# Skilwies v. City of Huber Heights Ohio

> District Court, S.D. Ohio · April 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10384461

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** April 16, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10384461

## How later opinions describe it (automated extraction)

- explaining that something beyond a faint hope that the discovery process might lead eventually to some plausible cause of action must be alleged
- stating that the plausibility standard does not require a probability but asks for more than a sheer possibility that a defendant has acted unlawfully
- stating that “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]…that the pleader is entitled to relief.’”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

Michael Skilwies,

Plaintiff,

v. Case No. 3:23-cv-146
Judge Thomas M. Rose

City of Huber Heights, et al.,

Defendant.

ENTRY AND ORDER GRANTING MOTION FOR
JUDGMENT ON THE PLEADINGS BY DEFENDANTS
CITY OF HUBER HEIGHTS BOARD OF ZONING
APPEALS, CITY OF HUBER HEIGHTS CITY COUNCIL,
CITY OF HUBER OHIO, CITY OF HUBER HEIGHTS
PLANNING COMMISSION (DOC. 23) AND
TERMINATING CASE.

Pending before the Court is Motion for Judgment on the Pleadings by Defendants City of
Huber Heights Board of Zoning Appeals, City of Huber Heights City Council, City of Huber
Heights, and City of Huber Heights Planning Commission. (Doc. 23.) Therein, Defendants
request that the Court dismiss all of Plaintiff Michael Skilwies’s claims against them in their
entirety.

1
Plaintiff sued, asserting a violation of his Equal Protection and Due Process rights under
the Fourteenth Amendment and further asserting that he has been subjected to a regulatory taking
in violation of the Fifth Amendment. (Doc. 1.) In his response to Defendants’ motion, Plaintiff
“disagrees with Defendant’s arguments to dismiss his Substantive and Procedural Due Process,
and Fifth Amendment Taking claims, if only to make an appellate record.” (Doc. 26, PageID

222-23 (citing O’Bryan v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009).) Plaintiff concedes,
“Defendant appears to cite to the correct state of the law. Plaintiff respectfully disagrees that
such law should stand. Plaintiff adamantly contends that his Fourteenth Amendment Equal
Protection claim must survive the instant motion, though the Court must allow discovery on this
claim….” (Id.) The Court will thus confine its analysis to Plaintiff’s Fourteenth Amendment
Equal Protection claim.
I. Background
Plaintiff Michael Skilwies owns approximately five acres of land at 9416 Taylorsville
Road, Huber Heights, Ohio 45424. (See Doc 1, Complaint, ¶ 19). Plaintiff, and his wife and

children reside at this address. (See Id., ¶ 20). While Plaintiff’s property is zoned for agricultural
and low-density residential use, the surrounding area includes many industrial facilities. (See Id.,
¶¶ 21-24).
For approximately the past twelve years, Plaintiff has operated a diesel vehicle repair
business on his property. (See Id., ¶ 25). This is Plaintiff’s sole employment. (See Id., ¶ 26).
Many of Plaintiff’s neighbors operate businesses on their properties. (See Id., ¶¶ 29-34). Plaintiff
alleges two neighbors have received re-zoning or use-variances for businesses run on their
property. (See Id., ¶ 35).

2
On September 9, 2020, the City of Huber Heights received a complaint that Plaintiff was
operating a diesel truck repair business on his property. (Doc. 14-1).1 Operation of such a
business is not a permitted use of Plaintiff’s property under City Zoning Code § 1142 governing
permitted uses on agriculturally zoned property. (Id.). After receiving the complaint, the City
contacted Plaintiff, who denied that he was running a business on his property. (Id.). At that

time, the matter was closed.
Less than a year later, the City of Huber Heights again received a complaint on August 2,
2021, decrying that Plaintiff was operating a diesel truck repair business on his agriculturally
zoned property in violation of zoning code § 1142. (Doc. 14-2, Ex. B). The City contacted
Plaintiff and told him that his business operation is a non-farm related business, and, thus, does
not conform to City zoning regulations. (See Doc. 18-1, Skilwies Aff., ¶ 10). Thereafter, based
on the recommendation of the City, in preparation for applying for a use-variance and re-zoning,
Plaintiff spent approximately $27,000.00 to widen and repave his driveway. (See Id., ¶ 11).
Plaintiff then applied for a use-variance. (See Id., ¶ 12). The City Board of Zoning Appeals

denied the application on October 6, 2021. (See Id., ¶ 13).
Following the denial of the variance application, the City re-inspected Plaintiff’s property
in November of 2021 and discovered that Plaintiff was still operating his diesel truck repair
business in violation of the City’s zoning code. (Doc. 14-2, Ex. B). As a result, the City sent
Plaintiff a letter on November 12, 2021, notifying him that if he did not cease operation of the

1 In evaluating a motion under Federal Rule of Civil Procedure 12(c), although “‘the court primarily considers the
allegations in the complaint, ... matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint, also may be taken into account.’” Amini v. Oberlin College, 259 F.3d 493, 502
(6th Cir. 2001) (emphasis omitted) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)

3
truck repair business within 24 hours, the City would file charges in court for violation of zoning
code section 1142. (Doc. 14-4. Ex. D).
After receiving the November 12, 2021, letter, Plaintiff contacted the City, acknowledged
receipt of the letter, and indicated that his attorney was working on completing an application for
a lot-split and rezoning of the property. (Doc. 14-2, Ex. B). The attorney indicated the

application would be filed in “early 2022” and the City agreed to suspend the violation during
the appellate process. (Doc. 14-2, Ex. B).
On March 28, 2022, Plaintiff filed an application for a proposed lot split and re-zoning.
(See Doc. 18-1, Skilwies Aff., ¶ 14). This application proposed that approximately 3.55 acres of
Plaintiff’s property be re-zoned from “agricultural” to “planned industrial,” which would allow
Plaintiff to maintain his diesel truck and heavy equipment repair business on his property. (See
Id., ¶ 15). The remainder of the five acres would be zoned residential. (See Id., ¶ 16).
Plaintiff attended a public hearing on July 11, 2022, where the City Council reviewed his
application for re-zoning. Plaintiff made statements at this hearing. (See Id., ¶ 17). A staff

member from the City Planning Commission presented at this hearing and noted that the City
Planning Commission recommended that Plaintiff’s re-zoning application be denied due to the
following: (1) no public water or sewer available on the site, which may lead to well-water
pollution; (2) the proposed lot split is not consistent with the comprehensive plan that the area
should remain agricultural and low density residential; (3) the business is a nuisance due to
excessive noise, fumes, odors, etc.; and, (4) additional concerns about the potential
contamination of drinking water wells due to fluid leaks or spills. (See Id., ¶ 18). The staff
member from the City Planning Commission did not present any evidence that Plaintiff’s
business had or would cause the stated concerns to manifest. (See Id., ¶ 19).

4
During this hearing, the City Planning Commission staff member noted that the City’s
Board of Zoning Appeals has approved variance requests that do not conform to the City’s
zoning ordinance. (See Id., ¶ 20). Plaintiff’s re-zoning application was voted down by the City
Council. (See Id., ¶ 21).
After Plaintiff’s re-zoning application was voted down, the City Planner submitted a

proposal to the City Council to amend the current zoning ordinance to allow for automotive and
vehicle repair on properties zoned agricultural. (See Id., ¶ 22). Approval of this ordinance
amendment by the City Council would have allowed Plaintiff to apply for a special use-variance
for his property. (See Id., ¶ 23). That would have allowed Plaintiff to continue operation of his
business. (See Id., ¶ 24). The City Council voted down the proposed amendment on February 13,
2023. (See Id., ¶ 25).
Plaintiff was not in attendance at the City Council meeting on February 13, 2023, because
Plaintiff was initially told that the City Council vote on the proposed ordinance amendment
would take place in March of 2023. (See Id., ¶ 26). Furthermore, Plaintiff was never personally

notified of the date and time of the final City Council vote. (See Id., ¶ 27). The City did not
provide Plaintiff with an explanation as to why his requests for re-zoning and use-variance were
denied. (See Id., ¶ 28).
Plaintiff alleges that his business does not pose a risk of ground water contamination or
any other environmental hazards. (See Id., ¶ 29). He claims the only work performed on diesel
trucks and heavy equipment at his property is major engine or transmission repair work. (See Id.
30). Plaintiff does not perform oil changes or regular truck maintenance work on his property.
(See Id., ¶ 31). Plaintiff adds that all the work he performs on diesel trucks and heavy equipment
at his property is done indoors on a concrete slab, which he believes ensures that pollutanting

5
fluids do not seep into the ground. (See Id., ¶ 32). The City points out that the building in which
Plaintiff performs the diesel repairs does not meet the fire code with respect to such operations,
as it does not have any fire hydrants. (Doc. 14-11, Ex. K)
According to Plaintiff, all fluids are caught in sealed drain pans and then pumped into a
tank. (See Doc. 18-1, Skilwies Aff., ¶ 33). A waste oil company then periodically comes to drain

the tank and haul away the waste. (See Id., ¶ 34). Plaintiff believes this mitigates any concerns of
ground or well water contamination. (See Id., ¶ 35). Until recently, Plaintiff had never received
any complaints from neighbors or the City concerning the operation of his business. (See Id., ¶
36). Plaintiff asserts that any noise or annoyance of which a neighbor has complained do not
emanate from the diesel trucks or heavy equipment from Plaintiff’s business. (See Id., ¶ 37).
Plaintiff believes his business fits within the general scheme of the area because Plaintiff’s
business is similarly situated to other businesses, industrial or otherwise, within the immediate
area. (See Id., ¶ 38).
On February 16, 2023, the City of Huber Heights sent Plaintiff a letter that ordered

Plaintiff to cease and desist operation of his business. (Id. ¶ 39). The letter notes that Plaintiff has
exhausted all available administrative remedies. (See Id., ¶ 40). The letter gave Plaintiff 120
days, commencing March 1, 2023, to wind down his business. (See Id., ¶ 41). Plaintiff filed the
Complaint initiating this case, seeking redress for alleged violations of his Fifth and Fourteenth
Amendment rights and injunctive relief. (See Doc. 1, Complaint, ¶¶ 78-104). The Court denied
Plaintiff’s Motion for a Preliminary Injunction on August 31, 2023. (Doc 19). Now Defendant
has filed a motion seeking judgement on the pleadings on all claims.
II. Legal Standard

6
Rule 12(c) provides, “After the pleadings are closed but within such time as not to delay
the trial, any party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). Pursuant to
Rule 12(h)(2), a motion for judgment on the pleadings is analyzed using the same standard of
review as a motion to dismiss under Rule 12(b)(6). Hunter v. Ohio Veterans Home, 272
F.Supp.2d 692 (N.D. Ohio Jun 26, 2003); Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11

(6th Cir. 1987). The only difference between Rule 12(c) and Rule 12(b)(6) is the timing of the
motion to dismiss. A motion to dismiss under Rule 12(b)(6) requires the moving party to request
judgment in a pre-answer motion or in an answer. A motion for judgment on the pleadings under
Rule 12(c) may be submitted after the defendants filed an answer. Hunter, at 693.
Under the Federal Rules, a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The rules require a
“‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 n.3 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). “Specific facts are not
necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the

grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly,
550 U.S. at 555). In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the
plaintiff’s obligation to provide the grounds for his entitlement to relief necessitates that the
complaint contain “more than labels and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly, 550 U.S. at 555.
The factual allegations of a complaint are assumed true and construed in favor of the
plaintiff, “even if it strikes a savvy judge that actual proof of those facts is improbable and ‘that a
recovery is very remote and unlikely.’” Id. (quoting Scheuer v. Rhodes, 416 U.S. 232 (1974)).
“On the assumption that all the allegations in the complaint are true (even if doubtful in fact),”

7
the allegations in the complaint must “raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555-56. In other words, the complaint must plead “enough facts to state a
claim for relief that is plausible on its face.” Id. at 570. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(stating that the plausibility standard does not require a probability but asks for more than a sheer
possibility that a defendant has acted unlawfully). Thus, the court must find “enough factual
matter (taken as true) to suggest” that “discovery will reveal evidence” of the elements of the
claim. Twombly, 550 U.S. at 558, 556; Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)
(explaining that something beyond a faint hope that the discovery process might lead eventually
to some plausible cause of action must be alleged).
When the allegations in a complaint, however true, could not raise a claim of entitlement
to relief, the complaint should be dismissed for failure to state a claim under Federal Rule Civil
Procedure 12(b)(6). Twombly, 550 U.S. at 558; Iqbal, 556 U.S. at 679 (stating that “where the

well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]…that the pleader is entitled to relief.’”).
Although “the court primarily considers the allegations in the complaint, ... matters of public
record, orders, items appearing in the record of the case, and exhibits attached to the complaint,
also may be taken into account.” Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001)
(emphasis omitted) (quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)); see also
Metris-Shamoon v. City of Detroit, 545 F. Supp. 3d 506, 514 (E.D. Mich. 2021).
III. Analysis

8
Plaintiff claims that he is entitled to equal protection under a “class of one” theory,
claiming that the City treated him differently than others similarly situated to him without a
rational basis for such difference in treatment. (doc. 26, PageID 229.) Class-of-one equal
protection claims are ill-suited to circumstances concerning the exercise of governmental
discretion. While the Supreme Court recognized the class-of-one theory in Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000), courts have recognized that it subsequently
limited the scope of its applicability in Enquist v. Oregon Department of Agriculture, 553 U.S.
591 (2008):
…Engquist’s rationale strongly suggests that the class-of-one
theory is also unavailable in other contexts where government
officials must make inherently subjective discretionary decisions,
e.g., in its role as a sovereign and regulator.

JDC Management, LLC v. Reich, 644 F. Supp. 2d 905, 920 (W.D. Mich. 2009).
As noted by the court in JDC Management:
In the wake of Olech, lower courts have struggled to define the
contours of class-of-one cases. All recognized that, unless carefully
circumscribed, the concept of a class-of-one equal protection
claim could effectively provide a federal cause of action for review
of almost every executive and administrative decision[] made by
state actors. It is always possible for persons aggrieved by
government action to allege, and almost always possible to
produce evidence, that they were treated differently than others,
with regard to everything from zoning to licensing to speeding to
tax evaluation. It would become the task of federal courts and
juries, then, to inquire into the grounds for differential treatment
and to decide whether those grounds were sufficiently reasonable
to satisfy equal protection review. This would constitute federal
courts as general-purpose second-guessers of the reasonableness
of broad areas of state and local decision-making: a role that is
both ill-suited to the federal courts and offensive to state and local
autonomy in our federal system.

9
JDC Management, at 924, (quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1210-11 (10th
Cir. 2004) (emphasis in JDC Management)). In the wake of Enquist, class-of-one claims are
inapposite in the context of controlling discretionary decision-making of law enforcement
officers and city administrators in the enforcement of municipal ordinances. “Courts ‘generally
view’ class-of-one claims with skepticism given the potential to ‘provide a federal cause of

action for review of almost every executive and administrative decision made by state actors.’”
Shavers v. Almont Twp., 832 F. App’x 933, 937 (6th Cir. Oct. 21, 2020) (cleaned up) (quoting
Loesel v. City of Frankenmuth, 692 F.3d 452, 462 (6th Cir. 2012)). Prevailing on this theory
presents a “heavy burden” for plaintiffs. Loesel, 692 F.3d at 462.
Skilwies fails to allege any similarly situated individuals. He does assert that “two (and
possibly more) of Plaintiff’s neighbors, who own lots of similar size and character to Plaintiff’s,
have received either use-variance or re-zoning approval from the City.” (Doc. 3, PageID 29).
However, those businesses are a bed-and-breakfast and a directional drilling company—
somewhat distinct from the on-site activities of Skilwies’s diesel truck repair business. (See Id.)

The first is inherently indistinguishable from low-density residential use, while the other
performs his work elsewhere. Without allegations of similarity situated businesses, Plaintiff
cannot establish that he was unconstitutionally discriminated against, and his claim fails.
Even if Plaintiff had established similarly situated properties, he must not only identify
similarly-situated individuals to whom he can be compared, but also “‘(1) refute every
conceivable basis that might support the government action, or (2) demonstrate that the
challenged action was motivated by animus or ill-will.’” Kesterson v. Kent State Univ., No. 5:16-
cv-298, 2017 WL 995222, at *8 (N.D. Ohio Mar. 15, 2017) (quoting Benjamin v. Brachman, 246
F. App’x 905, 927 (6th Cir. 2007)). While the zoning code was amended to make the bed and

10
breakfast a special use permitted by variance in the district, (Doc. 14-9, Ex. I, at 5-6.), Huber
Heights received multiple complaints within a year’s time that Plaintiff was violating the City
zoning ordinance by operating a diesel repair business. (Doc. 14-1, 14-2.)
In this case, Plaintiff’s Complaint establishes that the City of Huber Heights investigated
the matter and determined that Plaintiff was operating a business not permitted on his

agriculturally zoned property. As a result, the City ultimately issued a cease and desist notice to
Plaintiff. The City was well within its right to enforce the zoning code in the manner in which it
did and as a result, Plaintiff’s Equal Protection claim will be dismissed.
IV. Conclusion
Because Plaintiff has not alleged facts that would entitle him to relief, Defendants’
Motion for Judgment on the Pleadings (Doc. 23) is GRANTED. The Clerk is ORDERED to
TERMINATE the instant case from the dockets of the District Court of the United States for the
Southern District of Ohio, Western Division at Dayton.
DONE and ORDERED in Dayton, Ohio, this Tuesday, April 16, 2024.

s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10384461. Public record. Not legal advice.