Tag: Federal 6th Circuit

Filling sinkhole not an allowable activity under TNC conservation easement

Gary Taylor

by Victoria Heldt

The Nature Conservancy v. Larry and Marsha K. Sims
(United States Sixth Circuit Court of Appeals, May 21, 2012)

In December 2001 the Sims purchased a 100-acre farm from The Nature Conservancy, Inc. (TNC) in Kentucky.  The real estate agreement included an easement to “assure that the Protected Property will be retained forever substantially undisturbed in its natural condition and to prevent any use…that will significantly impair or interfere with the Conservation Values of the Protected Property.”  The easement also conveyed to the TNC a right to inspect the property annually to ensure the Sims comply with the easement.  Without the easement, the property was appraised at $260,400 and with the easement it was appraised at $60,000.  The Sims paid $60,084 for the property in addition to a $244,939 tax-deductible charitable gift to TNC.

The property consisted of two sections, one being a residential/agricultural area to be used for the Sims’ residence and for commercial agricultural uses.  The remaining portion of the land, known as Henslow Sparrow, was to be used only for grazing livestock and producing hay.  A detailed description of the condition of the property was included in the agreement.  In January 2005 TNC inspected the property and found several instances of non-compliance with the easement.  One such non-compliance was the fact that the Sims altered the topography on the property by excavating and re-grading a sinkhole behind their residence.  This action violated Section 2.5 of the easement.  The remaining instances of non-compliance were remedied by the Sims and the allegations dropped.

TNC’s expert geologist was permitted to survey the sinkhole and determine the contours of the ground before the sinkhole was filled.  The district court granted summary judgment in favor of the Conservancy, determining that the Sims did indeed violate the easement.  It noted that, although the Sims were allowed to make some changes to the property in relation to authorized activities, filling a sinkhole with an estimated 6,269 cubic yards of soil was not one of them.  In a later judgment, the court awarded the Conservancy $77,337.50 in attorneys’ fees and $18,9902.33 in expenses.  Upon examination of the hours billed to TNC, the court subsequently reduced the amount awarded to TNC by $11,774.  The Sims appealed both judgments.

In regards to the violation of the easement, the Court ruled that the district court was correct in determining that the Sims were in violation.  Section 2.5 of the easement  states “there shall be no ditching; draining; diking; filling; excavating; removal of topsoil, sand, gravel, rock, or other materials; or any change in the topography of the land in any manner except in conjunction with activities otherwise specifically authorized herein.”  Filling the sinkhole clearly violated this condition.

The Sims argued that they are allowed to “enhance their agricultural usage” of the land under Section 3.2 of the easement and in filling the sinkhole they were improving the farming process.  Furthermore, they pointed to the phrase within Section 2.5 that allowed for altering the land “in conjunction with activities otherwise specifically authorized herein” in support of their argument.  They asserted that farming is an authorized activity and thus they are allowed to fill the sinkhole to improve the agricultural use.  The Court rejected this argument, stating that filling is not a normal precursor to farming activities.  In addition, “filling” is strictly prohibited within Section 2.5.

Next, the Sims argued that Section 3.7 gives them the right to “dig wells” and “create ponds” and they should therefore be allowed to place the excavated dirt in a sinkhole on their land.  The Court dismissed this argument as unreasonable since it would allow the Sims to breach one provision of the easement in order to enjoy another.  The Sims further argued that the status of the depression as a “sinkhole” was not disclosed to them before they filled.  Regardless, the Court noted that “filling” is explicitly forbidden.  The Sims claimed they would not have built their residence so close to the sinkhole had they known they weren’t allowed to fill it.  The Court determined it was the builder’s task to recognize limitations of the property in regards to the construction of a home.

Finally, the Sims challenged the reasonableness of the amount of damages awarded to TNC.  The Court noted that the district court took into account all the necessary factors in determining the amount awarded.  It carefully examined the record of hours billed and the breakdown of the hours in its decision-making process.  The Court determined the award to be reasonable.  It affirmed the district court’s decision on both judgments.

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City’s attempted extension of water service violated federal law protecting rural water districts

Gary Taylor 1 Comment

by Gary Taylor

Ross County Water Company, Inc., v. City of Chillicothe (OH)
(Federal 6th Circuit Court of Appeals, November 30, 2011)

Ross County Water Company (RCWC) is a non-profit, member-owned, water company incorporated in 1970 under Ohio law. Its members are limited to those who are the record owners of the property served by the water company and to whom the company’s board of trustees has issued a certificate of membership. RCWC serves nearly 13,000 residential and business customers through approximately one thousand miles of pipeline. To finance the construction, maintenance, and extension of its water works system, RCWC borrowed nearly $10.6 million from the United States Department of Agriculture.

The dispute centered around the extension of water service to several commercial and industrial properties approximately two miles north of the municipal boundary of the city of Chillicothe (City).  In 1974, RCWC installed a ten-inch waterline running east to west slightly north of Delano Road that bisects the disputed area which enabled RCWC to provide water service to to a mobile home park.  In 2000, the owner of the mobile home park granted RCWC easements to add additional waterlines to serve other properties owned by the same company.  A sixteen-inch water line was installed in 2003.  RCWC also installed other lines bordering Delano Road, State Route 23, and Hospital Road.

in 2008 the City council passed an ordinance approving plans to develop waterlines north of Delano Road, in the disputed area and cris-crossing RCWC lines.  The Ohio Environmental Protection Agency approved the plans, but RCWC obtained a preliminary junction in Federal District Court for Southern Ohio, claiming protection under 7 U.S.C. § 1926(b) – that portion of the Agricultural Act of 1961 that grants U.S.D.A. authority to extend loans for rural water service and protects loan recipients from competition under some circumstances.  The District Court held that RCWC is entitled to the protections afforded by 7 U.S.C. § 1926(b) and enjoined the City from taking any further action to supply water to the disputed area. The City appealed.

Congress enacted the Agricultural Act of 1961 to “preserve and protect rural farm life.” 7 U.S.C. § 1926(a), granted the Secretary of Agriculture authority to “‘extend loans to certain associations providing water service . . . to rural residents,’” while 7 U.S.C. § 1926(b), was enacted to to safeguard the financial viability of rural associations and these loans. Section 1926(b) provides: “The service provided or made available through any such association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan.”

The 6th Circuit Court of Appeals began by recognizing that the intent of this provision is to prevent “local governments from expanding into a rural water association’s area and stealing its customers.” Thus, the provision “should be given a liberal interpretation that protects rural water associations indebted to the U.S.D.A. from municipal encroachment.” To establish that it is entitled to protection, RCWC must show that (1) it is an ‘association’ within the meaning of the Act; (2) it has a qualifying outstanding loan obligation; and (3) it has provided or made service available in the disputed area.  The bulk of the litigation centered on the third prong.   To satisfy this, RCWC must demonstrate (1) it has “pipes in the ground” that provide service within or adjacent to the disputed area, and that (2) it has the legal right under state law to serve the disputed area.

Pipes in the ground.  The Court observed that “pipes in the ground” means that waterlines must either be within or adjacent to the property claimed to be protected, and that RCWC must also be capable of providing service to the disputed area within a reasonable time after a request for service occurs. The City argued that (1) RCWC did not have the physical ability to service the disputed area at the time the lawsuit was filed, and (2) did not have any customers in the disputed area. The Court determined that both arguments failed. As for (1) the Court found that the waterlines installed beginning in 1974 were both through and adjacent to the properties in question, and that they were sufficient to provide water to new customers because the pressure carried in the lines is approximately 150 psi.  The fact that the 1974 line was used to supply emergency water to the City for several weeks in 1998 supported this conclusion. As for (2), the Court stated that the lack of current customers in the area is irrelevant, and that in fact the language of the statute indicates that future customers are relevant and sufficient.

Legal right to serve area.  The Court recognized that the Ross County Board of Commissioners gave RCWC blanket permission to construct waterlines throughout the unincorporated areas of the county, and that the Ohio Environmental Protection Agency permitted the waterlines in question.  The claim by the City in this regard was without merit.

Finally, the City argued that prior caselaw has recognized that section 1926(b) cannot be used as a sword by rural water districts to “foist an incursion of its own on users outside of its boundary that it has never served or made agreements to serve.”  The Court distinguished the prior caselaw as being unique because it addressed a circumstance where a state has predetermined the boundaries of its rural water districts.  In the present case RCWC was established as a non-profit, and is without state-defined geographical boundaries.  Moreover, RCWC had its lines in place prior to the City’s attempt to server the disputed area.

The Court of Appeals affirmed the District Court’s ruling in favor of RCWC.

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Code enforcement official subject to suit for unlawful inspections

Gary Taylor 1 Comment

by Victoria Heldt

Jacob v. Killian
(Federal Sixth Circuit Court of Appeals, September 12, 2011)

In October of 1999, Killian, a code enforcement officer for the Township of West Bloomfield, charged Jacob for having “blight” and “junk vehicles” in his yard.  He issued the violation after learning of 10 similar prior complaints regarding Jacob’s property.  Jacob pled guilty to the charge, subject to a plea agreement in which he agreed to clean up the area and remove the fence supports within 14 days.  Killian returned to inspect Jacob’s property pursuant to the agreement and discovered he had not complied with the terms.  Subsequently, Jacob served a 30-day jail sentence over portions of October and November 1999.

Jacob sued Killian, claiming that Killian continued to enter and inspect the curtilage of his property without a warrant after Jacob’s incarceration, and that this activity was a violation of his 4th Amendment rights.  Killian argued that he should be granted a summary judgment based on qualified immunity.  The principle of qualified immunity protects government officials who perform discretionary functions from civil liability so long as their behavior does not violate clearly established constitutional rights.  The district court denied his request.

On appeal, Killian argued that Jacob lacked sufficient evidence to support the claim that Killian ever entered his backyard after the incarceration (except for on January 7, 2000, which is relevant to a separate claim).  Jacob had testified that he saw Killian enter his property several times and saw him take photographs on some of the occasions.  The Court noted that Killian had previously admitted to inspecting the property on June 26, 2001, which supports Jacob’s testimony.  Additionally, the Court found that Jacob’s testimony itself is enough evidence to defeat a request for summary judgment.

Killian then argued that he should be granted qualified immunity since he completed the inspections of the property pursuant to an order.  The Court stated that the “just following orders” defense holds no merit in the court system.  Furthermore, Killian never provided any actual evidence that he was ordered by his superior within the Township to inspect Jacob’s property subsequent to Jacob’s incarceration.

Killian submitted a picture taken on January 7, 2000 of Jacob’s property as evidence that he never entered the protective curtilage of Jacob’s home.  He admitted that he visited the property on that date, but that the scenery in the picture proves that he never encroached on a constitutionally protected area.  The Court decided not to address this claim since the issues regarding the other incidents in the case would still prevent a favorable ruling for Killian.

Next, Killian alleged that Jacob consented to the inspections as a term of his probation.  The Court determined that this claim had no merit, because Jacob was never actually put on probation.  The terms of his plea bargain stated he would be put on probation if he complied with the terms of the agreement and evaded time in jail.  Jacob was found to be in violation of the agreement and served a 30-day jail sentence; therefore, he was never put on probation.  Additionally, the Court noted that even if Jacob had received probation, it would not mean that he waved his fourth amendment rights regarding entrance onto his property.

After denying Jacob’s request for attorney’s fees or sanctions against Killian, the Court affirmed the district court’s denial of summary judgment.

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Warren, Michigan adult entertainment restrictions pass constitutional muster

by Melanie Thwing

Big Dipper Entm’t, L.L.C. v. City of Warren

(U.S. Court of Appeals Sixth Circuit, April 13 2011)

In 2006 the City of Warren, Michigan amended the city code to restrict the location of adult businesses. This was in an attempt to “halt property value deterioration,” “eliminate the causes of deterioration,” and “eliminate blight.” Before enacting this ordinance the City received and reviewed 49 studies and reports about secondary effects of adult businesses.

The City published a notice of intent to amend Section 14.01 of the City code, which again was to “prohibit the location of sexually oriented businesses within the boundaries of the Warren Downtown Development Authority.” A temporary ban on all new permits was enacted during the consideration of the proposed amendment.

Big Dipper Entertainment filed a petition to operate a topless bar one day prior to the ban going into effect. The city code specifies that the application must be acted upon within twenty days. The city clerk denied the application after twenty-four. Two years later in 2008 Big Dipper filed this U.S.C. § 1983 action in federal district court, arguing that Section 14.01 of the Warren City Code violates the First Amendment, and that the untimely rejection of the application acted as a prior restraint on protected expression. The district court granted summary judgment for the City and Big Dipper appealed to the Sixth Circuit.

Big dipper first argued that § 14.01 was an unconstitutional restriction on speech, and that the main purpose of § 14.01 was not to limit secondary effects but to prevent new adult businesses from opening. The Sixth Circuit noted that “the speech at issue here was that conveyed by a topless bar” and it is common sense to say that in a democracy “society’s interest in protecting this type of expression is of a wholly different, and lesser magnitude than the interest in untrammeled political debate.”  To satisfy its burden, the city need only show that its “predominate concerns were with the secondary effects” of adult businesses.  The city met this burden through the evidence provided in the collection of studies and reflected in the city council meeting minutes.

Also Big Dipper argued that the district court disregarded their expert’s analysis that showed that § 14.01 restricted locations to only ten potential sights from thirty-nine. The Sixth Circuit noted that Big Dipper did not raise this issue in district court, and that the burden to create a genuine issue of material fact falls to Big Dipper not the district court. Only two applications for adult businesses were filed in the five years leading up to the litigation. Even a reduction from thirty-nine potential sites to ten, as would be the result of § 14.01 still supplies almost thirteen times more sites than the five-year demand. This was “more than ample for constitutional purposes.” The decision of the district court was affirmed.

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RLUIPA claim of religious order not ripe for adjudication

Gary Taylor

by Gary Taylor

Miles Christi Religious Order v. Township of Northville, Michigan
(Federal 6th Circuit Court of Appeals, December 21, 2010)

Plaintiffs owned a house where several of the brothers and fathers of a religious order lived.  They conducted private services and hosted Bible studies.  Several neighbors complained about the number of cars parked on the grass area during these times.  The township wrote a letter asking plaintiffs to provide a description of the activities taking place at the residence and a parking plan.  Plaintiffs did not submit a plan but informed the zoning administrator that they did not have the space to add parking in the back of their property.  As a result, they were told to submit an application requesting a variance to allow parking in the front yard as well as to submit a site plan that would detail the intended expansion of parking spaces.  Plaintiffs failed to submit a site plan, and subsequently were issued a citation for violating the local ordinance that governed site plan review procedures. 

Rather than appeal the citation or apply to the Zoning Board of Adjustment (ZBA) for a variance Plaintiffs filed a claim in federal court challenging the legality of the zoning ordinances as applied to their situation.   Plaintiffs invoked the First and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act (RLUIPA) as well as the Michigan State Constitution.  The federal district court held Plaintiffs’ case was not ripe for judicial resolution, in that they had not taken their case to the ZBA, and further that Plaintiffs’ failed to demonstrate that they would suffer irreparable hardship by delaying a federal court decision until they did so.  Plaintiffs appealed the decision to the 6th Circuit. 

To decide whether a dispute is ripe for judicial resolution, the court asks – (1) is the dispute “fit” for a court decision in that it arises in “a concrete factual context” and involves “a dispute that is likely to come to pass” and (2) “what are the risks to the claimant if the federal courts stay their hand?”  In the land-use context, the requirements of a concrete factual context and a dispute that is likely to come to pass “converge in an insistence on ‘finality,’ an insistence that the relevant administrative agency resolve the appropriate application of the zoning ordinance to the property in dispute.”

The religious order conceded that it had not gone to the ZBA to determine whether the ordinances required it to submit a site plan and, if so, which regulations imposed this obligation and why. The religious order also did not deny that the administrative process allows residents to seek a variance. Instead, they argued that the township’s request that they provide a site plan amounted to the kind of final decision necessary to overcome ripeness concerns. The 6th Circuit concluded that this position did not square with the relevant regulations. An administrative appeal to the ZBA would resolve at least three questions about the religious order’s obligations or whether it has any obligations at all, and that an appeal to the ZBA may help Plaintiffs because the ZBA may grant it a variance or provide a different intensive-use determination.

Federal courts, Procedural Issues, RLUIPA , ,
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Developer had protected property interest in commercial designation of development plan

by Melanie Thwing

Wedgewood v. Township of Liberty, OH
(Federal 6th Circuit Court of Appeals, June 28, 2010)

In 2003, Wedgewood Limited Partnership entered into agreements to build a Wal-Mart and a gas station in Subarea 3 of the Planned Unit Development (PUD)  of the Wedgewood Commerce Center (WCC) in Liberty Township, OH.  The Trustees had rezoned the land to PUD in 1991, and the WCC Development Plan (WCCDP) was approved in 1992.  Subarea 3 totaled 220, 857 square feet. The WCCDP specified that only areas 3, 8, and 9 (a total of 499,930 square feet) were to be used for commercial development, although Subareas 4, 5, 6 and 10 had obtained permits from 1992 to 2003 to develop approximately 390,611 of commercial space.

In October of 2003, Wedgewood filed an application to amend the WCCDP to increase the land in area 3 to 227,825 square feet for the Wal-Mart project.  The project met significant opposition from the community, and the amendment was denied.  After months of increasing opposition, the Trustees in 2004 issued a set of “Zoning Instructions” meant to clarify the current WCCDP. These Instructions indicated a “floating cap” of 500,000 square feet of commercial zoning covering the entire WCC, unless a “major” modification plan was submitted and approved.  The Trustees issued a public statement indicating that “analysis reveals that the commercial development completed to date, and substantially through the approval process, has consumed most of the square footage imposed by the development plan as an overall cap,” and that “we are instructing our zoning department to refrain from issuing any zoning certificates for additional commercial development” unless the proposal goes through the major modification process.

Later that year, Wedgewood again applied for a zoning certificate, but this time to build a smaller 220.597 square foot structure that would fit entirely within Subarea 3. It was not submitted as a major modification plan, and the Commission for Zoning cited this as the reason for denial. Wedgewood countered, filing a claim with the district court for the Southern District of Ohio under 42 U.S.C. § 1983. They argued that the Township’s adoption of the new Zoning Instructions violated Wedgewood’s procedural due process rights, and that the Zoning Instructions were void for vagueness. Summary judgment was granted in favor of Wedgewood, creating a permanent injunction preventing the Township from enforcing the new Zoning Instructions.  The Township immediately appealed to the Court of Appeals for the 6th Circuit.

§519.12 of the Revised Code of Ohio requires notice and a hearing before a zoning ordinance can be adopted or amended.  The Township argues this occurred in 1991 with the adoption of the PUD and the WCCDP, and that the document specifies a 500,000 square foot floating cap. Wedgewood counters that a floating cap had never entered discussion, and is not set forth anywhere in the WCCDP. The Court points out that if a floating cap was meant to exist, then it would be arbitrary to assign subareas 3,8, and 9 as commercial, and that it would ignore the strong correlation between the 500,000 square foot floating cap, and the 499,930 square foot total area for subareas 3, 8, and 9. The Court concludes that the Instructions, for these reasons, changed the WCCDP, which requires a hearing.

The Township then argues that Wedgewood had no protected property interest in the previous amendment procedures, while Wedgewood maintains it did. In Ohio a vested interest in property is given when an application for a building or zoning certificate is filed. Although Wedgewood did this, the Township counters that it was after the Instructions, meaning there was no interest prior. In Stile v. Copley Twp., the district court held a “protectable interest can arise under Ohio law when a government entity restricts a landowner’s ability to use his property.” Using this as a standard, the Court states that Wedgewood justifiably expected to use its land commercially up to 220,857 square feet, unless a proper amendment was passed.

The last issue is whether enacting the instruction without a hearing or providing prior notice to Wedgewood violated Wedgewood’s due process property interest. In Nasierowski Bros. Inv. Co. v. City of Sterling Heights the Court found that not providing notice has a severe and detrimental impact on how the owner can expect to use the land. This standard leads the Court to conclude that Wedgewood was singled out, that prior notice was mandatory, and that Wedgewood had the right to voice concerns.  The summary judgment for a permanent injunction was upheld.

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