# Opposition Brief — Electro-Tech, Inc. v. H. F. Campbell Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0505%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1990 - **Citation:** 493 U.S. 1021 ## Text JOSEPH F. SPANIOL, JR. CLERK” vw In the Supreme Court of the Unitec OCTOBER TERM, 1989 ELECTRO-TECH, INC., a Michigan Corporation, Petitioner, vs. H. F. CAMPBELL CO., a Michigan Corporation, Defendant, and CITY OF WESTLAND, Respondent. RESPONSE TO PETITION FOR WRIT OF CERTIORARI FROM THE MICHIGAN SUPREME COURT Cumminos, McCiorey Davis & Acuo, P.C. By: Owen J. CUMMINGS Gait P. Massap Counsel of Record Business Address: ! 33900 Schoolcraft Livonia, Michigan 48150-1392 | (313) 261-2400 Attorneys for Respondent City of Westland E. L. Menpenna tt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030 QUESTIONS PRESENTED FOR REVIEW I. Whether the Michigan Supreme Court’s Application of the Principles of Williamson v. Hamilton Bank was Clearly Er- roneous When Petitioner Failed to Obtain a Final Decision From the Respondent; Therefore Petitioner’s 42 U.S.C. Section 1983 Claim Was Not Ripe for Adjudication? II. Whether Under the Facts Presented Any Efforts by the Petitioner to Obtain a Final Decision Would Have Been Futile? il TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW ........ i TABLE OF AUTHORITIES ..................... iil ORDERS AND OPINIONS BELOW .............. 1 ST et EE ee Va ee ach ws 1 COUNTER-STATEMENT OF THE CASE ......... 3 SUMMARY OF ARGUMENT .................... 8 ARGUMENTS-— I. The Michigan Supreme Court’s Application of the Principles of Williamson v. Hamilton Bank Was Not Clearly Erroneous When Petitioner's Claim Under 42 U.S.C. Section 1983 Was Not Ripe for Adjudication; When It Failed to Ob- tain a Final Decision From the Respondent... 9 II. Petitioner’s Failure to Obtain a Final Decision Under the Facts Presented Cannot Be Excused by the Futility Exception to the Holding Set ee ee ree 23 A eit ae re ee 27 a ee rr rr ray 28 TABLE OF AUTHORITIES I. Cases: Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988) ... 21, 22 Bello v. Walker, 840 F.2d 1124 (3rd Cir. 1988) ..... 21 Chiplen Enterprises, Inc. v. City of Lebanon, 712 oe eres ore rere ll Collier v. City of Springdale, 733 F.2d 1311 (8th Cir. ES 10 Corder v. City of Sherwood, 579 F.Supp. 1042 (E.D. ea al OS 10 Electro-Tech, Inc. v. Campbell, 161 Mich. App. 622; oo, cw essa neess 6-7 First English Evangelical Lutheran Church of Glen- dale v. County of Los Angeles, 482 U.S. 304; 107 S.Ct. 2378; 96 L.Ed.2d 250 (1987).............. 7,16 Fitzsimmons & Galvin v. Rogers, 243 Mich. 649; I ac cc ss ce ceca een cans 18 Herrington v. County of Sonoma, 834 F.2d 1488 RE a a 20, 23 Hoehne v. County of San Benito, 870 F.2d 529 (9th EE 21, 22, 23, 26 Hudson v. Palmer, 468 U.S. 517; 104 S.Ct. 3194; 82 ee ote ces s 65 8 5 9, 10 In Re Urban Mass Transportation Facilities Project Michigan - UTG - 4, 28 Mich. 529; 184 N.W.2d 563 ee Wes Saeki sk uA Nw 5 18 Kinzli v. City of Santa Cruez, 818 F.2d 1449 (9th eo 16, 19, 20 iv Littlefield v. City of Afton, 785 F.2d 596 (8th Cir. SE 6 on o'nk a Caw de Oks Cie Ta ea Raed eke 21 Long Grove Country Club Estates, Inc. v. The Village of Long Grove, 693 F.Supp. 640 (E.D. Ill. 1988)... . 23 MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340; 106 S.Ct. 2561; 91 L.Ed.2d 285 (1986); reh. den. 478 U.S. 1035; 107 S.Ct. 22; 92 SIE ov vndin-a aan dcckew ah waa ces passim Matter of Acquisition of Land for Central Industrial Park No. 755 v. Chap Automobile Distributors, Inc., 142 Mich. App. 675; 370 N.W.2d 675 (1985) . 18 Matter of Acquisition of Land for Central Industrial Park Project v. Goodwill Community Chapel Church, 127 Mich. App. 255; 338 N.W.2d 204 CIE seine eet Ce Ur ens Rk 18, 19 Nollan v. California Costal Commission, 483 U.S. 825; 107 S.Ct. 3141; 97 L.Ed.2d 677 (1987) ...... 7, 21 Parks v. Watson, 716 F.2d 646 (9th Cir. 1983) ..... 21 Parratt v. Taylor, 451 U.S. 527; 101 S.Ct. 1908; 68 Ral vs bc vale bk baa Waele oe 9,10, 12 Petition of Makie, 362 Mich. 697; 108 N.W.2d 755 RIES aha stig gl ta nA eee Senne faa phe A 18 Poirier v. Grand Blanc Twp., 167 Mich. App. 770; 423 N.W.2d 351 (1988); lv. den. 431 Mich. 911 Eas as ee ch ae CA ee oe 18 Scott v. Greenville County, 716 F.2d 1409 (4th Cir. ERR Pic rae tek aR ON? acl A pk” 21 Shelter Creek Development Corp. v. City of Oxnard, 636 F.3a 376 th Cir. 1968) .. ww es 20, 23 Vv Williamson County Regional Planning Commission, et al. v. Hamilton Bank of Johnson City, 473 U.S. 172; 105 S.Ct. 3108; 87 L.Ed.2d 126 (1985); on rem. 779 F.2d 50 (1985)... 0.0.0... cece ee eee passim II. Constitutional Provisions: Mich. Const. 1963, Art. 10,Sec.2 ............... 18 ecu cu cance k ee ue 13, 16, 27 i Bg fe 13, 16, 27 III. Statutes: oie fg ere rer passim M.C.L.A. 125.584(d)(5); M.S.A. 5.2934(4) ......... 25 M.C.L.A. 213.51-213.77; M.S.A. 8.265(1)-8.265(27) . 18 M.C.L.A. 600.4411; M.S.A. 27A.4411 ............ 26 IV. Court Rules: he RE Ee an ererern se t 3 Respondent, CITY OF WESTLAND, requests that this Honorable Court deny Petitioner’s, ELECTRO- TECH, INC., request for a Writ of Certiorari to review the Order of the Michigan Supreme Court affirming the Michigan Court of Appeals’ decision in this matter. The Michigan Supreme Court Order is dated August 1, 1989. Respondent received Petitioner’s Petition for Writ of Cer- tiorari on October 23, 1989. \ ORDERS AND OPINIONS BELOW In addition to the Orders and Opinions below listed in the Petitioner’s Petition for Writ of Certiorari Petitioner's Appendices A-F the Respondent hereby includes: Consent Judgment in the Wayne County Circuit Court, Detroit, Michigan, dated November 18, 1983; with respect to the condemnation proceedings between the in- stant parties hereto, awarding Petitioner the sum of $64,134.88, inclusive of costs, attorney fees and interest, through October 13, 1979. JURISDICTION This case involves an action by the Petitioner brought under 42 U.S.C. 1983 asserting a violation of the Peti- tioner’s due process rights as a result of the Respondents’ refusal to approve a site plan and ultimately issue a building permit; which Petitioner claims was an unlawful taking of property without just-eompensation in violation of the Fifth and Fourteenth Amendments. The matter proceeded to trial before a jury, in the Wayne County Cir- cuit Court under 42 U.S.C. Section 1983 on a theory of “regulatory taking’’; which resulted in a jury verdict in the sum of $433,052.00 in favor of the Petitioner against the Respondent. A Judgment was entered in favor of the Peti- tioner against the Respondent in the amount of $626,659.07 as a result of said verdict. — 2 The Michigan Court of Appeals reversed the Judg- ment entered in favor of the Petitioner as a result of the jury verdict on the basis that even if Respondents’ deci- sion to deny a building permit was erroneous; said decision was not a violation of Petitioner's state or federal constitu- tional rights, under 42 U.S.C. Section 1983; due to the fact Petitioner should seek redress for same as provided for by the State of Michigan. The Michigan Supreme Court affirmed the Michigan Court of Appeals. The Michigan Supreme Court held Peti- tioner’s claim of ‘taking’ need not be reached when said claim was not ripe for adjudication as Petitioner failed to receive a final decision from the Respondent. In reaching its decision, the Michigan Supreme Court reviewed the facts of the instant matter; and applied the decision and reasoning set forth in Williamson County Regional Plan- ning Commission, et al. v. Hamilton Bank of Johnson City, 473 U.S. 172; 105 S.Ct. 3108; 87 L.Ed.2d 126 (i985). Although a federal question was presented in the case at hand, the Michigan Supreme Court correctly applied the requirements set forth in Williamson and other similar cases. Petitioner proceeded in this matter at the trial court level on a theory of a denial of procedural due pro- cess; claiming the Respondent had “taken’’ Petitioner’s property without just compensation. Petitioner con- tended for the first time before the Michigan Supreme Court that the actions of the Respondent herein amounted to a deprivation of the Petitioner’s substantive due process rights. In any event, the Michigan Supreme Court’s deci- sion in this matter is not clearly erroneous, nor contrary to law. The Michigan Supreme Court’s decision has not decided this matter in conflict with any decisions ap- plicable to the issues presented herein. Exercising its sound judicial discretion; this Honorable Court should 3 deny the Petitioner’s Petition for Writ of Certiorari as same does not warrant review. U.S. Sup. Ct. Rule 17(b). Respondent respectfully requests that this Honorable Court deny Petitioner’s Petition for Writ of Certiorari. COUNTER-STATEMENT OF THE CASE Plaintiff-Petitioner, ELECTRO-TECH, INC., owns and operates an industrial facility in the City of Westland, Michigan. ELECTRO-TECH, INC., is a contractor to the United States Military, manufacturing components for tanks and other armaments. ELECTRO-TECH, INC.’s business with the Government is on a contract basis, those contracts being let on a competitive bid. On October 26, 1978, ELECTRO-TECH, INC. con- tracted with Defendant, H. F. CAMPBELL COMPANY, to construct an addition to its manufacturing facilities located at 1313 Newburgh Road, Westland, Michigan. Pur- suant to the agreement between the Petitioner and CAMP- BELL, that addition was to be completed by February 13, 1979. However, contrary to that agreement, CAMPBELL did not even make application to the Respondent, CITY OF WESTLAND, for site pian approval on this project un- til late February, 1979, after the stated completion date of the concract. Further, CAMPBELL did not submit site plans to ELECTRO-TECH, INC., until March, 1979. The site plans were reviewed by various City Depart- ments having jurisdiction to make recommendations for approval by the City Planning Commission. The City Planning Commission would make a recommendation; which would be sent to the City Council. On February 21, 1979, the City Planning Commission notified Mr. Wagner, of Defendant, H. F. CAMPBELL, CO., that site plan approval request for the addition to ELECTRO-TECH, INC.’s building required 13 items 4 before the plan would be submitted to the Planning Com- mission and City Council. The site plan was scheduled for review before Respondent’s, CITY OF WESTLAND, City Council several times; but was postponed to permit the Petitioner’s President, Mr. Jack Beauchamp, to attend. After several other adjournments to permit the Peti- tioner to attend, the Petiticner’s site plan was scheduled for review on June 11, 1979. With Mr. Jack Beauchamp in attendance, the City Council resolved to tentatively ap- prove the site plans, subject to five stated contingencies. On June 15, 1979, Beauchamp, as President of ELECTRO- TECH, INC., received a letter setting forth the resolution of the City Council, containing the five contingencies, adopted on June 11, 1979. Specifically, the letter stated in pertinent part as follows: At the special meeting of the Westland City Council on June 11, 1979, the following resolution was adopted: RESOLVED that the Council concur with the rec- ommendations of the Planning Commission and approve the request of Mr. Richard Wagner (H. F. Campbell Company for Electro-Tech, Inc.), for site plan approval for an addition to an electrical manu- facturing building Parcels 20K2da, 20K2d2b, east side of Newburgh (south of C & O RR, 1313 Newburgh), W. 20, contingent upon the following: 1. Loading area should be clearly designated as such by striping and signage. 2. A second access door in the new addition is re- quired along the north side of the building for fire protection. 3. Fire and Engineering requirements must be met on final engineering and building plans. 5 4. Dedication of 27 feet wide, approximately 210 feet in front of K2da for future Newburgh Road right-of-way. 5. The front greenbelt area is to be grated and sodded. The contingency requesting the dedication of 27 feet of road right-of-way, along Newburgh Road, was made pur- suant to the recommendation of the Planning Commission. The Planning Commission made this request in compliance with a general plan to widen Newburgh Road. At the June 11, 1979 hearing, Mr. Beauchamp told the City Council he would not dedicate the property as requested. Thereafter, CAMPBELL made some revisions to the site plan to comply with the request of the City Council. However, the evidence at trial established CAMPBELL never submitted a final set of site plans for approval; in order to approve the site plan and/or receive building per- mits for the proposed addition. As late as September, 1979, CAMPBELL was still revising plans for the addi- tion. The City Council never rejected Petitioner’s site plans. In the meantime, ELECTRO-TECH, INC. took no ac- tion by way of an appeal of the City Council’s decision or other action in state court (such as mandamus, injunction, etc.), to obtain relief. Thereafter, by letter dated October 15, 1979, the Respondent indicated it wanted to purchase the requested property. When the parties could not agree as to the proper compensation amount for the property; Respondent, CITY OF WESTLAND, filed a condemnation action in the Wayne County Circuit Court, located in Detroit, Michigan, to take that property. The condemna- tion action was resolved by a Consent Judgment, awarding the Petitioner the sum of $64,134.88, inclusive of costs, at- torney fees and interest, through October 13, 1979. The 6 Consent Judgment was entered into by the parties on Oc- tober 31, 1983. Said Consent Judgment was set forth in writing on November 18, 1983. 3 Petitioner first filed an action against the Respondent on May 28, 1982, nearly three years after the alleged wrongful action of the CITY OF WESTLAND’s City Council. The Respondent was added as a party Defendant in the lawsuit; which Petitioner had begun against its con- tractor, H. F. CAMPBELL COMPANY. After several amendments Petitioner’s Complaint alleged causes of ac- tion against the CITY OF WESTLAND based on state law and 42 U.S.C. Section 1983. At a pre-trial Motion, the Wayne County Circuit Court ruled that the Petitioner’s state law tort claims were barred by state law govern- mental immunity. As a result, the case proceeded to a trial before a jury on Petitioner’s 42 U.S.C. Section 1983 claim. The trial resulted in a verdict of $433,052.00 in favor of the Petitioner against the Respondent. A Judg- ment was entered for that amount together with accrued interest thereon to June 1, 1985, for a total Judgment in the amount of $626,659.07. The Respondent filed a timely appeal of this decision, before the Michigan Court of Appeals. Respondent raised four issues seeking a reversal of the jury verdict. On July 20, 1987, the Michigan Court of Appeals, in a published Opinion, held no violation of due process or any other constitutional right occurred, under 42 U.S.C. Sec- tion 1983, when a local governmental board denies a building permit or made demands exceeding its authority. Petitioner must seek review of that within the State Courts. The Michigan Court of Appeals did not address the other three issues raised by the Respondent in its Brief on Appeal; stating their response to the Section 1983 issue was dispositive of the case. Electro-Tech, Inc. v. Camp- 7 bell, 161 Mich. App. 622; 411 N.W.2d 800 (1987). (Peti- tioner’s Appendix, D). The Petitioner filed a Motion for Rehearing at the Michigan Court of Appeals, which was denied on September 28, 1987. The Petitioner requested a rehearing of the matter before the Michigan Court of Appeals contending the Court of Appeals should reconsider the appeal in light of the decision set forth in First English Evangelical Lu- theran Church of Glendale v. County of Los Angeles, 482 U.S. 304; 107 S.Ct. 2378; 96 L.Ed.2d 250 (1987). To sup- port its Petition for Rehearing, Petitioner provided a Sup- plemental Brief, citing another recent Supreme Court case, Nollan v. California Costal Commission, 483 U.S. 825; 107 S.Ct. 3141; 97 L.Ed.2d 677 (1987). On October 13, 1987, Petitioner filed an Application for Leave to Appeal and a Motion for Immediate Consid- eration with the Michigan Supreme Court. By an order of the Michigan Supreme Court, dated March 22, 1988, the Motion for Immediate Consideration was granted, and the Application for Leave to Appeal was granted limited to the issue of whether the Petitioner’s Judgment under 42 U.S.C. Section 1983 should be reinstated. Again Respon- dent requested the Michigan Supreme Court to consider the additional issues raised before the Michigan Court of Appeals; however, the Supreme Court declined as said issues were not decided by the Michigan Court of Appeals. After entertaining oral arguments on the matter, as well as requesting additional information, the Michigan Supreme Court issued a lengthy Opinion dated August 1, 1989. The well-reasoned Opinion of the Michigan Supreme Court held Petitioner’s claim under 42 U.S.C. Section 1983 was not ripe for adjudication; based on Williamson, supra. The Petitioner failed to receive a final decision from the Respondent herein. 8 With respect to the Petitioner’s “‘regulatory taking”’ claim, the Michigan Supreme Court held the Petitioner’s 42 U.S.C. Section 1983 claim was not ripe for adjudication; when the Petitioner failed to obtain a final decision. There- fore the Court was unable to determine to what extent, if any, the Respondent had interfered with the Petitioner’s “investment-backed expectations”. Finally, the Court held the Petitioner failed to establish futility as an excep- tion to the final decision requirement set forth in William- son. SUMMARY OF ARGUMENT The Michigan Supreme Court’s application of the holding set forth in Williamson and other similar cases is not clearly erroneous; nor contrary to law. Further, the Petitioner did not proceed at the trial court level, nor at the Michigan Court of Appeals level, on a theory that the Re- spondent had violated the Petitioner’s substantive due process rights. In any event, Petitioner has not met the ripeness requirements set forth in Williamson and other similar cases; for bringing a 42 U.S.C. Section 1983 action. Before a landowner can be said to have been denied Fifth Amendment ‘just compensation’”’ for an action under 42 U.S.C. Section 1983; said landowner must be denied just compensation at the state court level first. Efforts to ob- tain a final decision from the Respondent would not have been futile. The City Council never rejected the Peti- tioner’s site plans. 9 ARGUMENTS I. The Michigan Supreme Court’s Application of the Prin- ciples of Williamson v. Hamilton Bank Was Not Clearly Erroneous When Petitioner’s Claim Under 42 U.S.C. Sec- tion 1983 Was Not Ripe for Adjudiction; When It Failed to Obtain a Final Decision From the Respondent. In Parratt v. Taylor, 451 U.S. 527; 101 S.Ct. 1908; 68 L.Ed.2d 420 (1981), this Honorable Court set forth the necessary elements for maintaining a cause of action under 42 U.S.C. Section 1983 for deprivation of property without due process. In finding that the plaintiff had not stated or proven a cause of action under 42 U.S.C. Section 1983, the Court stated: Our inquiry therefore must focus on whether the respondent has suffered a deprivation of property without due process of law. In particular, we must decide whether the tort remedies which the State of Nebraska provides as a means of redress for property deprivation satisfies the requirements of procedural due process. * * * Although state remedies may not provide the respon- dent with all the relief which may have been available if he could have proceeded under Section 1983, that does not mean that the state remedies are not adequate to satisfy the requirements of due process. The remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold they are sufficient to satisfy the requirements of due process. 101 S.Ct. at 1914, 1917. The principle of Parratt was extended in Hudson v. Palmer, 468 U.S. 517; 104 S.Ct. 3194; 82 L.Ed.2d 393 (1984). In Hudson, plaintiff alleged deprivation of his pro- 10 perty by the prison officials’ intentional destruction of his personal property during a search of his cell. Holding that plaintiff failed to state a claim under Section 1983; the Court stated: .. . We hold that an unauthorized intentional depri- vation of property by a state employee does not con- stitute a violation of the procedural requirements of the due process clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for loss is available. 82 L.Ed.2d at 407. The principles of Parratt and Hudson have been ap- plied to cases similar to the instant case. In Corder v. City of Sherwood, 579 F.Supp. 1042 (E.D. Ark. 1984), plaintiff sued the city under 42 U.S.C. Section 1983 alleging the defendant city’s refusal to issue building permits resulted in a violation of plaintiff’s constitutional rights under the Fourteenth Amendment. In finding that the plaintiff had failed to state a claim under Section 1983, the Court stated: ... Under Arkansas law, the Chancery Courts have the power to review zoning decisions and grant relief when a zoning decision is arbitrary, capricious, or unreasonable. An appeal from an adverse decision could be pursued through the Arkansas state court system. Therefore, the plaintiff’s right to judicial review of a city council’s decision by state courts af- forded them protection from arbitrary, capricious or unreasonable action and therefore affords them due process, as well as equal protection. 579 F.Supp. at 1044. Likewise in Collier v. City of Springdale, 733 F.2d 1311 (8th Cir. 1984), plaintiff alleged the defendant city took his property without due process or compensation by negligently flooding his trout farm, killing some of the fish thereon. The Court, in a lengthy discussion applying the Parratt decision, found plaintiff had failed to plead and prove 1] a claim under Section 1983. The state provided adequate remedies to compensate the plaintiff for his loss. The ade- quate remedy was specifically, a condemnation action in state court which provided compensation to the plaintiff for the taking of his property. In Chiplen Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524 (1st Cir. 1983), a real estate developer brought suit against the defendant city under 42 U.S.C. Section 1983 alleging a violation of constitutional rights. Ina case not unlike the instant case, defendant city denied the plain- tiff a building permit, and only issued the building permit some five years after the original application and after plaintiff had been to the Supreme Court of New Hamp- shire. The gravamen of plaintiff's complaint was that the defendant denied the plaintiff due process by maliciously denying plaintiff a building permit for invalid and illegal reasons, and in bad faith. In holding the plaintiff had failed to plead or prove a claim under Section 1983, the Court stated: A mere bad faith refusal to follow state law in such local administrative matters simply does not amount to a deprivation of due process where the state courts are available to correct the error. 712 F.2d at 1528. In Williamson, supra; a property owner filed suit against a planning commission, when its proposed develop- ment of certain plats of property had been denied by the commission. The property owner’s suit was based on 42 U.S.C. 1983 alleging that the commission had taken its property without just compensation by refusing to ap- prove the proposed development. This Honorable Court held that the landowner’s claim was premature and not ripe for review when the landowner had failed to obtain a final decision on its development proposal. In so holding, the Court specifically stated: Because respondent has not yet obtained a final deci- sion regarding the application of the zoning ordinance 12 and subdivision regulations to its property, nor uti- lized the procedures Tennessee provides for obtaining just compensation, respondent’s claim is not ripe. This Honorable Court further stated: Similarly, 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 compen- sation. The recognition that a property owner has not suffered a viclation of the just compensation clause until the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the state for obtaining just compensation is analogous to the Court’s holding in Parrati v. Taylor, 451 U.S. 527 (1981). . oe Thus, the state’s action is not “‘complete’’ in the sense of causing a constitutional injury “‘unless or unti! the state fails to provide an adequate post-deprivation remedy for the property loss.’’ Hudson v. Taylor, ___ U.S. ___, __n.12 (1984). Likewise, because the Con- stitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provi- sion for obtaining compensation after the taking, the state’s action here is not “complete’’ until the state fails to provide adequate compensation for the taking. * x * Respondent has not shown that the inverse condemna- tion procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature. Thus, Williamson, supra, clearly holds before a plain- tiff may bring a cause of action under 42 U.S.C. 1983, the plaintiff must be deprived of its constitutional rights by a ~ él 13 final decision of the local governmental body; and the plaintiff must utilize state court remedies and be denied relief before a plaintiff may initiate a 42 U.S.C. 1983 action. The decision set forth in Williamson, supra; was reaf- firmed by this Honorable Court in MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340; 106 S.Ct. 2561; 91 L.Ed.2d 285 (1986), reh. den. 478 U.S. 1035; 107 S.Ct. 22; 92 L.Ed.2d 773 (1986). In MacDonald, this Honorable Court was presented with the question whether a rejection of a subdivision pro- posal deprived the appellant of its property without just compensation contrary to the Fifth and Fourteenth Amendments to the United States Constitution. In deter- mining that issue, this Court stated: Because of the importance of the question whether a monetary remedy in inverse condernnation is constitu- tionally required in appropriate cases involving regulatory takings, we noted probable jurisdiction. (Citation omitted). On further consideration of our jurisdiction to hear this appeal, aided by briefing and oral argument, we find ourselves unable to address the merits of this question. In reaching that conclusion, this Honorable Court stated: The regulatory taking claim advanced by appellant has two components. First, appellant must establish that the regulation has in substance “‘taken”’ his prop- erty (footnote omitted)—that is, that the regulation “goes too far.”’ (Citations omitted). Second, appellant must demonstrate that any proffered compensation is not “‘just.”’ It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and inten- sity of development legally permitted on the subject property. 14 ... Our cases have accordingly “‘examined the ‘taking’ question by engaging in essentially ad hoc, factual in- quiries that have identified several factors—such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the governmental action—that have particular significance.” ... Until a property owner has “obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,”’ ‘it is impossible to tell whether the land re- tains any reasonable beneficial use or whether existing expectation interest has been destroyed.’’ Williamson Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 186, 190 n.11 (1985)... . That affect cannot be measured until a final decision is made as to how the regulations will be applied to respondent's property. Id. at 199-200. ... @ court cannot determine whether a municipality has failed to provide “just compensation”’ until it knows what, if any, compensation the responsible ad- ministrative body intends to provide. See id., at 195 (‘the State’s action here is not ‘complete’ until the State fails to provide adequate compensation for the taking” (footnote omitted)). The local agencies charged with administering regulations governing pro- perty development are singularly flexible institutions: what they take with the one hand they may give back with the other. Thus, this Honorable Court has consistently held that before a cause of action under 42 U.S.C. Section 1983, (based on an alleged taking of property as a result of a mu- nicipality’s regulations regarding the landowner’s use of same); said landowner must obtain a final decision from the municipality charged with administering said regulations and be denied relief in the state court. 15 In the case at hand, the City Council tentatively ap- proved the site plans, subject to complying with five con- tingencies. Four of which were legally valid. However, the following facts cannot be emphasized enough, as justi- fication for upholding the decision of the Michigan Supreme Court; when in fact Plaintiff never received a final decision from the Respondent herein. Petitioner never submitted a final site plan, containing plans which complied with the four valid contingencies set by the City Council. Petitioner's contractor, CAMP- BELL, was past the building completion date by the time CAMPBELL submitted the first site plans to the Planning Commission, for its recommendation to the City Council, in February, 1979. Evidence produced at trial clearly estab- lished that the completion of said addition was to be done by February 21, 1979. Petitioner, through its President, Mr. Beauchamp, delayed his appearance before the City Council for four months, past the completion date of the addition, before appearing on June 11, 1979. Thus, the delay in consider- ing the site plan submitted by CAMPBELL on behalf of the Petitioner was not caused by the City Council. The delay in constructing the addition was not the fault of the Respondent. As late as September, 1979, CAMPBELL was still re- vising the site plans. In the meantime, Petitioner took no action by way of appeal or other state court relief available to it, under state law, to remedy what it believed was an “il- legal demand.” On October 15, 1979, three months after its contin- gency approval, the City Council, rescinded the dedication contingency when it offered to purchase the property. When the parties were unable to reach an agreement short of litigation, i.e. condemnation proceedings initiated by the Respondent, the matter was resolved ultimately by entry 16 of a Consent Judgment. Yet, Petitioner never submitted any further site plans to the City Council to complete the addition to his building. In essence, Petitioner sat on its rights, ran up its damages and filed suit alleging, inter alia, a violation of 42 U.S.C. Section 1983; claiming a regulatory taking occurred from an “illegal” condition placed on the granting of site plan approval, contrary to the Fifth and Fourteenth Amendments. Here, as in McDonald, supra, Petitioner submitted one site plan to the Respondent’s decision making entity, i.e. the City Council and received one response thereto; a ten- tative approval. Four-months after the completion date, set by the Petitioner with his building contractor, Plaintiff appears before the City Council and learns of the site plan approval subject to five contingencies. Three months later, in September, 1979, Petitioner’s building contractor was still revising the site plans. Thus, it is clear under the facts presented the Petitioner never received a final deci- sion from the Respondent herein; thereby precluding Peti- tioner’s 42 U.S.C. Section 1983 claim, under any theory, when same was not ripe for adjudication. In Kinzli v. City of Santa Cruez, 818 F.2d 1449 (9th Cir. 1987); plaintiffs filed suit alleging a taking claim based on the Fifth and Fourteenth Amendments without just com- pensation, a denial of equal protection, as well as a substan- tive due process claim; as a result of restrictions placed on the use of their property by the defendant city. The Ninth Circuit Court of Appeals held plaintiff's claims were not ripe for adjudication with respect to all theories of all liability advanced by the plaintiffs. In so holding, the Ninth Circuit based its decision on the holdings set forth in Williamson, supra; MacDonald, supra; and First English Evangelical, supra. Wit respect to each claim contended by the plaintiffs in Kinzli, the Ninth Circuit held that before same would be ripe for adjudication the plaintiff must receive a final decision from the defendant. This was 17 true, even in the face of allegations by the Plaintiff that state procedures were inadequate; and, any attempt to ob- tain a final decision from the municipal defendant would be futile. In so holding, the Court stated: The ripeness requirement of first seeking additional compensation from the City is excused only if the State does not have an available and adequate inverse con- demnation procedure. Hamilton Bank, 105 S.Ct. at 3122. The Kinzlis contend that California does not have an available and adequate procedure for obtain- ing compensation for inverse condemnation. We disagree. (Emphasis added). The above-quoted statement was based on the Court's determination that California, in fact had two available procedures in which the plaintiffs could seek just compen- sation. Number one, plaintiffs could file another inverse condemnation action, for the actions taken by the city subsequent to a 1970 condemnation judgment entered in a prior matter between the parties. Further, the Court found California provided an adequate procedure since the state court could award money damages for those of the plaintiffs claims which were ripe. Plaintiffs could in- stitute a cause of action based on misrepresentation when the city represented to plaintiffs that it was going to build a road through the plaintiffs’ property for over ten years and later abandoned its project. Therefore, Petitioners could seek money damages under state law. Unlike many of the cases coming from California, where California specifically does not provide for the awarding of money damages in inverse condemnation pro- ceedings; the State of Michigan specifically provides for a cause of action under inverse condemnation. Further, both the Michigan Constitution and state statutory law provide plaintiff with adequate remedies to seek full redress of any damages alleged to have occurred as a result 18 of the Respondent’s actions herein. Michigan case law, has specifically held that damages may be awarded for temporary takings of property by state entities. Poirier v. Grand Blanc Twp., 167 Mich. App. 770; 423 N.W.2d 351 (1988); lv. den. 431 Mich. 911 (1988). _ The Michigan Constitution, 1963, Article 10, Section 2, provides: “private property shall not be taken for public use without just compensation therefore being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record.” Further, Michigan statutory law found at M.C.L.A. 213.51- 213.77; M.S.A. 8.265(1)-8.265(27), commonly known as the Uniform Condemnation Procedures Act, provides for a Plaintiff to seek damages based on a “constructive taking” or “de facto taking”. Case law interpreting said statute and constitutional provisions has defined “just compensation” as an amount of money which would put the person whose property had been taken in as good a position as the person would have been if the taking had not occurred. Matter of Acquisition of Land for Central Industrial Park No. 755 v. Chap Automobile Distributors, Inc., 142 Mich. App. 675; 370 N.W.2d 675 (1985); Matter of Acquisition of Land for Cen- tral Industrial Park Project v. Goodwill Community Chapel Church, 127 Mich. App. 255; 338 N.W.2d 204 (1983); In Re Urban Mass Transportation Facilities Project Michigan - UTG - 4, 28 Mich. 529; 184 N.W.2d 563 (1970); Petition of Makie, 362 Mich. 697; 108 N.W.2d 755 (1961); Fitzsimmons & Galvin v. Rogers, 243 Mich. 649; 220 N.W. 881 (1928). Further, in Matter of Acquisition of Land for Central Industrial Park Project, supra, the Michigan Court of Ap- peals stated: Accordingly, if a city names a property owner as a defendant in an action for condemnation, the lower 19 - court in which the condemnation action is filed is the jurisdictionally proper form in which to test the valid- ity of the city’s “good faith” offer and determine whether the city took coercive action in acquiring the property. Jd., 335 N.W.2d at 206. Thus, it is clear Petitioner had adequate remedies under state law to provide it with “just compensation” pur- suant Michigan constitutional provisions, as well as statutory law. Under Michigan’s Constitution and statutory provi- sions, the state courts have the power to determine if the governmental entity’s actions are abusive and award “just compensation,” for such abuse. ELECTRO-TECH had adequate remedies at state law to receive full compensa- tion for the taking of its property in the condemnation pro- ceedings. Condemnation proceedings were in fact in stituted with a consent judgment settling all claims of damages arising from the taking of its property. Peti- tioner received due process, both procedural and substan- tive, when just compensation was paid by the Respondent as a result of the condemnation proceedings instituted previous to Petitioner’s 42 U.S.C. Section 1983 action. As stated in MacDonald, supra and Kinzlis, supra; Petitioner herein has failed to meet the two prerequisites for filing a cause of aetion under 42 U.S.C. Section 1983. Quoting MacDonald, the Kinzlis Opinion stated: Recently, in MacDonald, the Supreme Court explained that to assert a regulatory takings claim, a plaintiff must establish its two components: (1) that the regulation has gone so far that it has “taken” plaintiff's property, and (2) that any compensation tendered is not “just.” MacDonald, 106 S.Ct. at 2566. To establish this first component of a regulatory tak- ings claim, “an essential prerequisite” must be present: 20 there must be a final and authoritative determination of the type and intensity of development legally per- mitted on the subject property. A Court cannot deter- mine whether a regulation has “gone too far” unless it knows how far the regulation goes. The decisions set forth in Williamson, MacDonald, and Kinzli, were reaffirmed in Herrington v. County of Sonoma, 834 F.2d 1488 (9th Cir. 1988); and Shelter Creek Develop- ment Corp. v. City of Oxnard, 838 F.2d 375 (9th Cir. 1988). In fact, Shelter Creek Development, supra, after reviewing the holding set forth in Williamson, MacDonald, Kinzlis and Herrington, specifically stated: We also left no doubt that equal protection claims and substantive due process claims are to be analyzed for ripeness in the same way that regulatory taking claims are analyzed: “[{T]he. [landowners] equal protection claim is not ripe for consideration by the district court “until planning authorities and state review entities make a final decision on the statute of the property.” The [landowners] equal protection claim therefore is not ripe, just as their taking claim is not ripe. Jd. at 1455-56 (quoting Norco Construction, Inc. v King County, 801 F.2d 1143, 1145 (9th Cir. 1986)). Like- wise, the landowners’ due process claim was not ripe because they had failed to “obtain final decisions regarding the appiication of the regulations to their property and the availability of variances.” Jd. at 1456; accord Herrington v. County of Sonoma, 834 F.2d 1488, 1496 (9th Cir. 1987) (2-1) (Emphasis added). Thus, it is clear Petitioner’s 42 U.S.C. Section 1983 ac- tion was not ripe for adjudication. The Michigan Supreme Court did not misapply the Williamson holding or other federal case law to the matters at hand. The Michigan Supreme Court’s decision does not warrant review by this 21 Honorable Court. Petitioner’s Petition for Writ of Cer- tiorari should be denied by this Honorable Court. Lastly, Petitioner has argued here; as it attempted to do for the first time on appeal before the Michigan Supreme Court, that it brought a substantive due process violation under 42 U.S.C. Section 1983; therefore Wiliiam- son does not apply. Petitioner’s contention is meritless. Petitioner has relied upon several cases in support of its position that the finality requirement set forth in Williamson is not applicable to substantive due process claims as a basis for a cause of action under 42 U.S.C. Sec- tion 1983. Those cases are: Bello v. Walker, 840 F.2d 1124 (3rd Cir. 1988); Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988); Hoehne v. County of San Benito, 870 F.2d 529 (9th Cir. 1989); Scott v. Greenville County, 716 F.2d 1409 (4th Cir. 1983); Parks v. Watson, 716 F.2d 646 (9th Cir. 1983); Littlefield v. City of Afton, 785 F.2d 596 (8th Cir. 1986); and Nollan v. California Costal Comm'n, 483 U.S. 825; 107 S.Ct. 3141; 97 L.Ed.2d 677 (1987). All of the aforementioned cases relied upon by the Petitioner are fac- tually and legally distinguishable from the matters at hand. Further, previously cited case law herein establishes Petitioner’s contention is meritless. In Bello, supra, plaintiff landowners, received final ap- proval of their site plans and were denied the issuance of a building permit. The landowners attempted to file a cause of action in the state court and attempted to pursue its state court remedies, prior to filing their 42 U.S.C. Section 1983 action. In reviewing the District Court’s grant of summary judgment in favor of the defendants, with respect to the landowner’s substantive due process claims, the question of finality was not a matter at issue before the Court. In Bateson, supra, a property owner brought a Section 1983 action against a city, and city council members; when . 22 same refused to issue the property owner a building per- mit. However, under California law; once the property owner had satisfied all conditions for the issuance of a building permit, said property owner was entitled to said permit. City regulations specifically provided that city of- ficials must issue a building permit to an applicant who had satisfied all the requirements for same. In the instant matter, the Petitioner never satisfied all of the re- quirements for the approval of his site plan; let alone the is- suance of a building permit. Further, in Bateson the city council, after refusing to issue the plaintiff a building per- mit, initiated a zone change on Bateson’s property. The issue of finality was never a question for the Court’s deci- sion in Bateson. Clearly, under the holding set forth in Hoehne, supra, it is clear that the finality requirement set forth in William- son, supra; must be satisfied by any landowner alleging a taking of property as a basis for a 42 U.S.C. Section 1983 violation; whether same is grounded on procedural due pro- cess, substantive due process, ‘‘taking’”’ and/or equal pro- tection arguments. The bottom line in all of these cases, aside from requiring a final decision, also requires that the state remedies available are inadequate. Once again, it must be reiterated that this Honorable Court has con- tinuously stated that “‘if a state provides an adequate pro- cedure 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 com- pensation.”’ Williamson, 473 U.S. at 195, 105 S.Ct. at 3121. In Hoehne, supra; the Circuit Court specifically found that California did not provide the landowner adequate remedies for just compensation of property that was taken by the governmental entity. The ripeness requirements set forth in Williamson and reaffirmed and adopted in MacDonald are stringent. In 23 order to have a 42 U.S.C. Section 1983 claim ripe for ad- judication, based on a regulatory taking of property, a landowner must (a) receive a final decision and (b) be denied just compensation for same. Petitioner in the instant case has failed to establish that a final decision was in fact reached. Petitioner did receive just compensation as a result of the state condemnation proceedings, and the state court remedies were not inadequate. IT. Petitioner’s Failure to Obtain a Final Decision, Under the Facts Presented, Can Not Be Excused by the Futility Ex- ception to the Holding Set Forth in Williamson. A futility exception to the final decision ripeness re- quirement set forth in Williamson, supra; MacDonald, supra; and other cases has been developed. This futility exception enunciated by the Ninth Circuit Court of Ap- peals has been based on the dissent found in the Mac- Donald, supra opinion. Petitioner has relied upon the cases of Long Grove Country Club Estates, Inc. v. The Village of Long Grove, 693 F.Supp. 640 (E.D. Ill. 1988); Shelter Creek Develop- ment, supra; Herrington, supra; and Hoehne, supra. Said cases are both factually and legally distinguishable from the matters at hand. In those cases, the Court addressed whether or not futility would excuse the landowner from obtaining a final decision in order to satisfy the ripeness test set forth in Williamson, supra. The futility require- ment set forth in said cases, has not been met by the in- stant Petitioner under the facts presented at the trial court level. In Hoehne, supra, the landowners received a final deci- sion when the governmental entity refused to grant a sub- division application; and later changed its general plan for land use development, as well as its zoning maps. The 24 Court held these actions evidenced the city had reached a final decision in the matter. As aresult of said actions, the Court held any further attempts by the plaintiff to obtain a subdivision application approval would have been futile. In so holding, the Court stated that it based its decision on the specific facts presented in the case. Relying on Williamson, specifically at 473 U.S. at 190-91; 105 S.Ct. at 3118-19; the Court stated: This Court has held that the final decision requirement is applicable to substantive due process and equal pro- tection claims brought to challenge the application of land use regulations, Kinzli v. City of Santa Cruez, 818 F.2d 1449, 1455-56 (9th Cir.), as amended, 830 F.2d 968 (1987), cert. denied, ___ U.S. ___, 108 S.Ct. 775, 98 L.Ed.2d 861 (1988); Shelter Creek Dev. Corp. v. City of Oxnard, 838 F.2d 375, 379 (9th Cir.), cert. denied, __ U.S. ___, 109 S.Ct. 134, 102, L.Ed.2d 106 (1988); Herr- ington, 857 F.2d at 569, and is most likely applicable to related procedural due process claims, id. * * * The Supreme Court has recognized that land-use plan- ning is not an all-or nothing proposition. A govern- ment entity is not required to permit a landowner to develop property to the full extent it may desire. Denial of intensive development desired by a land- owner does not preclude less intensive, but still viable development. (Citation omitted). “The local agencies charged with administering regulations governing pro- perty development are singularly flexible institutions; ... the property owner, therefore, has a high burden of proving that a final decision has been reached by the agency before it may seek compensatory or injunctive relief in federal court on federal constitutional grounds.” (Emphasis added). * * * 25 ... only the facts tell us whether a final decision had been reached. In the case at hand, not only did Petitioner fail to ob- tain a final decision from the Respondent; Petitioner failed to utilize its state court remedies in an effort to obtain just compensation. Further, said remedies were not inade- quate to redress any injury the Petitioner suffered as a result of the alleged “taking” of its property. Finally, con- demnation proceedings were instituted by the Respondent in a timely fashion once the parties were unable to resolve the matter amongst themselves; with the Petitioner ultimately receiving over Six Hundred Thousand ($600,000.00) Dollars in “just compensation”. If Petitioner felt it did not receive compensation for the property upon which it sought to build the addition, the state remedies provided for in Michigan were sufficiently adequate to return the Petitioner to the status it would have occupied had the “taking” not occurred. Petitioner did not obtain a final decision from the Respondent; and, any attempts by the Petitioner to obtain a final decision would not have been futile. As stated previously herein, Petitioner was late as a result of its own contractor’s failure to develop site plans prior to the specified completion date for the addition to the building. Further, Petitioner never satisfied the four other con- tingencies necessary for final approval of the site plan by the Respondent. No fina! site plans were ever submitted to the Respondent. M.C.L.A. 125.584(d)(5); M.S.A. 5.2934(4) states: “A site plan shail be approved if it contains the infor- mation required by the zoning ordinance and is in com- pliance with the zoning ordinance and the conditions imposed thereunder, other applicable ordinances, and state and federal statutes.” 26 Had the Petitioner satisfied the other four contingen- cies and submitted revised site plans; by state law, Respon- dent would have been required to approve the site plans. In turn, entitling Petitioner to a building permit. If Respondent refused, by statute; M.C.L.A. 600.4411; M.S.A. 27A.4411; Petitioner could have compelled same. Yet, Petitioner never submitted any site plans after June, 1979. As late as September, 1979 Petitioner’s building contractor was still revising the site plans which had been tentatively approved by the Respondent subject to the five stated contingencies. The Respondent removed the dedication contingency, as a condition to the final approval of Petitioner’s site plan, in early October, 1979; when it of- fered to purchase the 27 feet. A final decision in this mat- ter was not obtained. Unlike the plaintiff in Hoehne any attempts by the Petitioner to obtain a final approval of its site plan would not have been futile. There are absolutely no facts to establish the submission of a set of site plans meeting the other four contingencies would have been futile. Petitioner has failed to satisfy the elements necessary to demonstrate futility. The Michigan Supreme Court cor- rectly applied the Williamson opinion and case law inter- preting same to the facts at hand. This Honorable Court should not grant the Petitioner’s Petition for Writ of Cer- tiorari. clit Ain * il Maen 8 27 CONCLUSION In summary, Petitioner failed to satisfy the finality re- quirement set forth in Williamson, supra; when it failed to obtain a final decision from the Respondent and failed to utilize its state court remedies to seek just compensation as a result of an alleged taking. Under the facts at hand no taking of the Petitioner’s property occurred without just compensation. The Michigan Supreme Court’s decision affirming the Michigan Court of Appeals, based upon the finality holding of the Williamson case is not clearly erroneous. The case law interpreting the finality requirement for ripeness, before a 42 U.S.C. Section 1983 action can be brought; applies to claims attempting to assert a ‘‘taking”’ under the Fifth and Fourteenth Amendments, a denial of equal protection and substantive due process. Thus, it is clear that Williamson is clearly applicable to the matters at hand. Applying the Williamson decision and the cases inter- preting same set forth herein, the Michigan Supreme Court correctly determined that the Petitioner failed to obtain a final decision from the Respondent herein. Petitioner never received a final decision from the Respondent. Nor did the Petitioner utilize any state court proceedings such as man- damus, injunctive relief or inverse condemnation. The Michigan Supreme Court correctly found that the Peti- tioner’s 42 U.S.C. Section 1983 claim was not ripe for ad- judication. Petitioner’s futility argument is unsupported by the facts in the instant matter. 28 RELIEF REQUESTED Based upon the foregoing the Respondent CITY OF WESTLAND, respectfully prays that this Honorable Court deny the Petitioner’s Petition for Writ of Certiorari. Respectfully submitted, CumminGs, McCuorey, Davis & Acuo, P.C. By: Owen J. CUMMINGS Gait P. Massap 33900 Schoolcraft Road Livonia, Michigan 48150-1392 (313) 261-2400 Attorneys for Respondent - CITY OF WESTLAND Dated: November 13, 1989 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_0505%3A2. Public record. Not legal advice.