minds…State/Church KEEP THEM SEPARATE.” The City refused again via a letter from Mayor Fouts, so the Foundation filed a lawsuit based on the freedom-from-establishment and free-speech guarantees of the First and Fourteenth Amendments. The district court rejected these claims, so the Foundation appealed to the U.S. 6th Circuit Court.

In the letter, Mayor Fouts wrote:

“When I allowed a display in city hall celebrating Ramadan, the Moslem holy season, I received many calls objecting but I would never have allowed a sign next to the Ramadan display mocking or ridiculing the Moslem religion. In my opinion, Freedom of Religion does not mean “Freedom Against or From Religion.” […] Your non-religion is not a recognized religion. Please don’t hide behind the cloak of non-religion as an excuse to abuse other recognized religions. You can’t make a negative into a positive. Clearly, your proposed display in effect would create considerable ill will among many people of all recognized faiths. During this holiday season, why don’t we try to accomplish the old adage of ‘Good will toward all’?”

To address this, the court turned to the First Amendment: “Congress shall make no law respecting an establishment of religion,” which prohibits government from favoring one religion over another or from favoring religion over irreligion. Two safe harbors have been identified in the past: “(1) a government may provide benefits to faith-based entities if the benefits are available to secular and religious entities alike; and (2) a government may invoke the divine through words and symbols if they have religious and historical meanings or faith-based and solemnizing effects, and in the process offer at most incidental benefits to any one faith or to faith in general.” A similar suit to this one from Pawtucket, Rhode Island (Lynch) had been brought before the courts previously, which held that “in the context of all components of the display…the display was ‘no more an advancement or endorsement of religion’ than the recognition of Christmas as a national holiday.” Five years later, County of Allegheny upheld a holiday display in front of a city hall that included a Christmas tree, a menorah, and a “salute to liberty” sign, but invalidated a nativity scene displayed by itself in the county courthouse. So this court concluded that “if the multi-purpose, multi-symbol Pawtucket and Allegheny County displays did not offend the Establishment Clause, then neither does the Warren display.”

Even so, the Foundation claimed that Warren’s rejection of its sign betrayed the City’s lack of religious neutrality. But the court reasoned that only one of the objects in the holiday display was religious. Some of the other objects were pagan symbols (i.e. the tree); some were connected to the winter season; and some embodied the holidays’ commercialism. So none of the secular symbols had roots in one faith or in faith in general. The variety of symbols in the Warren display reflected not just the demands of the First Amendment’s “Establishment Clause but also the demands of democracy in an increasingly pluralistic country.” This is “why some cities no longer have such displays, [and] why others have made a point of featuring symbols connected to other faiths.” After all, Warren did feature a Ramadan sign one year. “The key lesson of Lynch and Allegheny County is that a city does not run afoul of the Establishment Clause by including a [nativity scene] in a holiday display that contains secular and religious symbols.”

The Foundation also argued that the Mayor’s letter showed that the City’s purpose in putting up a holiday display was to advance religion. The Foundation focused their argument on the Mayor’s objection that the sign would “counter the religious tone of the Nativity Scene.” However, “[j]ust as a court may not isolate a creche in deciding whether a holiday display amounts to an impermissible establishment of religion…it also may not isolate two sentences in a letter to show what the City meant by a particular action.” The point of the letter was to illustrate that the sign would be offensive to religious and nonreligious alike. The Religion Clauses protect both the religious and nonreligious, and the Supreme Court has long permitted exhibits like the Warren holiday display. The Foundation pointed out as well that Warren located its display in the City’s principal government building, “[b]ut that does not doom the display.” The permitted Allegheny County display appeared on public property and was more faith-centered than this one.
The Foundation separately argued that the City violated its free-speech rights by its refusal to add the sign to the display. The First Amendment prohibits governments from making any law “abridging the freedom of speech” of individuals. The court held that this “guarantee prevents governments from restricting the speech of individuals; it does not empower individuals to abridge the speech of government.” Warren’s holiday display is government speech. “The City erected, maintained, took down and stored the display each year and covered the costs in doing so. The City reserved final approval of all components of the display to itself.” The City held full authority over what to include. “And it could choose to deny a message disparaging any one religion or religion in general.” Governments must still comply with the Establishment Clause, which is why Warren could not put up a holiday display that contained only a nativity scene.

Neither does the Warren display violate the Equal Protection Clause of the Fourteenth Amendment, which prohibits States and cities from denying individuals equal protection of the law. “To the extent the Foundation means to claim that the City’s government speech commemorating the holiday disparately treats its preferred message, the answer is: welcome to the crowd. Not everyone, we suspect, is happy with the City’s holiday display from one year to the next. And the Foundation, like everyone else, is free to urge the City to add or remove symbols from the display each year or to try to elect new officials to run the City.” After rejecting the above First Amendment and Fourteenth Amendment claims raised by the Foundation, the district court’s ruling was affirmed by the U.S. 6th Circuit Court.
Federal courts, First Amendment claims, Fourteenth Amendment ,
Leave a Comment on Warren (MI) holiday display does not violate First/Fourteenth Amendments

Regulation of inflatable devices at car dealership withstands First Amendment scrutiny

by Kaitlin Heinen

PHN Motors, LLC v. Medina Township
(Federal 6th Circuit Court of Appeals, September 4, 2012)

PHN Motors  et al. in northeastern Ohio filed a complaint that Medina Township violated their First Amendment right to free expression, their Fifth Amendment rights under the Due Process clause, and their Fourteenth Amendment rights under the Equal Protection Clause. The complaint arose from the interpretation and enforcement of Medina Township Zoning Resolution (MTZR) § 603E, which prohibited PHN Motors from displaying inflatable devices at their car dealership in a commercial district of Medina Township.

PHN Motors displayed 27 inflatables owned and rented by Scherba Industries, Inc. and has been cited several times by the Medina Township Zoning Inspector in violation of MTZR § 603E as a result. PHN Motors claimed that MTZR § 603E is unconstitutionally vague and infringes upon their First Amendment free speech rights. They also alleged that the regulation was “unevenly” enforced because it was only sometimes enforced against PHN Motors and because it was enforced unequally between commercial and residential districts.

The district court ruled in favor of Medina Township on all claims, so PHN Motors appealed  to the U.S. 6th Circuit Court. They challenged the district court’s dismissal of its First Amendment claims, its finding that MTZR § 603E is not unconstitutionally vague thus not violating any due process rights, and its conclusion that Medina Township’s enforcement of MTZR § 603E does not violate any equal protection rights.

In regards to their First Amendment claim, PHN Motors argued that MTZR § 603E consists of a content-based regulation of both commercial and non-commercial speech, which violates the protections for free speech under the First Amendment. To the contrary, Medina Township argues that the regulation is content-neutral, and that PHN Motors’ speech is only commercial in nature. The U.S. 6th Circuit Court found the MTZR § 603E is a content-neutral restriction upon speech. More specifically, MTZR § 603E prohibits certain elements the may be added to signs in Medina Township, such as “elements which revolve, rotate, whirl, spin, or otherwise make use of motion to attract attention” as well as signs that “contain or consist of flags, banners, posters, pennants, ribbons, streamers, spinners, balloons, and/or  any inflatable devices, search light, or other similar moving devices.” Medina Township’s purpose behind the regulation is for an improvement in the aesthetics of the township’s commercial areas and to minimize motorist distractions that can potentially be a safety hazard for passing traffic. The 6th circuit court found that the regulation does not, on its face, regulate speech based upon its content. Additionally, the free speech in question is commercial in nature, which is expressly for the furtherance of economic interests. Even though PHN Motors counter-argues that many of the inflatables displayed depict holiday characters, the court found that they are used nonetheless as a brand-recognition tool, with the intent of attracting business. Commercial speech is provided a lesser protection by the Constitution, for which intermediate scrutiny is the appropriate standard of review to be applied. Intermediate scrutiny requires that the government restriction on speech be narrowly tailored to further a substantial governmental interest. Aesthetics and safety both can be considered substantial governmental interests. In regards to aesthetics, Medina Township has expressed a substantial need to clean up the appearance of its commercial areas. As for safety, minimizing distractions for passing motorists is also substantial. The objectives of MTZR § 603E are “reasonable” and “not more extensive than necessary.” So the regulation is a reasonable means to achieve the ends of improved aesthetics and increases motorist safety. A ban on inflatables is not more extensive than necessary to advance these interests then. In conclusion, no First Amendment violations occurred.

Addressing whether MTZR § 603E is unconstitutionally vague, the 6th circuit court  began with the presumption that local zoning ordinances are valid and applied the standard of whether or not a person of ordinary intelligence would be able to determine what conduct is regulated or prohibited. PHN Motors argues that MTZR § 603E implies that movement is necessary to prohibit the use of inflatables, and that the enforcement of this regulation is inconsistent because it is left solely to the Zoning Inspector, who is unsupervised and enforcement is left to her discretion. The 6th circuit court ruled that the regulation was not vague, confusing, ambiguous, or inconsistent. Rather, the legislative intent behind the regulation was clear in regards to its ban on inflatables, the enforcement of the regulation does not violate PHN Motors’ due process rights, and a person of ordinary intelligence would know that inflatables are prohibited by the plain language used in the regulation. Considering the multiple references to a ban on devices that employ movement and “as inflatables of the type displayed by BDK are soft and often move in even the slightest breeze,” it can reasonably be concluded that all inflatables are banned. As for the Zoning Inspector, she and Medina Township have consistently upheld that inflatables are banned and her enforcement of this is overseen by the Board of Zoning Appeals. All in all, the court concluded that MTZR § 603E is not unconsitutionally vague.

Lastly, the court addressed PHN Motors’ Equal Protection claim in regards to the enforcement of the ban in commercial areas, but not residential. The court found that PHN Motors did not provide adequate evidence that property residing in residential districts is similarly situated to property residing in commercial districts. Medina Township, however, showed that property zoned for residential use is different than property zoned for commercial use in that residential districts draw significantly less traffic compared to commercial districts and that commercial districts are visitors’ first impression of the town. As a result, Medina Township has a greater interest in regulating the aesthetics and safety of these areas. PHN Motors also failed to show that the differential treatment lacks a rational connection to a legitimate government interest. The Zoning Inspector even testified that she does not enforce the inflatable ban in residential areas because MTZR § 603E does prohibit them there, since they are not for purposes of advertisement on residential property. The court concluded that no Equal Protection violations happened.

The ruling of the district court was affirmed.

Federal courts, First Amendment claims, Signs and billboards , , ,
Leave a Comment on Regulation of inflatable devices at car dealership withstands First Amendment scrutiny

Bridge company not a federal instrumentality; case can proceed in federal court

by Kaitlin Heinen

Commodities Export Company v. Detroit International Bridge Co.
(Federal 6th Circuit Court of Appeals, September 24, 2012)

In 1921, Congress gave the Detroit International Bridge Company’s predecessor permission to build and operate the Ambassador Bridge, which spans the Detroit River from Detroit, Michigan to Ontario, Canada. The Bridge Company is a private, not-for-profit corporation, incorporated under Michigan law. The Ambassador Bridge is also “the busiest commercial border crossing in North America,” where 26-30% of all trade between the United States and Canada occurs. Besides operating a compound for border inspections, the federal government has no involvement in the Bridge Company’s operations.

In the mid-1990s, the Bridge Company began work with the Michigan Department of Transportation on the “Ambassador Bridge/Gateway Project.”  The Bridge Company sought federal approval to build new toll plazas, a gas station, and a weigh station for trucks. In 2000, the Bridge Company asked the City of Detroit for zoning variances to complete these projects. The City denied the requests, but the Bridge Company went forward in the project. The City sued, but the Michigan Supreme Court held that the Bridge Company was a “federal instrumentality for the limited purpose of facilitating traffic over the Ambassador Bridge,” which meant that the Bridge Company was immune from the City of Detroit’s zoning regulations.

One year after the Michigan Supreme Court’s decision, Commodities Export Company filed suit against the City of Detroit and the United States in U.S. District Court, alleging that the Bridge Company had effected a regulatory taking by condemning and closing the only road that provided access to Commodities Export’s property. Commodities Export argued the City was liable for failing to protect them from the Bridge Company’s actions, and the United States was liable because it failed to control its federal instrumentality. Commodities Export also claimed that the Bridge Company is not a federal instrumentality because the United States has yet to declare it so. Commodities Export’s complaint asked for a mandatory injunction for the City to enforce its ordinances and the United States to declare whether or not the Bridge Company is a federal instrumentality.

Five months after the beginning of this suit, the Bridge Company sought permission to participate as amicus curiae, but was denied by the district court. Two months later, the Bridge Company sought permission then to intervene as a defendant. The Bridge Company claimed that the United States was not a proper party to the case, that the district court lacked jurisdiction over the United States, and that the case was the product of collusion between the City and Commodities Export. The United States filed a cross-claim against the Bridge Company in response.

The United States alleged that the Bridge Company had “misappropriated the status of ‘federal instrumentality.’” The United States also claimed that the Bridge Company “is not a federal instrumentality, of any kind, or any other type of arm, appendage, servant, or agent whatsoever of the United States,” and the Bridge Company’s representation as such is contrary to federal law. The Bridge Company filed a motion with counterclaims in response. The district court denied the Bridge Company’s motion and its motion for reconsideration, ordering the Bridge Company “to cease and desist from representing that [it is] any kind of federal instrumentality or other arm, appendage, or agency of the federal government, in state court, federal court, or elsewhere.”

One month later, Commodities Export voluntarily dismissed its remaining claims, citing a confidential settlement agreement with the Bridge Company. Dismissing the remaining claims would vacate the court’s federal instrumentality ruling, however. The United States objected. The Bridge Company also objected because a vacation of the ruling would allow the earlier opinions of the district court to stand, which were entered into without subject-matter jurisdiction. The district court granted Commodities Export’s dismissal but refused to vacate its earlier federal instrumentality ruling. The Bridge Company now appeals to the U.S. 6th Circuit Court.

In its determination of whether the federal courts have jurisdiction over the United States’ cross-claim, the U.S. 6th Circuit Court examined two issues: Article III’s case-or-controversy requirement and statutory subject-matter jurisdiction. “Under Article III [of the Constitution], the federal courts may exercise jurisdiction only if the parties have presented a live case or controversy…The United States easily clears this hurdle. Commodities Export haled the federal government into court…holding the United States liable for the wrongs of its instrumentalities.” The federal government faced the possibility of having to pay Commodities Export for the Bridge Company’s misconduct as a “federal instrumentality.” This causes a liability problem for the United States while the Bridge Company continues to claim that it is a federal instrumentality elsewhere, a problem which is certainly considered a controversy by the court. Also, the district court clearly had subject-matter jurisdiction. “‘The district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States.’ 28 U.S.C. § 1345. The United States brought this suit against the Bridge Company as soon as the Bridge Company intervened.” Therefore, federal courts have jurisdiction over the cross-claim in question.

The U.S. 6th Circuit Court next considered the impact of the Michigan Supreme Court’s federal instrumentality ruling. First, federal courts must defer state-court interpretation of state law. However, the Michigan Supreme Court dealt with a federal issue, arising under federal law that could cause liabilities for the federal government. “The effect of the Michigan Supreme Court’s holding was to prevent a city from enforcing its own zoning ordinance,” under the condition that the Bridge Company was a federal instrumentality. But the question of whether the Bridge Company is a federal instrumentality constitutes federal common law, which is appropriate for reconsideration, i.e., hearing the issues afresh, by the federal courts. Nevertheless after careful examination of federal instrumentality case law, the U.S. 6th Circuit Court reached the same conclusions as the lower courts.

The U.S. 6th Circuit Court ruled that the federal courts have jurisdiction over the United States’ cross-claim. No deference is owed the Michigan Supreme Court’s interpretation of federal common law. However, the U.S. district court correctly held the Detroit International Bridge Company is not a federal instrumentality. Likewise, the district court did not err in granting Commodities Export a voluntary dismissal motion without vacating the federal-instrumentality ruling in favor of the United States. The U.S. 6th Circuit Court affirmed the district court’s judgment.

Federal courts, Michigan courts, Transportation ,
Leave a Comment on Bridge company not a federal instrumentality; case can proceed in federal court

City council corruption does not give rise to Constitutional claims in rezoning denial

1 Comment

by Kaitlin Heinen

EJS Properties, LLC v. City of Toledo; Robert McCloskey
(Federal 6th Circuit Court of Appeals, September 5, 2012)

In April of 2002, EJS Properties entered into a conditional agreement with Pilkington Corporation to purchase 20 acres of a 43-acre lot that Pilkington owned, which included a technical center that EJS intended to convert into a charter school. This agreement was expressly contingent on obtaining a zoning change from industrial to one that could contain a school. EJS also entered into a non-conditional lease agreement with Lake Erie Academy to open the charter school. In May 2002, EJS filed a re-zoning petition with the Toledo-Lucas County Plan Commission. The Plan Commission recommended the re-zoning and passed the request onto the Toledo City Council. The City Council’s Zoning and Planning Commission held a public hearing on July 17, 2002, where everyone agreed to re-zone only the portion of Pilkington’s lot that would be needed for the school. The Committee voted unanimously to recommend the request for full vote by the Council, which was placed on the City Council’s agenda for August 13, 2002. During this re-zoning process, EJS had obtained an early-start building permit to begin $200,000 worth of repairs and improvements on the technical center.

Prior to August 13, Pilkington executives John Keil and Randy Berg had a lunch meeting with City Council member Robert McCloskey, who represented the district containing the Pilkington lot. McCloskey asked Pilkington to donate $100,000 to assist local retirees at the community center—Keil and Berg declined. At the next council meeting, member Peter Gerken moved to table consideration of the re-zoning for two weeks. EJS claims that McCloskey lobbied the other members to reverse their vote, but when he could not get enough to defeat the measure, he asked Gerken to table the matter. (McCloskey was a former Pilkington union negotiator, who had helped negotiate a labor agreement that capped healthcare benefits for retirees, for which he faced significant criticism upon being elected to City Council.) McCloskey then proceeded to call Keil, Berg, and Erich Speckin, the owner of EJS, and left questionable voicemails that sought the money for the retirement center in connection with the pending re-zoning. On August 22, Keil sent a letter to all of the City Council members and Mayor, seeking support for the re-zoning request and to consider the unrelated issues between Pilkington and McCloskey: “Such issues have the potential for exploitation to the detriment of the zoning request.” Pilkington and EJS never reported McCloskey’s request to the police.

On August 27, 2002, the City Council voted 7-4 against re-zoning (4 members had changed their vote from committee, including McCloskey). Only one member testified that he had been approached by McCloskey, who discouraged voting for the ordinance. EJS did not appeal the denial. Two months later, Toledo voters passed a levy, mandating the building of two new middle schools on the east side of Toledo. Toledo Public Schools (TPS) won an eminent domain lawsuit against Pilkington in November 2003 for the entire 43-acre lot. The Plan Commission, the City Council’s Zoning and Planning Committee, and the City Council approved a re-zoning in January 2004 to build a TPS middle school there.

EJS filed a complaint against the City and McCloskey in May 2004 for deprivation of substantive and procedural due process, deprivation of equal protection, deprivation of its property rights and its First Amendment right to petition in violation of 42 U.S.C.A. §1983, and wrongful interference with a business expectation in violation of state law. The district court granted summary judgment to the City and McCloskey on EJS’ constitutional claims. The court denied McCloskey summary judgment on EJS’ tortious interference claim (the district court actually stayed legal proceedings at one point to see the outcome of McCloskey’s 2006 indictment on federal criminal corruption charges, for which he pleaded guilty and received a 27-month prison sentence). After first dismissing EJS’ appeal for jurisdictional reasons, EJS dropped the state-law claim for wrongful interference. Then the U.S. 6th Circuit Court was able to hear the case.

In arguing for the deprivation of substantive and procedural due process, EJS argues that it had property interests at stake in the ordinance for re-zoning, in its contracts, and in its early-start building permit. The City Council never approved the re-zoning ordinance; rather, the City’s Planning Commission and Committee did. The 6th Circuit found that the only way for EJS to have a property interest in the re-zoning ordinance then is if the City Council lacked the discretion to approve it. However, the Toledo Municipal Code’s use of the word ‘may,’ grants the City Council discretionary authority over zoning regulation. Therefore EJS had no property interest in the re-zoning ordinance. Absent a property interest, EJS had no recognizable rights subject to due process protections.  As for its contracts, EJS argues that the contract options created property interests subject to due process protections; however, the purchase agreement explicitly states that “prior to the Closing Date, [EJS] has no title or estate in the Property…and will not claim any such interest…over any part of the Property.” The contract was explicitly contingent upon obtaining a re-zoning for the property, which did not happen–therefore, EJS possesses no interest in the property as a result of its contract. Finally, in regards to the early-start building permit, the permit did not entitle EJS to a re-zoning change, and the improvement work done on the building was “performed at the applicant’s own risk,” according to Toledo Municipal Code.

EJS also argued that it possessed two liberty interests that were violated: 1) a liberty interest in a government decision free from corruption and 2) a liberty interest in engaging in business contracts without unlawful interference. As to the first claim, corruption only affects procedural due process, which EJS could not be deprived of since the court ruled that EJS never possessed a  property interest of any kind. The court rejected the second claim on the same grounds as its ruling on property interests in relation to EJS’ contracts, holding that the defendants did not interfere with EJS’ right to contract because the contracts were contingent on discretionary zoning.  Additionally, the Supreme Court of the United States has upheld only a short list of liberty interests, and the circuit court here could not find any support for a liberty interest in a discretionary government decision free from corruption or unlawful interference.

In addition, EJS argued that corrupt zoning decisions “shock the conscience” and violate substantive due process as a result, regardless of whether or not a property or liberty interest is at stake. However, the court dismissed this claim, stating, “Our prior precedent makes clear that in the context of a discretionary zoning decision, government action will not shock the conscience unless the arbitrary and capricious action touches on a protectable interest.” With neither a property nor a liberty interest at stake, EJS had no merits for this claim. Even if EJS had a property or liberty interest, the court reasoned that “although we can condemn McCloskey for his misconduct, we simply cannot say that his behavior is so shocking as to shake the foundations of this country,” which was the original purpose for establishing the “shocks the conscience” standard.

Finally, EJS’ last two claims involved its right to petition and its right to equal protection. The court conceded that seeking redress from a government official qualifies as petitioning, for which a zoning request also qualifies. Specifically in regards to its right to petition, EJS argued that its right to meaningful access was violated. The court countered that EJS was equating meaningful access with meaningful process. Process is associated with violations of substantive or procedural due process, which was already decided to not have occurred in this case because EJS lacked both a property and a liberty interest. As for equal protection, the court ruled that EJS and TPS were not similarly situated, which does not grant adequate merits for an equal protection claim. Unlike EJS, TPS owned the relevant property at the time of their re-zoning request. TPS also intended to use the entirety of the property rather than part of it. And TPS planned to build a financially stable public school rather than a private school. These are rational bases for the City Council to have treated EJS differently than TPS.

Having dismissed all of EJS’ constitutional claims, the U.S. 6th Circuit Court upheld the district court’s decision to grant summary judgment to the defendants.

Due Process, Equal Protection claims, Federal courts, Rezoning , , , , ,
1 Comment on City council corruption does not give rise to Constitutional claims in rezoning denial

Retrial of Equal Protection “class-of-one” claim proper when city’s size cap limitation ended landowner’s deal with Wal-Mart

Gary Taylor

by Gary Taylor

Loesel, et al, v. City of Frankenmuth (MI)
(Federal 6th Circuit Court of Appeals, August 20, 2012)

Plaintiffs, (Ronald Loesel and others), are the co-owners of a 37-acre tract of land that borders Main Street just outside the Frankenmuth city limits. They inherited the property from their mother when she died in 2003. A 2003 property-tax appraisal valued the land at $95,000.  Although not within the City’s boundaries, the property is within the urban growth area that was established jointly by the City and the Township in 1985 to confine and guide urban growth in order to retain the character of the Frankenmuth community. The City and Township first adopted the Joint Growth Management Plan (the Plan) in 1985, and amended the plan in 2005.  The Loesels’ property lies within an urban limit line established by the Plan to “[p]romote compact residential and commercial development in and near the city limits. To implement the Plan, the western portion of the Loesels’ property along Main Street, approximately 15 acres in size, was zoned as Commercial Local Planned Unit Development (CL-PUD), with the remaining 22 acres to the east designated as Residential Planned Unit Development (R-PUD). Permitted uses for CLPUD-zoned properties include developments that “provide principally for sale of goods and services to meet the general needs of the residents of the Frankenmuth community, including but not limited to grocery, department, drug and hardware stores, financial institutions, professional and personal service offices and transportation sale and service businesses.”

In 2004, the Loesels were approached by Wal-Mart, which was interested in purchasing the property because the western portion abuts Main Street and is commercially zoned.  In late May 2005 the Loesels entered into a conditional agreement to sell 23.55 acres to Wal-Mart for $2,943,750.  Under the agreement Wal-Mart had 180 days to determine the feasibility of the project and pull out without penalty.

Forces within city government and citizens learned of the agreement and marshaled opposition.  in August 2005 the city council adopted a 120-day moratorium on the construction of any facility with an area of 70,000 or more.  The city manager recognized that the commercial zoning classification of the property would allow Wal-Mart to build, but explored the possibility of a permanent ordinance limiting the square footage of commercial establishments, including  the potential legal liability of adopting such an ordinance.  A business group supported the size cap, but only on the north side of the city (Loesels’ property), not in other location (their properties).  A version of the size cap limitation (65,000 square feet) was settled on that only applied in the CL-PUD district, effectively limiting its reach to Loesels’ property and a handful of much smaller parcels.  It was adopted on December 7, 2005.  Wal-Mart pulled out of its agreement with the Loesels, citing the 65,000 square foot restriction.

The Loesels sued the city under 42 U.S.C. § 1983, alleging that the City’s 65,000-square-foot zoning restriction violated their rights under the Equal Protection, Due Process, Privileges or Immunities, and Commerce Clauses of the U.S. Constitution. As a remedy, they sought $4 million in compensatory damages (the sale price of the property under an amended agreement reached by Loesels and the city prior to Wal-Mart pulling out).  The district court granted summary judgment in favor of the city on all claims but Equal Protection.  The Equal Protection claim was allowed to go forward to a jury trial, where the jury found in favor of the Loesels and awarded damages of $3.6 million.  The city appealed, arguing that the district court should have awarded judgment as a matter of law in favor of the city on the Equal Protection claim.

“The Equal Protection Clause prohibits discrimination by government which either burdens a fundamental right, targets a suspect class, or intentionally treats one differently than others similarly situated without any rational basis for the difference.”  Loesels pursued their claim under the “class-of-one” theory which, although recognized by the US Supreme Court in 2000, is generally viewed skeptically for their potential to turn into an exercise in which juries are second-guessing the legislative process.  To prove a class-of-one case the Loesels bear the “heavy burden” of proving that they were treated differently than those similarly situated in all material respects.  In addition, they must show that the adverse treatment they experienced

was so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government’s actions were irrational. This showing is made either by negativing every conceivable reason for the government’s actions or by demonstrating that the actions were motivated by animus or ill-will.

Similarly situated.  To determine whether the Loesels were treated differently than those similarly situated in all material respects, the 6th Circuit determined that the proper comparison is between the Loesels’ property and the properties on which two other similarly-sized commercial establishments sit.  The Court rejected the city’s arguments that the properties were not similarly situated because of differing zoning classifications, because of the fact that the Loesels’ property was the only one of the three that was vacant, and because the traffic capacities of the serving roads were different (road capacity could have been addressed by means other than a size cap).  The 6th Circuit concluded that  district court did not err in denying the City’s renewed motion for judgment as a matter of law on this issue.

No-conceivable basis theory. The city’s expert testified with several reasons why the size cap was only appropriate for properties in the CL-PUD district, which the city asserted provided the rational basis for its decision; however, the Court pointed out that the jury rejected the expert’s testimony on a number of contentions, and that the city manager himself contradicted the expert’s opinions.  The Court concluded that a genuine dispute exists as to whether the ordinance lacked a rational basis.  Denial of the city’s motion for judgment as a matter of law was again proper.

Animus or ill-will.  On this claim the city prevailed.  The Court noted that the animus must be directed toward the Loesels personally to be actionable.  City officials’ animus was not directed at the Loesels, but rather the Wal-Mart project itself.  Judgment as a matter of law for the city on this count should have been granted.

Because the record did not reflect which theory the jury used to find the city liable, the Court vacated the judgment and remanded it back to the district court for a new trial, excluding “animus or ill-will” as possible grounds for a verdict favoring the Loesels.

Equal Protection claims, Federal courts , , , ,
Leave a Comment on Retrial of Equal Protection “class-of-one” claim proper when city’s size cap limitation ended landowner’s deal with Wal-Mart

Court must consider evidence of non-receipt of certified letters in due process claim

by Kaitlin Heinen

Alford Cotton v. City of Cincinnati
(United States 6th Circuit Court of Appeals, August 21, 2012)

Alford and Rubbie Cotton bought a building, with address 1673 Westwood Avenue, in 2002, but had allowed it to deteriorate over the next seven years. In 2009, city inspectors reported that the building was empty, had no heat or running water, was infested with rodents, and was littered with human excrement and drug paraphernalia. The City of Cincinnati sought to declare the building a public nuisance. Before this can happen, though, the Cincinnati Municipal Code requires the City to hold a public hearing and that the City send notification of the hearing to the building’s owners via certified mail. After consulting the county land records, the City found only the Cottons listed as the owners of the building and their residential address was listed as 1673 Westwood Avenue—the same address as the vacant, run-down building in question. The City proceeded to send notice to 1673 Westwood, posted a notice on the building, and published a notice in the City’s Bulletin for two weeks, in accordance with the Cincinnati Municipal Code.

The Cottons did not attend the hearing held on October 30, 2009, where a building inspector testified that the building violated numerous code provisions; the police department testified that the building is a safety concern as it frequently harbors vagrants; the fire department testified that the building is a fire hazard; and a certified property manager testified that building’s condition had lowered property values in the neighborhood. Based on this evidence, the City declared the building a public nuisance and ordered its demolition, for which the Cottons would foot the bill. The City mailed a letter to the Cottons–again at the Westwood Avenue address–informing them of the hearing’s outcome. The City hired private contractors for the demolition and issued them a permit, which was completed in May and June 2010.

“After the dust settled,” the Cottons filed suit against the City and the private suit in state court, alleging their Fourteenth Amendment due process rights were violated, in that the City did not provide adequate notice of nor obtain a warrant for the demolition of their building. The Cottons also claimed trespass and sought a writ of mandamus to force the City to institute eminent domain procedures for the taking of their building. On appeal before the district court, the Cottons cited the U.S. Supreme Court decision in Jones v. Flowers, which held that if the initially mailed notice is unclaimed, the City must take additional steps to provide notice to the property owner. The district court granted the City’s request to take judicial notice that the letters were mailed and held that the letters mailed by the City satisfied Fourteenth Amendment due process requirements. The Cottons objected in federal court, urging the U.S. 6th Circuit Court of Appeals to take judicial notice of the public records that show that the letters were returned as undelivered.

The City did not offer an explanation for why the court should take judicial notice of public records that show the letters were mailed but not public records that show the letters were returned as undelivered. “To respect the one form of judicial notice but not the other creates a half truth, and an important one at that.” (Fed. R. Evid. 201(b).  As a result, the 6th Circuit vacated the district court’s judgment and remanded the case back to the district court to decide the Cottons’ case in  consideration of all relevant public records.

Due Process, Federal courts, Notice , ,
Leave a Comment on Court must consider evidence of non-receipt of certified letters in due process claim

6th Circuit provides good overview of the state of cell tower regulation in the federal courts on its way to its own decison

Gary Taylor

by Gary Taylor

T-Mobile Central v. West Bloomfield Charter Township
(Federal Sixth Circuit Court of Appeals, August 21, 2012.)

T-Mobile proposed to build a cellular tower in an area of West Bloomfield Township, Michigan, that had a gap in coverage. The facility contained an existing 50-foot pole, which T-Mobile wanted to replace with a 90-foot pole disguised to look like a pine tree with antennas fashioned as branches (a monopine).  The site was not located within the two cellular tower overlay zones identified on the Township’s zoning map where such facilities are permitted by right.  T-Mobile thus sought a special use permit.  At the hearing, T-Mobile presented testimony and evidence demonstrating its need to fill a gap in coverage, justification for the selection of that site and the height of the pole, an explanation of how the facility would provide for collocating equipment for other cellular carriers, and a representation that the facility would have a minimal visual impact. Several members of the public  spoke in opposition to granting the special land use. The areas to the north, east, and west of the proposed site were residential subdivisions, and there was a daycare center to the south. At the hearing, the Township Planning Commission passed a motion to recommend to the Board of Trustees of the Township that T-Mobile’s application should be denied.  At the Trustees’ hearing T-Mobile contended that 90 feet would be the minimum height necessary to collocate two other carriers.  More people spoke in opposition.  The Township denied T-Mobile’s application. T-Mobile brought suit, alleging that the denial of the application violated the Telecommunications Act, 47 U.S.C. § 332 et seq. The district court granted partial summary judgment in favor of T-Mobile, and the Township appealed to the 6th Circuit Court of Appeals.

47 U.S.C. § 332(c)(7)(B)(iii) provides: “Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.”  The Court of Appeals found the relevant question to be “substantial evidence of what?”  In other words, if there is a denial of an application to build a wireless facility, what must the substantial evidence in the record show in order to avoid a violation of the federal code? The Court chose to follow a decision from the 9th Circuit, stating that this standard “requires a determination whether the zoning decision at issue is supported by substantial evidence in the context of applicable state and local law.” The Court “may not overturn the Board’s decision on ‘substantial evidence’ grounds if that decision is authorized by applicable local regulations and supported by a reasonable amount of evidence.”  Nonetheless, the 6th Circuit proceeded to find that none of the five reasons for denial stated by the Board of Trustees were supported by substantial evidence; rather, each was simply an expression of NIMBYism or lay opinion contradicted by expert opinion.

47 U.S.C. § 332(c)(7)(B)(i)(II),  provides that “[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”  Does the denial of a single application from T-Mobile constitute an effective prohibition? This was a question of first impression for the 6th Circuit.  It again looked to other federal circuit courts for guidance.  The 4th Circuit has held that only a general, blanket ban on the construction of all new wireless facilities would constitute an impermissible prohibition of wireless services; however, the large majority of circuits have rejected this approach.  The 6th Circuit rejected it as well, stating that such a reading makes the “effective prohibition” language meaningless if an it can only be triggered by an actual ban.  The 6th Circuit chose instead to follow the two-part test of the 9th Circuit: there must be (1) a showing of a ‘significant gap’ in service coverage and (2) some inquiry into the feasibility of alternative facilities or site locations.”

As for the first part of this test – whether whether the “significant gap” in service focuses on the coverage of the applicant provider (T-Mobile in this case) or whether service by any other provider (Verizon, AT&T, Sprint, etc.) is sufficient – the 6th Circuit again found a split among federal circuit courts.  The 2nd,  3rd and 4th Circuits have held that no “significant gap” exists if any “one provider” is able to serve the gap area in question. On the other hand, the 1st and 9th Circuits have rejected the “one provider” rule and adopted a standard that considers whether “a provider is prevented from filling a significant gap in its own service coverage.  In 2009, the FCC issued a Declaratory Ruling that effectively supported the approach of the First and Ninth Circuits.  The 6th Circuit chose to follow the FCC’s lead.  Finding that T-Mobile’s position that it suffered a significant gap in coverage to be well-supported by documentary evidence and testimony from RF engineers,  it concluded that the denial of T-Mobile’s application “prevented [T-Mobile] from filling a significant gap in its own service coverage.”

As for the second part of the test (alternative facilities) The 2nd, 3rd and 9th Circuits require the provider to show that ‘‘the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve.’’  The 1st and 7th Circuits, by contrast, require a showing that there are ‘‘no alternative sites which would solve the problem.’’  The 6th Circuit chose to fall in line with the 2nd, 3rd and 9th “It is considerably more flexible than the ‘no viable alternatives’ standard, as [under the other standard] a carrier could endlessly have to search for different, marginally better alternatives. Indeed, in this case the Township would have had T-Mobile search for alternatives indefinitely.”  The Court found that T-Mobile satisfied its burden under the “least intrusive” standard, having investigated a number of other specific options but determining they would have been “significantly more intrusive to the values of the community.”

Having determined that the Township’s decision had the “the effect of prohibiting the provision of personal wireless services,” thus violating 47 U.S.C. § 332(c)(7)(B)(i)(II), the 6th Circuit affirmed the decision of the district court.

cell towers, Federal courts , ,
Leave a Comment on 6th Circuit provides good overview of the state of cell tower regulation in the federal courts on its way to its own decison

Landowner prevails on First Amendment retailiation claim for Township’s stop work order

Gary Taylor

by Victoria Heldt

George T. Paeth, Margaret C. Paeth v. Worth Township (Michigan)
(United States Sixth Circuit Court of Appeals, June 8, 2012)

George and Margaret Paeth own a house in Worth Township, Michigan that was not in compliance with the Township’s five-foot setback requirement when they purchased it in 1998.  They made plans to add on to the first floor and replace the roof, which would expand the house’s footprint in the northeast and northwest corners.  After communication with Barbara Cutcher, Worth Township’s zoning administrator, the property was surveyed.  The Paeths received a land use permit from the Township in April 1999 and a building permit from the County building department in June 1999.  In 2002 the Township formed a building department, which assumed the responsibilities of the County’s building department.  Cutcher became the Township’s zoning and building administrator.

In June 2004, Cutcher sent a letter to the Paeths informing them that their house was not in compliance with the setback ordinance.  It instructed them to contact zoning administrator Lynn Laughlin to address the “serious problem.”  The Paeths submitted a variance application and Laughlin requested another property survey.  The survey showed that the 1999 survey underestimated the distance between the house and the property line.  The Township claimed that, due to the survey error, Cutcher relied on false information when she originally granted the permit.  The Zoning Board of Appeals (ZBA) voted to deny the variance, meaning the Paeths would have to correct the variance by removing portions of the house.

The matter was taken to the circuit court on three different occasions.  The circuit court eventually reversed the decision of the ZBA and granted the variance to the Paeths.  The Township appealed the case to the Michigan Court of Appeals, which dismissed the claim for lack of jurisdiction in July 2007.  In November 2007 Cutcher posted a stop work order on the Paeth’s property until they obtained a new permit.  The Paeths did not receive the required hearing before the order was posted.

Cutcher claimed that, had the Paeths requested a new permit, the matter would have been resolved quickly.  Instead, the Paeths contacted the State of Michigan Office of Local Government and Consumer Services to determine whether their 2003 permit was valid.  It concluded that it was and that the Paeths could continue work so long as their activities complied with code.  Cutcher wrote the Paeths a letter confirming the valid permit but insisting that she be allowed to inspect the property for code compliance before the Paeths complete any more work on their property.  The Paeths failed to contact her and the stop work order remained on the property until October when it was removed pursuant to a district court order.

In September 2008 the Paeths sued the Township in federal district court on four counts:  (1) violation of their First Amendment rights when Cutcher and the Township retaliated against them for appealing the ZBA’s variance decision; (2) violation of the Equal Protection Clause; (3) violation of substantive and procedural due process because of the issuance of the stop work order without notice or an opportunity to respond; and (4) a request for mandamus and superintending control.  After a five day trial, the court ruled in favor of the Paeths on the First Amendment claim.  It ruled in favor of the Township on count two and on the substantive due process claim in count three.  In regards to the procedural due process claim, the court also ruled in favor of the Paeths.  It noted that the Paeths have “a property interest in continuing construction on their home” and that the Township’s stop work order without the necessary prior notice deprived them of it.  It concluded that the stop work order was contrary to state law and constituted a procedural due process violation.  The court determined count four to be moot.  The Paeths were granted a little more than $200,000 in attorneys fees.

The Township appealed the procedural due process violation.  The Court noted that it is not necessary to determine if the Paeths had a property interest in the construction to determine if a procedural due process violation exists.  Procedural due process claims do not answer to local statutes or ordinances; rather a federal framework consisting of three factors must be considered to make the determination.   The Court analyzed (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government’s interest.

The Court determined there was not a due process violation.  The Paeths were given sufficient due process since the order came with instructions for how to apply for a new permit.  The process to apply for a new permit is relatively simple and the Paeths would have been only mildly inconvenienced.  In addition, the Government’s interest in the matter was fairly significant.  A fair amount of time had passed since the property was last inspected and evidence existed that the house was not in compliance with code.  The Township had a rightful interest in preventing any work that might further the property’s non-compliance.  The Court reversed the ruling and vacated the damages associated with it.

The Township also appealed the First Amendment ruling, arguing that the evidence was insufficient to prove a violation took place.  It purported that the “adverse action” and “causal connection between the action and protected conduct” requirements of a retaliation claim were not met.  The Court disagreed, concluding that the Township’s issuance of the stop work order and failure to provide notice constituted adverse actions.  Furthermore, sufficient evidence was presented to show a causal connection between the adverse action and the right to appeal the ZBA’s decision.  Testimonies from Cutcher and a member of the ZBA supported the connection.  The Court affirmed the lower court’s ruling on this claim as well as the damages for the violation and the attorneys fees.

Due Process, Federal courts, First Amendment claims, Uncategorized, Zoning enforcement , , , ,
Leave a Comment on Landowner prevails on First Amendment retailiation claim for Township’s stop work order

Subscribe

Archives

Categories

Tags

Admin Menu