Opposition Brief — Woodpointe Inn Associates Ltd. Partnership v. City of Harper Woods
Supreme Court brief1995
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i
QUESTIONS PRESENTED
I. Whether the “arbitrary and capricious” standard is cor-
rectly and consistently applied by the Circuits in local land use
disputes alleging violation of substantive due process rights.
II. Whether the Sixth Circuit was correct in affirming the
dismissal of a local land use dispute alleging violations of substan-
tive due process where the City listed rational reasons for its
denial of the property owners’ request for a special land use, and
where the City had discretion to grant or deny the request.
Sl ek 2 era
ii
LIST OF PARTIES
The parties to the proceedings below were the Petitioners,
Woodpointe Inn Associates Limited Partnership
Thomas Handlos and Lucille Handlos
and Respondents
City of Harper Woods, a Michigan Municipal
Corporation
James R. Haley, Mayor
James E., Leidlein, City Manager
Gerard Owczarzak, City Building Inspector
Richard A. Eisengruber
Thomas A. Kasunic
James N. McNally
Victor G. Marocco
Virginia Ann Micheletti
David Pochmara
Oresto J. Velardo
Members of City Council, for City of Harper
Woods, Jointly and Severally.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED WG tipie a malaae Nd enctie sain alias i
LARD MOR CFC is So ik ee bs ez ii
CO sos os is s cer eS Bb ch ecko cs 1
SUM ce ee 2
CONSTITUTIONAL AND STATUTORY
Pe i AT BD ioe oS 055s ca vieeeein dns 2
ea ee OE 2
Mev 5 ibs 6 ik Se is 5 ok 0 oS ov ccc 2
all i ig ESS tae 3
WHY THIS WRIT SHOULD BE DENIED.......... 12
I
THE “ARBITRARY AND _ CAPRICIOUS”
STANDARD IS CORRECTLY AND
CONSISTENTLY APPLIED BY THE CIRCUITS IN
LOCAL LAND USE DISPUTES ALLEGING
VIOLATION OF SUBSTANTIVE DUE PROCESS
caveat vaeeeei TEL TEV TL Peer eee ee 12
A. The Circuit ~Courts Have Consistently Recognized
That The Denial Of A Land Use Permit May, Under
Appropriate Circumstances, Constitute A
Substantive Due Process Violation............... 12
B. The Circuit Courts Uniformly Apply An Arbitrary Or
Capricious Standard In Reviewing Land Use
Decisions For Substantive Due Process Violations.. 14
II
THE SIXTH CIRCUIT FULLY CONSIDERED AND
CORRECTLY DECIDED THAT NO GENUINE
ISSUES OF MATERIAL FACT EXISTED IN THIS
CASE TO SUPPORT ANY VIOLATION OF
SUBSTANTIVE DUE PROCESS.................. 20
Page
A. In Land Use Litigation, Reference to Government
Action Which “Shocks the Conscience” is Useful to
Indicate the Degree of Irrationality Necessary to
State a Substantive Due Process Claim........... 20
B. Stanmdand OF Review: 1. ae 23
C. Summary Judgment Is Appropriate Where There
Are No Genuine Issues Of Material Fact Regarding
A Substantive Due Process Violation............. 24
CONCLUBIIG. Bocas. suck, ce av cre cous cneeieense 30
Vv
TABLE OF AUTHORITIES
Cases
Amsden v. Moran, 904 F. 2d. 748, (1st Cir. 1990)
cert denied, 498 U.S. 1041, 111 S. Ct. 713, 112
Sov Es 26, POR LIPOLY Hv 58s 5 60S 8
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
106 S. Ct. 2505, 91 L 2d. 2d. 202 (1986).....
Bateson v. Geisse, 857 F ‘. 1300 (9th Cir. 1988)
Bello v. Walker, 840 F. 124 (3rd Cir. 1988)
cert denied, 488 U.S..° ‘09S. Ct. 134, 102
Es EM, 20. TOF CISCS) S... ods aie
City of Cleburne v. Cleburne Living Center Inc.,
473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 24.
ee ae TE riers ey ee ee pea a
Collins v. City of Harker Heights, 503 U.S. 115,
112 S. Ct. 1061, 117 L. Ed. 2d. 261 (1992)...
DeBlasio v. The Zoning Board of Adjustment for
the Township of West Amwell, 53 F. 3d. 592
(FOG CO, TD baie hae bier borers.
Elsmere Park Club Ltd. Partnership v. Town of
Elsmere, 771 F. Supp. 646 (D. Del. 1991) ....
Ford Motor Co. v. McDavid, 259 F. 2d. 261 (4th
Cir. 1958) cert denied, 358 U.S. 908, 79 S. Ct.
234, 3 L. Ed. 2d. 229 (1958) ...............
Hanover Ins. Co. v. American Engineering Co., 33
F. 3d. 727 (6th Cir. 1994) ..................
Licari v Ferruzzi, 22 F. 3d. 344 (1st Cir. 1994)...
Littlefield v. City of Afton, 785 F. 24. 596 (8th
ng ipa SR at all
Matsushita Elect. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed.
UT MEE C50 OC Ws UnG oo ade OSnn¥ikdcec.
23, 24
16, 29
25, 26
20, 21, 22
16, 28
21
27
23
15
Page
Pace Resources, Inc. v. Shrewsberry Township, 808
F. 2d. 1023 (3rd Cir. 1987) cert denied, 482
US. 906, 107 S.Ct. 2482, 96 L. Ed. 2d 375
(1967) ...ncccuwi tee ous tenes eee bk.) 16
Papasan vy. Allain, 478 U.S. 265, 106 S. Ct. 2932,
92 E.. EG, De ae Snes doin ch sone 24
Pearson v. City of Grand Blanc, $61 F. 2d. 1211
Ce es EA Sele, ler passim
Regents of University of Michigar v. Ewing, 474
US. 214, 106 S. Ct. 507, 88 L. Ed. 2d. 523
(1965) . ... «6:04 +5 ingen dé A SAR 21
Scott v. Greenville County, 716 F.2d. 1409 (4th
Cie. 1963) oo civeniiens cutee ss ees 13, 14, 16,
17, 29
Scudder v. Town of Greendale, Indiana, 704 F. 2d.
Foo CPO Cie, SOBA dances avendaess dewns 18, 19
Shelton v. City of College Station. 754 F. 2d. 1251
(Sth Cir. 1985) cert denied,
477 US. 905, 106 S. Ct. 3276,
D1 L. Bd 26 BGG CFs obese gtk deus 17
Smithfield Concerned Citizens forFair Zoning v.
The Town of Smithfield, 907 F.2d. 239 (lst
Che, SOU oo isn cpae tcc eke eae os no 15
Sylvia Development Corp. v. Calvrt County,
Maryland, 48 F. 3d. 810 (4th Gr. 1995) ..... 25, 26, 27
Triomphe Investors v. City of Northwood, 49 F.
3G, 390, COG Ge TORE ecw vicccees cece 24, 25, 28
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1,
96 S. Ct. 2882, 49 L. Ed. 2d. 7i2 (1976) ..... 19
Village of Arlington Heights v. Méropolitan
Housing Development Corporaton, 429 U.S.
252, 97 S. Ct. 555, 50 L. Ed. 21. 450 (1977) .. 13
Village of Belle Terre v. Boraas, 46 U.S. 1, 94 S.
Ct. 1536, 39 L. Ed. 2d. 797 (1974) .......... 25
Walz v. Town of Smithtown, 46 F 3d. 162 (2nd
Cie. BEGG ocniteciscdccectet wactecincue 15, 16, 28
CONSTITUTIONS
United States Constitution
Fourteenth Amendment...................20-
RULES
Re OD cas ou cae a cateccnccdbeces
STATUTES 3
United States Code, Title 28
Donald A. Dripps, At the Borders of the Fourth
Amendment: Why A Real Due Process Test
Should Replace the Outrageous Government
Conduct Test, University of Illinois Law Review
WO Fs Ps Wie cass Pee eee re cccccuacse
Richard H. Fallon Jr., Some Confusions About
Due Process, Judicial Review, and
Constitutional Remedies, Columbia Law
Review, Volume 93, II (March 1992) ........
Thomas E. Roberts and Thomas C. Shearer, Land
Use Litigation: Takings and Due Process
Claims, the Urban Lawyer, Volume 24, No. 4
I lg oats ada 5 Ges 6-5 'c'o be kone
21
22
21
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No. 94-2001
IN THE
Supreme Court of the United States
OCTOBER TERM, 1994
WoopPOINTE INN ASSOCIATES LIMITED PARTNERSHIP;
THOMAS A. HANDLOs; and LUCILLE HANDLOS, Petitioners,
v.
City OF HARPER Woops, a Michigan municipal corporation;
JAMES R. HALEY, Mayor, JAMES E. LEIDLEIN, City Manager;
GERARD OWCZARZAK, City Building Inspector;
RICHARD A. EISENGRUBER, THOMAS A. KASUNIC, JAMES N.
MCNALLY, Victor G. MAROCCO, VIRGINIA ANN
MICHELETTI, DAVID POCHMARA, ORESTO J. VELARDO,
Members of City Council, for
City of Harper Woods, Jointly and Severally, Respondents.
On Petition for Writ of Certicrari to the
United States Court of Appeals for the Sixth Circuit
RESPONDENTS’ BRIEF IN OPPOSITION
Respondents, City of Harper Woods, et al. (“City” or
“Defendant”) respectfully request that this Court deny Wood-
pointe Inn Associates Limited Partnership, Thomas and Lucille
Handlos’ (“Petitioners”) Petition for Writ of Certiorari (“Peti-
tion”) seeking review of the United States Court of Appeals for
the Sixth Circuit’s (“Sixth Circuit”) opinion in this case.
OPINION BELOW
The opinion of the Sixth Circuit affirming the decision of the
United States District Court for the Eastern District of Michigan,
Southern Division, is reported at 48 F.3d. 1220, 1995 W.L. 94760
(6th Cir. 1995).
2
JURISDICTION
The Sixth Circuit decision was entered on March 7, 1995.
The Petition for Certiorari was docketed with the United States
Supreme Court on June 5, 1995. The jurisdiction of the United
States Supreme Court was invoked under 28 U.S.C.
Sec. 1254(1).
CONSTITUTIONAL PROVISIONS INVOLVED
The Fourteenth Amendment to the United States Constitu-
tion, Sec. I, provides:
“Section I... No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law...”
Title 42, U.S.C. Section 1983, provides that:
“Every person who under color of any statute, ordinance,
regulation, custom, or usage, or any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws shall be liable to the party
injured in any action at law, suit in equity, or other proper
proceeding for redress.”
STATEMENT OF THE CASE
A. Introduction
Petitioners, Woodpointe Inn Associates Limited Partnership,
Thomas A. Handlos and Lucille Handlos, purchased a vacant
piece of property (“Property”) in Respondent, City of Harper
Woods (“Defendant” or “City”) in 1981. Over the next decade,
Thomas A. Handlos (“Mr. Handlos”) proposed various develop-
ment schemes, none of which came to fruition. Finally, in 1991,
the City granted his request for a special use permit to construct a
hotel on the Property. Among the conditions attached to the
3
permit was that the project be commenced within one (1) year
and that a bond equivalent to five (5%) percent of the improve-
ment costs be posted prior to the time work on the project
commenced. Although the City granted the special use, no work
on the project had begun by November 1991, six (6) months after
the permit was granted. Mr. Handlos requested an extension in
January 1992, and again in May 1992, days before the one (1)
year period was to expire. The sind denied both requests and the
permit expired.
Mr. Handlos re-applied for a special use permit in October
1992. The City denied it, citing his inability to complete the
project over the past eight (8) years and his delinquent record in
paying property taxes. Even before the City’s denial, Mr. Handlos
had filed suit in United States District Court for the Eastern
District of Michigan, alleging that the denial of the special use
permit was a violation of his right to substantive due process, as
well as alleging other constitutional violations. Ultimately, the
United States District Court granted the City’s motion for sum-
mary judgment and the Sixth Circuit affirmed this decision.
B. Factual History
Petitioners’ Property is zoned for commercial development.
Under the City of Harper Woods Zoning Ordinance, Sec-
tion 10-164, hotels are permitted in a general business district
only after special approval.
Section 10-187 (B), Procedures For Granting Special Ap-
proval Of Designated Land Uses, specifies that “[t]he City
Council as herein created, shall have the following specific powers
and duties concerning special approvals. Section 2, Authorization,
specifies:
The special approval of specific land uses and activities, as
required under section 10-164, may be authorized by the
City Council provided that no application for special ap-
proval shall be acted upon by the City Council until after
(1) a written recommendation is prepared and filed with the
City Council by the City Planning Commission, which report
4
shall become part of the record, and (2) a public hearing is
held by the Council.
Section 6, Standards, specifies that no special approval shall
be granted by Council unless the special use meets certain
standards. The Council is to consider whether the special use:
(a) Will promote the use of land in a socially and economi-
cally desirable manner for those persons who will use
the proposed land use or activity; for those landowners
and residents who are adjacent; and for the City as a
whole.
(b) Is necessary for the public convenience at the location.
(c) Is compatible with adjacent uses of land.
(d) Is so designed, located and proposed to be operated that
the public health, safety and welfare will be protected.
(e) Can be adequately served by public services and facili-
ties to existing land uses in the area.
(f) Will not cause injury to the value of other property in
the neighborhood in which it is to be located.
(g) Will protect the natural environment and help conserve
natural resources and energy.
(h) Is within the provisions of uses requiring special ap-
proval as set forth in the various zoning districts herein,
is in harmony with the purposes and conforms to the
applicable regulations of the zoning district in which it
is to be located, and meets applicable site design stan-
dards for each use specified in Section 10-164.
(i) Is related to the valid exercise of the City’s police power
and purposes which are affected by the proposed use or
activity.
Section 7, Approval, notes that:
City Council may deny, approve, or approve with conditions,
requests for special approval of a land use. The decision on a
special approval shall be incorporated in a statement of
5
conclusions relative to the specified land use under consider-
ation. The decision shall specify the basis for the decision,
and any conditions imposed. Any approval given by the City
Council under which premises are not used or work is not
started within six months or when such use or work has been
abandoned for a period of six months shall lapse and cease to
be in affect [sic].
Between 1981 when Mr. Handlos purchased the Property,
and 1991 when the City granted the request for special use,
Mr. Handlos approached the City on numerous occasions with
proposals for various developments for the Property. A chronolog-
ical review of these proposals illustrates that the difficulty encoun-
tered by Mr. Handlos in developing the Property stemmed not
from delays due to obstructions imposed by the City, but rather
through self-inflicted delays. Mr. Handlos proposed various devel-
opmeni projects for the Property from 1981 through 1991:
1981
In 1981, Petitioners submitted plans for a one hundred and
twenty (120) room, four (4) story Sheraton Hotel (Sixth Circuit
Joint Appendix, p 367; hereafter “JA "). The City initially wel-
comed the development, anticipating that the hotel project would
bring new jobs to the City and provide needed tax revenue. As
time passed, however, problems with the design of the hotel and
its impact on City services became more apparent. Although
Woodpointe Inn Associates Limited Partnership was formed for
the purpose of developing the hotel project, it appeared that
neither Woodpointe nor Mr. Handlos had the financial capability
or experience to see the project through to completion.
1985
Even though Petitioners first submitted plans for the hotel in
1981, Petitioners’ request for a special land use permit to develop
the hotel was first presented to the City Council on January 16,
1985. The site plan did not comply with the requirements of the
City Zoning Ordinance, and the permit was denied. (JA 369).
Council considered a second request for a special use permit on
6
December 16, 1985, and again voted to deny the request, since
the site plan was still not in compliance with the requirements of
the Zoning Ordinance.
1986
In 1986, the City Planning Commission approved plans for a
two (2) story Woodpointe Office Building. Even though both the
City Planner and the Planning Commission approved the devel-
opment of the office building, Petitioners failed to pursue the
project and it was never built.
1988
In 1988, Mr. Handlos submitted a plan for a thirty eight
(38) unit senior citizen housing development. As with the office
building proposed in 1986, the proposal for senior housing was
never pursued by Petitioners beyond the submission of the initial
plan.
1989
No further effort was made by Mr. Handlos to construct a
hotel or any other project on the Property until November 1989,
when Petitioners filed a lawsuit against the City in the state court
alleging violation of constitutional rights in connection with the
City’s refusal to grant a special use permit. The lawsuit sought
declaratory relief, mandamus and damages. It was dismissed by
the Wayne County Circuit Court in April 1990. (JA 344).
1990-1991
In July 1990, Mr. Handlos again sought a special land use
permit to construct a hotel on the Property. The City Council
voted to approve the special land use permit on May 6, 1991,
subject to the following conditions:
1, All those conditions as specified by the Planning Com-
mission in their October 24, 1990 approval, with the
exception that the developer has one (1) year from this
date to commence construction of this project;
7
2. The developer shall obtain and meet the requirements for
all building, electrical, plumbing, mechanical and other
such permits as may be necessary;
3. The developer shall submit a plan for the discharge for
sanitary sewer that meets with the approval of the City
engineer and does not diminish or adversely affect the
sanitary sewer system service, and said plan shall call for
the developer to incur any related costs;
4. The developer shall be required in accordance with Ordi-
nance, Section 187 (A), to furnish the city with a cash
deposit, certified check, irrevocable bank letter of credit
or a surety bond from a surety company that is listed on
the federal register, which is issued by the Department of
Treasury, in an amount equivalent to five (5%) percent of
the improvement costs to assure compliance with all
ordinance and permit requirements; and
5. The developer shall be required to relocate, at his ex-
pense, any existing public utilities located on the property
to the road right-of-way. (JA 371).
Although Petitioners’ Brief implies that Mr. Handlos pur-
sued a hotel development project over the course of approxi-
mately ten (10) years, the facts show otherwise.
In 1985, when Mr. Handlos requested a special use permit
for the hotel project, there was public opposition to the develop-
ment of the Property as a hotel. James McNally, a defendant in
the District Court suit, voiced strong opposition to the hotel
project. As noted by Petitioners (Petition at p. 3), Mr. McNally,
a citizen whose home was located in close proximity to the
proposed project, was present at public meetings and circulated
information relating to the proposed development. Throughout
this period, however, Mr. McNally was a private citizen, and had
no connection to the municipal government.' The objections
voiced by Mr. McNally and by other citizens of the City included
'Mr. McNally was elected to the City Council in May 1991, after
Plaintiff's special use permit was issued.
concerns regarding traffic congestion, the size of the project,
increased noise and activity due to its location in close proximity
to a residential neighborhood, concerns over parking and the
necessity for increased city services provided to the hotel. (Peti-
tioner’s Appendix at A-15 - A-20).
Although Petitioners assert that the sudden deafness and
vertigo suffered by Mr. Handlos following the City’s approval of
the special use permit in May 1991 was responsible for the fact
that the project was not commenced, a review of the facts shows
otherwise. On August 7, 1991, Mr. Handlos sent a letter to the
City indicating that the size of the project would be cut in half.
(JA 28). Although the City Ordinance allowed six (6) months
for construction to commence after approval by City Council, and
Mr. Handlos was granted twice that amount of time, construction
still did not begin. On January 10, 1992, he requested a one (1)
year extension to begin construction. The request was denied by
City Council on January 20, 1992. (JA 373). Among the reasons
noted for the denial of his request for additional time was that
Mr. Handlos had been given a reasonable amount of time to
substantially commence the project.’ Furthermore, he had in-
formed the City Council on May 6, 1991, that financing for the
project was in line, and when questioned regarding who the
financial backers of the project were, he declined the opportunity
to answer that question. Moreover, Mr. Handlos had represented
to the City Manager that the project was at a stage where the
architect and construction manager could take over the project,
without the need for his involvement.
Second Request For Extension
On May 4, 1992, shortly before Petitioners’ special use
permit was due to expire, another request for extension of time
was made to the City Council. City Manager, James Leidlein,
? Brandon Rogers, the City Planning Consultant, stated that the one (1)
year period allowed by the City for Plaintiff to commence construction was very
reasonable. Mr. Rogers also noted that most bona fide projects should be able to
be started within a year or that it would be otherwise premature to file them.
(JA 479-480).
9
addressed the City Council and detailed the numerous problems
which the City had encountered since the hotel project was first
proposed. Mr. Leidlein noted that Mr. Handlos had cited sewer
problems as one of the major reasons that he was unable to begin
construction of the hotel within a one (1) year period.
Mr. Handlos had been advised by the City of sewer capacity
problems in the area more than a year before, however, when the
City indicated to him that sewer problems might affect the
feasibility of his project. (In 1985, when the project was first
proposed, the City had a potential solution to sewer capacity
problems, but because of changes in the sewer system and in
environmental laws, the former solution was no longer viable.) As
a condition to the special use approval, the City required
Mr. Handlos to submit a plan for the discharge of sanitary sewer
meeting the approval of the City Engineer, which did not dimin-
ish or adversely affect the sanitary sewer system. Mr. Leidlein
indicated further that other than a few phone calls, Mr. Handlos
had not submitted any plans to the City or the building depart-
ment showing how he was going to address the sewer question. He
noted that Mr. Handlos had “continually assured the City that
once he received City approval, he was ready to go.” Although the
project was approved almost a year before, “. . . to this date the
project essentially has gone nowhere.” Mr. Leidlein noted that
property taxes on the Property were still in arrears, with the last
payment made in March of 1991, for the 1988 and 1989 taxes.
The 1990-1991 taxes had yet to be paid, and the delinquency was
in excess of $8,500.00. Based on Petitioners’ failure to comply
with the reasonable conditions of the special use approval,
Mr. Leidlein recommended that the second request for an exten-
sion of time in which to commence the project be denied. (JA
375).
City Council voted to deny the request for an extension of
time to commence construction, citing many of the same reasons
noted in the January 1992 denial. Furthermore, the Council noted
that Mr. Handlos had failed to submit the bond which was a
specific requirement of the City’s approval of the construction
project.
10
In an apparent effort to commence construction by the
May 6, 1992 deadline, Mr. Handlos began doing ground work on
the Property himself. City employees observed Mr. Handlos, the
general partner and sole known financier of the multi-million
dollar project, taking a sledge hammer to the curb in order to
construct a curb cut. The May 4, 1992 City Council Minutes
noted, “... Mr. Handlos has been seen personally wielding a
sledge hammer to do the curb cuts without using proper signage
or proper safety precautions taken to protect the citizens, which
shows that the proper backing is not there for such a large
construction project when the general partner of the partnership is
out there doing the ‘grunt work’.” (JA 375).
Re-Application For Special Use
Following expiration of the special use permit, Mr. Leidlein
informed Mr. Handlos that it would be necessary for him to
reapply before construction could begin. (JA 381). Petitioners
reapplied in June 1992 and City Council scheduled a hearing to
consider the request in October 1992. Prior to the time the City
Council met to consider the request, a lawsuit was filed by
Petitioners in the United States District Court for the Eastern
District of Michigan, Southern Division. Although the City Plan-
ning Commission and the City Manager approved the site plan,
ultimately the City Council voted to deny the special use permit,
expressing doubts regarding the ability of Mr. Handlos to com-
plete the project. Pursuant to City of Harper Woods Zoning
Ordinance, Section 10-187 (B) (6) and (7), the City Council was
required to consider whether the special use complied with the
standards set forth in the Ordinance, and following such consider-
ation was vested with the authority to deny, approve, or approve
with conditions, any request for special approval of a land use.
(City of Harper Woods Zoning Ordinance No. 265, § 10-187 B
(6) and (7)). Only after the City Council had complied with the
requirements of Section 10-187 B and granted special approval,
was the Council required to permit the special use pursuant to
Section 10-164 of the Zoning Ordinance.
il
Numerous citizens spoke in opposition to the project at the
public meeting held on October 5, 1992, expressing concern
regarding traffic and lack of parking, as well as the fact that the
developer had never started work on the project, in spite of
previous approvals. City Council voted to deny the special use,
noting that the project had been before the City for in excess of
eight (8) years, and had consumed a considerable amount of time
and effort on the part of the City administration. Moreover, City
Council noted that the developer had failed to pay property taxes
in a timely fashion, and was currently delinquent on the 1991 and
1992 taxes. Finally, the fact that Mr. Handlos had made represen-
tations assuring the City of his ability to find a solution to the
sanitary sewer issue, and the fact that he had, in an attempt to
commence construction prior to the expiration of the special use
permit issued May 1991, begun breaking out the concrete curbs
with a sledge hammer and issued a press release stating that he
would complete only the first two floors of the project due to an
“uncertain economy” all led the Council to express doubts re-
garding Petitioners’ ability to complete the project. (JA 182).
Petitioners’ suit, filed prior to the time the City Council voted to
deny the re-application for a special use claimed that the City and
various employees and members of the City Council violated
Petitioners’ rights to substantive due process.
Although Petitioners complained that the City “maliciously”
and “drastically” increased the property assessment on the Prop-
erty from $33,210.00 to $157,500.00 in order to “harass”
Mr. Handlos, the increase in assessment took place in March
1987, four (4) years before Petitioners’ special use permit was
issued.’ Mr. Handlos’ statement that the City enacted a fast food
restaurant restriction ordinance for the sole purpose of “blocking”
his ability to construct a fast food restaurant on the proposed hotel
site is equally without merit. In his deposition testimony,
Mr. Handlos stated that he had never attempted to construct a
fast food restaurant on the Property and had never applied for
>The City assessor, Gerald Owczarzak, noted that there have been dra-
matic increases on numerous parcels of commercial property since he was
assessor. (JA 485).
et a es ee
12
approval to construct a fast food restaurant on the Property. (JA
389).
On February 24, 1993, the United States District Court,
Eastern District of Michigan, dismissed all counts of Petitioners’
Complaint upon Defendant’s motion to dismiss, other than
Count II (Equal Protection) and Count III (Substantive Due
Process).
On August 25, 1993, the District Court granted summary
judgment on the remaining counts, granting Defendant’s motion
and dismissing the claims in their entirety.
Petitioners next appealed the Court’s order to the United
States Court of Appeals for the Sixth Circuit, which affirmed the
District Court’s order in an opinion dated March 7, 1995.
WHY THIS WRIT SHOULD BE DENIED
Petitioners apparently base their argument for granting a
Writ of Certiorari on Supreme Court Rule 10.1(a) and (c)
contending that the Sixth Circuit decision conflicts with other
circuit court rulings. In fact, the Sixth Circuit decision is
consistent with this Court’s prior rulings and the other circuit rulings
are either in accord, or are clearly, factually distinguishable.
I.
THE “ARBITRARY AND CAPRICIOUS” STANDARD
IS CORRECTLY AND CONSISTENTLY APPLIED BY
THE CIRCUITS IN LOCAL LAND USE DISPUTES
ALLEGING VIOLATION OF SUBSTANTIVE DUE
PROCESS RIGHTS.
A. The Circuit Courts Have Consistently Recognized That
The Denial Of A Land Use Permit May, Under Appropri-
ate Circumstances, Constitute A Substantive Due Process
Violation
The general principles underpinning federal substantive due
process in the context of land use related civil rights litigation are
well-settled. The United States Supreme Court has explicitly
13
recognized that citizens have a substantive due process right not
to be subjected to arbitrary or irrational zoning decisions, Village
of Arlington Heights v. Metropolitan Housing Development Cor-
poration, 429 U.S. 252, 263, 97 S. Ct. 555, 562 50 L. Ed. 2d. 450
(1977), and all of the various circuits recognize that, under
appropriate circumstances, the denial or withholding of a building
permit or site plan approval may constitute a substantive due
process violation. Pearson v. City of Grand Blanc, 961 F. 2d.
1211, 1217 (6th Cir. 1992); see also Littlefield v. City of Afton,
785 F. 2d. 596, 605-607 (8th Cir. 1986).
As more fully set forth below, the standard applied by all of
the circuit courts in reviewing substantive due process claims in
the land use/zoning context is whether the governmental action
was arbitrary and capricious and/or rationally related to a legiti-
mate governmental interest. However, uniformity among the
circuits in the application of the arbitrary and capricious standard
does not and cannot, as Petitioners suggest, guarantee uniformity
of results. Zoning and land use disputes are peculiarly fact
dependent. The various circuits have been asked to apply the
arbitrary and capricious standard in many contexts involving land
use cases. It is therefore incongruous to suggest, as Petitioners do,
that differing results necessarily mean that the circuits disagree as
to the appropriate principles to be applied.
As stated in Scott v. Greenville County, 716 F. 2d. 1409,
1420 (4th Cir. 1983):
While defendants are undoubtedly correct in asserting that
challenges to local zoning decisions are rarely successful
outside the context of racial discrimination . . . the primary
distinction between winning and losing the case is the suffi-
ciency of evidence and not that the claim is not facially
viable . . . regardless of the deference normally afforded
zoning practices by the courts, the constitution does not
tolerate arbitrary and unreasonable action. Citing Altair
Builders Inc. v. Village of Horseheads, 551 F. Supp. 1066,
1069 (W.D. N.Y. 1982)
14
While factual differences affect the disposition of each case,
the essential guiding principles employed by the circuits are
consistent. All circuits recognize that land use plaintiffs who bring
substantive due process claims face difficult evidentiary hurdles.
Moreover, all circuits recognize the prudential concern that
federal courts should not sit as a super-legislature in land use
cases involving peculiarly local interests. A thorough review 7 ihe
case law illustrates that the circuits have noted discrete subcat-
egories of governmental activities which typically evidence arbi-
trary and capricious action - for instance, decisions based on
personal animus, discrimination or improper political objectives,
and denial of a permit or an application when it is otherwise
ordinarily granted as of right. These factual subcategories do not
create separate standards of review for alleged substantive due
process violations; the essential test remains whether the underly-
ing action was arbitrary or capricious.
B. The Circuit Courts Uniformly Apply An Arbitrary Or
Capricious Standard In Reviewing Land Use Decisions
For Substantive Due Process Violations
Contrary to Petitioners’ contention, there is substantial uni-
formity among the circuits with respect to the appropriate review
of substantive due process claims in the land use context. The
following circuit by circuit survey illustrates that an arbitrary or
capricious standard of review is consistently applied. A somewhat
more detailed analysis of the factual basis underpinning the cited
cases is included because, as the Scott court emphasized, the
decisions are fact-dependent.
Petitioners attempt to cloud the underlying uniformity
among the circuits by plucking out of context quotes from cases
which differ factually. In cursory fashion, Petitioners catalogue
purportedly “analogous” cases where the courts reached dissimi-
lar results and imply a lack of uniformity of the law. Petitioners
also argue that, in light of different results obtained in different
circuits, the trial and circuit court erred in this case in concluding
that no genuine issue of material fact existed. On these bases,
Petitioners request the Supreme Court’s assistance in reconciling
the “disparity” among circuits.
15
Petitioners’ attempt fails on two grounds. First, upon closer
examination, it is evident that in each of the cited cases the circuit
courts uniformly applied the “arbitrary and capricious” standard
of review in analyzing the respective plaintiffs’ federal substantive
due process claims. Second, as the cases cited by Petitioners
make clear, the respective decisions were premised, as all sub-
stantive due process claims are, on specific factual findings.
The First Circuit applies the following test in considering
substantive due process challenges to a land use ordinance: “a
court should not set aside the determination of public officers in
[zoning] matter[s] unless it is clear that their action ‘has no
foundation in reason and is a mere arbitrary or irrational exercise
of power having no substantial relation to the public health, the
public morals, the public safety or the public welfare in its proper
sense’” Smithfield Concerned Citizens for Fair Zoning v. The
Town of Smithfield, 907 F. 2d. 239, 243 (ist Cir. 1990). In
Smithfield, plaintiffs complained that the new zoning ordinance,
which increased lot size requirements and rezoned commercial
areas to residential, was arbitrary inasmuch as it was “not
grounded in the necessary planning and analysis, by and with the
participation of experts in the field.” The Smithfield court de-
clined to micro-analyze the scope and extent of the council’s
information gathering process and dismissed plaintiff's claims. Jd.
at 245. In Licari v. Ferruzzi, 22 F. 3d. 344 (ist Cir. 1994), the
First Circuit, while admitting that the refusal to issue building
permits generally does not implicate substantive due process,
nonetheless emphasized that such claims were not foreclosed and
stated that “[w]e have never announced a rule... [preclud-
ing] ... substantive due process violations by land use planning
Officials.” Id. at 349.
In Walz v. Town of Smithtown, 46 F. 3d. 162 (2nd Cir.
1995), the Second Circuit also applied an arbitrary and capricious
standard to a claim for violation of substantive due process under
the following distinguishing facts. In Walz, plaintiff's water well
failed, which forced him to apply for emergency connection to
public water service. The emergency application was approved by
appropriate authorities, but the highway department refused to
16
grant plaintiff an excavation permit unless the plaintiff granted
the highway department a fifteen (15) foot easement. Typically,
such permits were granted as of right. The Walz Court found that,
denial of the permit was not only arbitrary and capricious but, the
court implied, extortionary.
The Third Circuit also applies the arbitrary and capricious
standard. Bello v. Walker, 840 F. 2d. 1124 (3rd Cir. 1988), cert
denied, 488 U.S. 851, 109 S. Ct. 134, 102 L. Ed. 2d. 107 (1988).
See also, DeBlasio v. The Zoning Board of Adjustment for the
Township of West Amwell, 53 F. 3d. 592 (3rd Cir. 1995) The
Third Circuit, when faced with claims that a municipality’s
zoning regulation violated plaintiff's right to substantive due
process, requires plaintiff to prove that the regulation was arbi-
trary or irrational. Bello at 1129 citing Pace Resources, Inc. v.
Shrewsberry Township, 808 F. 2d. 1023 (3rd Cir. 1987) cert
denied 482 U.S. 906, 107 S. Ct. 2482, 96 L. Ed. 2d. 375 (1987).
In Bello, plaintiff sought to develop, in five phases, multiple
family housing in conformity with applicable zoning restrictions.
Plaintiff built phase I then applied for a building permit for
phase V. Defendants denied the permit ostensibly because
phase II through IV were not completed. Significantly, the Bello
Court could find no legitimate reason why the permit was not
issued. In short, the actions of the municipality had no rational
relationship to any legitimate governmental interest. Jd. at 1130.
Petitioners alleged that Mr. McNally, while not a member of
the City Council and while acting solely as a private citizen,
organized public opposition to Petitioners’ proposed project.
Moreover, Mr. McNally’s opposition to the project was not
“illegal” or “improper” as was the conduct contemplated in
DeBlasio. The official’s conduct in DeBlasio was improper be-
cause, despite his financial interest in the outcome, he did not
excuse himself from participating in the proceedings. Here,
Mr. McNally was not a member of the City Council when
Petitioner’s building permit was approved and has never had any
financial interest in the success or failure of Petitioners’ project.
In Scott v. Greenville County, supra, the Fourth Circuit held
the applicable standard in such land use cases to be “whether
17
there is a basis for concluding an abuse of discretion [or] caprice
in [a] zoning administrator’s refusal to issue a building permit.”
In Scott, plaintiff presented evidence Suggesting that the city
council acted completely outside its authority, and for racially
discriminatory reasons, in issuing a moratorium on building per-
mits, of which plaintiff's was the only application pending. Public
opposition to the project arose in part because of fears that low
income housing would bring minorities and crime. The council
delayed approval of the permit in order to attempt to rezone the
property and thus create a basis for denying the permit where
none previously existed.
The Scott court noted that the federal courts are generally
“reluctant to sit as a zoning board of appeals” when presented
with claims which, though couched in constitutional language, in
reality amount only to a run of the mill dispute between a
developer and a town planning agency. The court stated that when
a Zoning action is “tainted with fundamental procedural irregular-
ity, racial animus or the like, such action can amount to an
actionable denial of due process.” Jd. at 1419.
The Fifth Circuit likewise recognizes that the denial of a
variance may constitute a property right, the arbitrary deprivation
of which implicates substantive due process rights. Shelton v. City
of College Station, 7154 F. 2d. 1251 (Sth Cir. 1985), cert denied,
477 U.S. 905, 106 S. Ct. 3276, 91 L. Ed. 2d. 566 (1986). In
Shelton, the Fifth Circuit reversed the district court’s entry of
summary judgment against plaintiff, questioning whether the
denial of a routine variance was arbitrary and capricious, with no
substantial relation to the general welfare. Id. at 1255. A question
of fact existed based on defendants’ admission that almost every
business in the area, including the subsequent occupier of plain-
tiff's premises (and three adjacent businesses), had been granted
the same routine parking variance sought by plaintiff.
Contrary to Petitioners’ assertions, the Sixth Circuit has not
merely borrowed the “shock the conscience” standard applicable
to criminal cases in determining whether a substantive due
process violation has occurred in land use disputes. Rather, as a
full reading of the Pearson decision makes clear, the Sixth
18
Circuit, like every other circuit, reviews zoning decisions for
violations of substantive due process under an “arbitrary and
capricious” standard.
In order to avoid confusion over the applicable standard of
review, however, the Pearson court attempted to define the degree
of “arbitrariness” and/or “capriciousness” necessary under fed-
eral law to sustain a claim for violation of substantive due process.
The Pearson court emphasized that the “shock the conscience”
reference used in other substantive due process contexts was
useful to emphasize the degree of arbitrariness required to set
aside a zoning decision by a local zoning authority — and to
underscore the overriding precept that “arbitrary and capricious”
in the federal substantive due process context means something
far different than in state administrative law. Id. at 1222. The
Pearson court further noted that “shocks the conscience” refers to
extreme irrationality.
Far from creating a separate and distinct substantive due
process standard for land use cases, the Pearson Court merely
applied the prevailing arbitrary and capricious standard. As in
most federal land use cases, the Pearson Court concluded that
based on the record, plaintiff failed to establish a substantive due
process violation.
The Seventh Circuit also recognized that the enforcement of
a zoning decision will only be overturned if it is arbitrary or
applied with discriminatory intent. Scudder v. Town of Greendale,
Indiana, 704 F. 2d. 999 (7th Cir. 1983). The Seventh Circuit
defines arbitrary as being reached “without adequate determining
principle” or “unreasonable”. Id. at 1002. In Scudder, the Sev-
enth Circuit affirmed the district court’s dismissal under the
following facts. Plaintiff applied for permits to build two resi-
dences on appropriately zoned property. While applications were
pending, a neighbor (a private citizen who held no position in the
Greendale Town Government) wrote a letter to the Board of
Trustees urging denial of the permit. The Board eventually denied
the permit on the basis that the property did not abut a dedicated
street as required by the ordinance. Plaintiff sued for due process
19
violations alleging a “conspiracy” to deny plaintiff the use of his
land.
The Scudder court dismissed the action because plaintiff
proffered no evidence to support his claim that the ordinance was
applied discriminatorily. Id. at 1003. The Scudder court also
discounted plaintiff's heavy reliance on the neighbor’s opposition.
“Certainly the federal constitution does not prohibit a citizen in a
democratic society from voicing an opinion to a duly elected
official regarding the denial or issuance of a permit.” Id.
The Eighth Circuit similarly recognizes that an arbitrary
denial of a building permit may state a claira for a substantive due
process violation. Littlefield v. City of Afton, 785 F. 2d. 596 (8th
Cir. 1986). In Littlefield, plaintiff alleged that the defendants
violated its substantive due process rights by conditioning the
The Ninth Circuit is consistent with Pearson. In Bateson vy.
Geisse, 857 F. 2d. 1300 (9th Cir. 1988), plaintiff intended to
develop a condominium project on property within an appropri-
ately zoned area. Bateson satisfied the final requirements imposed
on the building permit, and requested issuance of the permit. The
request was denied after the City imposed additional require-
ments on the permit and initiated a zoning change on plaintiff's
property which would have prevented him from building the
proposed project. The Bateson court noted that plaintiff was
required to prove that the interference with his property rights was
“irrational or arbitrary”, Id. at 1303 citing Usery v. Turner
Elkhorn Mining Co., 428 U.S. 1, 15, 96 S. Ct. 2882, 2892, 49 L.
Ed. 2d. 752 (1976), and concluded that defendants acted arbi-
trarily. The city’s regulations provided that once an applicant’s
building plans complied with the code and other applicable laws
and the fees were paid, the building official “must” issue a
building permit to the applicant. The regulations did not provide
for review by the city council before a permit could issue.
20
Nonetheless, the city council voted to withhold issuance of the
permit without any process whatsoever.
The circuits are in substantial agreement regarding applica-
tion of the arbitrary and capricious standard of review in substan-
tive due process land use claims, and have not “made inconsistent
interpretations” of what constitutes due process violations in land
use litigation.
There is uniform acknowledgement that succeeding on such
grounds is difficult however, and that run of the mill zoning or
building disputes, like this case, do not rise to the level of a
constitutional violation.
Il
THE SIXTH CIRCUIT FULLY CONSIDERED AND
CORRECTLY DECIDED THAT NO GENUINE IS-
SUES OF MATERIAL FACT EXISTED IN THIS
CASE TO SUPPORT ANY VIOLATION OF SUB-
STANTIVE DUE PROCESS.
A. In Land Use Litigation, Reference To Government Action
Which “Shocks The Conscience” Is Useful To Indicate
The Degree Of Irrationality Necessary To State A Sub-
stantive Due Process Claim.
In land use litigation alleging substantive due process viola-
tions, reference to government action which would “shock the
conscience” is useful and illustrative of the degree of irrationality
and arbitrariness necessary to state a substantive due process
claim. Expressed another way, the state action must show “outra-
geous government conduct.” These references to the degree of
“arbitrary and capricious” behavior necessary to state a claim are
an acknowledgement that the court must exercise care not to
expand the concept of substantive due process “because guide-
posts for responsible decisions in this uncharted area are scarce
and open-ended.” Collins v. City of Harker Heights, 503 US.
115, 112 S. Ct. 1061, 117 L. Ed. 2d. 261, 273 (1992) quoting
21
Regents of University of Michigan v. Ewing, 474 US. 214,
225-26, 106 S. Ct. 507, 88 L. Ed. 2d. 523 (1985).
This admonition is particularly appropriate in land use litiga-
tion matters, an area of historically local control, and may reflect
fear of uncontrolled judicial intervention in such zoning matters.
Roberts and Shearer, Land Use Litigation: Takings and Due
Process Claims, the Urban Lawyer, Volume 24, No. 4 (Fall
1992) at 839. (Indeed, Professors Roberts and Shearer refer to
Elsmere Park Club Ltd. Partnership v. Town of Elsmere, 771
F. Supp. 646 (D. Del. 1991), a case cited by Petitioners in
support of their claims, as an example of unwarranted judicial
intervention in zoning matters). The requirement that govern-
ment not be “arbitrary or capricious” in its actions is a constitu-
tionally imposed limit to prevent government from abusing its
power. Collins, 112 S. Ct. at 1069, 117 L. Ed. 2d. at 274.
In Pearson v. City of Grand Blanc, supra the Sixth Circuit
discussed the usefulness of measuring the arbitrariness of state
action with reference to “shocks the conscience” terminology.‘
The Pearson court stated that the state action must be “arbitrary
and capricious action in the strict sense”, with no rational basis
for the decision. Pearson at 1221. Pearson went on to state that
the “shocks the conscience” terminology was useful in the zoning
context to emphasize the degree of arbitrariness required to set
aside a zoning decision by a local authority — and to underscore
the overriding precept that “arbitrary and capricious” in the
federal substantive due process context means something far
different than in state administrative law, where state administra-
tive action may be set aside as “arbitrary and capricious” on the
grounds that it is not supported by substantial evidence. Pearson
at 1222. “Shocks the Conscience” terminology refers to extreme
irrationality, which is consistent with the standard applied by
other circuits.
* Donald A. Dripps, At the Borders of the Fourth Amendment: Why A Real
Due Process Test Should Replace the Outrageous Government Conduct Test,
University of Illinois Law Review Vol. 1993, No. 2, cited by Petitioners is
inapposite to the facts of this case, since it deals exclusively with the constitu-
tional law of search and seizure under the Fourth Amendment.
EES
22
The continuing relevance of this terminology was recently
noted. Richard H. Fallon Jr., Some Confusions About Due
Process, Judicial Review, and Constitutional Remedies, Columbia
Law Review, Volume 93, II (March 1992). [hereafter, Fallon,
Due Process}. Professor Fallon, in analyzing this Court’s recent
decision in Collins v. City of Harker Heights, supra noted that the
decision could be interpreted to suggest that conduct could be
arbitrary in a constitutional sense only if it shocked the con-
science. Id., at 325.
The underlying principle by which all of the circuits deter-
mine whether a substantive due process violation has been stated
is whether the government’s action has been shown to be “arbi-
trary and capricious”. (See Argument I, supra). As Professor
Fallon notes, the underlying idea is that government officials must
act on “public spirited” rather than “self-interested or invidious
motivations”, and that there must be a rational or reasonable
relationship between government’s ends and its means. Fallon,
Due Process, supra at 310.
Accepting that the substantive rights protected by the Due
Process clause of the Constitution are not susceptible to a simple
and easily stated formula, the generally accepted view that gov-
ernment action must not be arbitrary and capricious, that it must
be based on the public interest rather than personal motivation,
and that it should accord with widely shared moral intuitions or
principles, makes the terminology employed by the Pearson court
appropriate to a consideration of whether a substantive due
process claim has been stated.
Considered in this context, Professor Fallon’s article supports
the approach taken by the Sixth Circuit in analyzing substantive
due process claims. He states that in cases of this kind, the courts
generally will render a judgment of unconstitutionality only when
government, in its view, has behaved in a way that can be shown
to be wrongful by relatively direct argumentative appeal to some
moral intuition or relatively determinate principle that it believes
to be widely shared and, preferably, rooted in history. Fallon, Due
Process, supra at 321.
23
Testing this formulation against the Pearson “shocks the
conscience” approach provides appellate courts with a rough yard
stick of what society would judge to be a grievous breach of the
government's duty to pursue legitimate ends in reasonable ways.
There is general agreement among the circuits that “arbi-
trary and capricious” conduct by the government is the standard
by which substantive due process claims should be assessed. It is
in determining what actions constitute “arbitrary and capricious”
conduct that difficulties arise. Given the complexity and the reach
of the Due Process clause it is unlikely that this question can be
easily resolved. Weighing against the expansion of this area of the
law, however, are concerns regarding the increasing volume of
federal litigation, the necessity of developing constitutional stan-
dards defining the scope of duties and liabilities of state officials
and, finally, a reluctance to displace traditional state authority and
alter “longstanding balances of power in the federal system.” Jd.,
at 350.
Given the need to strike a proper balance between the
traditionally local nature of land use regulation and the constitu-
tionally mandated protection from arbitrary government behavior,
the courts have wisely concluded that government action is
implicated under the Due Process clause only when it engages in
“arbitrary” conduct which is repugnant to widely held beliefs, but
which is not, in any sense, the equivalent of the state law standard
prohibiting land use regulation without substantial evidence re-
garding its necessity. The Pearson approach is an appropriate
expression of this balancing of interests.
B. Standard Of Review
The Sixth Circuit reviewed the District Court’s grant of
summary judgment de novo. Hanover Ins. Co. v. American
Engineering Co., 33 F. 3d. 727, 730 (6th Cir. 1994). Once a
defendant makes a properly supported motion for summary judg-
ment, the burden shifts to the plaintiff to set forth specific facts
showing that there is a genuine issue for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d. 202
(1986). Summary judgement is justified if, based on all of the
ad
evidence presented, including pleadings, depositions and answers
to interrogatories, the court is satisfied there is no genuine factual
issue for trial and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c).
Although the court must draw any permissible inference
from the underlying facts in the light most favorable to the party
opposing the motion, only reasonable inferences from the evi-
dence need be considered by the court. Whether an inference is
reasonable must be considered “in light of the competing infer-
ences” to the contrary. Matsushita Elect. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 588, 106 S. Ct. 1348, 89 L. Ed. 2d.
538 (1986). A court is not bound to accept as true a legal
conclusion couched as a factual allegation. Furthermore, the
court is not bound to credit, and indeed may disregard assertions
where no actual facts in support of the assertions were alleged.
Papasan vy. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932 92 L.
Ed.2d. 209, (1986).
In the end, the non-moving party must do more than present
a “scintilla” of evidence in its favor. Anderson, 477 U.S. at 252. If
the evidence is merely “colorable” or “not significantly probative”
a motion for summary judgment may be granted. Anderson, 477
US. at 249-250.
C. Summary Judgment Is Appropriate Where There Are No
Genuine Issues Of Material Fact Regarding A Substan-
tive Due Process Violation
To state a claim that the City’s action violated substantive
due process, Petitioners must demonstrate that they had a prop-
erty interest which could support the substantive due process
claim for a special use permit, that they possessed a legitimate
claim of entitlement, and that the government action in denying
the permit was arbitrary and irrational, with no reasonable basis.
Triomphe Investors v. City of Northwood, 49 F. 3d. 198, (6th Cir.
1995). The claim can survive only if the alleged purpose behind
the state action has no conceivable rational relationship to the
exercise of the state’s traditional police power through zoning.
Sylvia Development Corp. v. Calvert County, Maryland, 48 F. 3d.
25
810, 828, (4th Cir. 1995), quoting Village of Belle Terre y.
Boraas, 416 U.S. 1, 94 S. Ct. 1536, 39 L. Ed. 2d. 797 (1974).
The procedures governing the grant or denial of a special use
are set forth in the City of Harper Woods’ Zoning Ordinance.
Planning Commission pursuant to procedures and general stan-
dards established in Section 10-187B, subject to the specific
with these standards, Section 7, Approval, states that “the City
Council may deny, approve or approve with conditions, requests
for special approval of a land use.” Contrary to Petitioners’
assertions that there is no discretion on the part of the City
Council in reviewing and approving a request for a special use,
City Council is given broad discretionary authority.
The required focus in assessing a constitutional violation
based on denial of substantive due process is not whether the
denial of the request for special use was supported by a prepon-
derance of substantial evidence, as might be the case in a state
due process violation claim is unfounded. Jd. Moreover, the City
Council may properly consider citizen opposition to the proposed
property use. Even negative attitudes or unsubstantiated fears
“are properly cognizable in a zoning proceeding. ” City of
Cleburne v. Cleburne Living Center Inc., 473 U.S. 432, 448, 105
S. Ct. 3249, 87 L. Ed. 2d. 313 (1985). The City Council based its
denial of Plaintiff's 1992 reapplication for a special use on
26
legitimate doubts regarding the ability of Mr. Handlos to com-
plete the project, given the eight (8) years during which it had
been before the City Council. The City Council also considered
the tax arrearages, the failure of the plaintiff to propose any
solution to the sanitary sewer issue, and the fact that Mr. Handlos
was the only construction worker who had ever been seen working
on the project during the time the 1991 special use permit was in
effect.
Petitioners’ assertion that partisan, political reasons unre-
lated to the merits of the application were responsible for the
City’s decision, thus establishing a potential substantive due
process violation, are completely and utterly unsupported in the
record.
The facts show that City Councilman McNally, about whom
Petitioners complain, was a vocal opponent of Petitioners’ 1985
special use request, which was denied by the City Council.
Mr. McNally was, however, a private citizen at this time, uncon-
nected in any way to the City government. As such, he had a right
to voice his opposition to the hotel project as he saw fit. Cleburne,
473 US. 432, 448. Even if such citizen opposition had influenced
the City’s decision to deny the special use permit in 1985, it would
not have given rise to a substantive due process violation. “Zoning
is inescapably a political function. Indeed, it is the very essence of
elected zoning officials’ responsibility to mediate between devei-
opers, residents, commercial interests, and those who oppose and
support growth and development in the community.” Sylvia
Development Corp., 48 F. 3d. at 828. Moreover, the events of
which Petitioners complain took place in 1985, six (6) years prior
to the time City Council approved Petitioners’ request. Events
which took place six (6) years prior to the acts complained of,
and are based on the behavior of private citizens simply do not
state a claim for substantive due process violations on the part of
the City. It was Mr. Handlos who failed to comply with the
reasonable conditions imposed by City Council in granting the
special use permit in May 1991. During the year in which he was
given to commence construction of the hotel project (two times
the length specified by the City Ordinance) he took no steps to
27
comply with the requirement that he submit a plan for the
discharge for sanitary sewer that met with the approval of the City
Engineer and did not adversely affect the sanitary sewer system.
During the course of that year, no plans were submitted to the
City Engineer regarding the sewer discharge. Mr. Handlos ten-
dered no bond to the City during the course of the year, as
required as a condition to the special use, attempting only to
tender a five (5%) percent bond for the estimated cost of the
foundation improvements, rather than a five (5%) percent bond
for the cost of the project improvements days before the special
use permit expired.
Although, as Petitioners assert, the re-application for a
special use permit filed by Mr. Handlos in October 1992, was
essentially the same proposal which had been presented to the
City Council the prior year, the Council’s decision to deny the
special use permit was clearly rational given the circumstances of
the case and the City’s prior dealings with Mr. Handlos. In
denying the request, City Council noted that taxes on the Prop-
erty continued to be in arrears, that during the prior year,
Mr. Handlos had submitted no plans to the City Engineering
Department regarding the sewer discharge problem, that
Mr. Handlos had failed to tender the five (5%) percent improve-
ment bond required as a condition, and that Mr. Handlos was the
only construction worker to have worked on the project. Taking
into consideration these facts, it was a rational decision on the
part of the Council to conclude that Mr. Handlos was unable to
complete the project and that to allow him to continue could very
well result in the City being left with partially completed “im-
provements” which would have to be finished at taxpayer ex-
pense. Although the summary judgment standard requires a court
to resolve conflicting inferences from circumstantial evidence in
favor of the non-moving party, it does not require the court to
“. ++ ignore or distort the plain meaning of words or conveniently
to read them out of context.” Sylvia Development Corp., 48 F. 3d.
at 822 quoting Ford Motor Co. v. McDavid, 259 F. 2d. 261, 266
(4th Cir. 1958) cert denied 358 U.S. 908, 79 S. Ct. 234, 3 L. Ed.
2d. 229 (1958).
28
Petitioners’ attempts to cast the comments made in 1985 by
Mr. McNally and other citizens opposing the development of the
hotel project on Petitioners’ Property as improper, are a gross
distortion of the facts, in an attempt to imply that political or
racial animus was involved in the City’s decision, even though the
record is completely devoid of any such inferences.°
Petitioners contend that the “only possible legal basis” for
denying the request for extension of the special use permit and the
re-application was the existence of new ordinances, standards or
regulations. (Petition at 23). This is not only factually inaccurate,
but also misconstrues the protection afforded by the concept of
substantive due process, which requires a showing that the City’s
action had no rational basis, and was egregious, outrageous, and
irrational. Amsden v. Moran, 904 F. 2d. 748, 754 (ist Cir. 1990),
cert denied, 498 U.S. 1041, 111 S. Ct. 713, 112 L. Ed. 2d. 702
(1991).
Petitioners cite Walz v. Town of Smithtown, supra, where
evidence showed that the local ordinance allowed officials no
discretion regarding whether to grant a permit. The Council had
authority to review the request to determine if it met the stan-
dards set forth in the Ordinance, and then to approve, deny or
approve the request with conditions. Moreover, Petitioners do not
allege that the Council’s denial of the extension was merely an
extortionary attempt to gain concessions from Petitioners.
Petitioners cite DeBlasio v. Zoning Board of Adjustment for
the Twp. of West Amwell, supra where evidence indicated per-
sonal financial gain by a council member motivated denial of the
permit. The record in this case shows no evidence whatsoever of
personal animosity or partisan political reasons as the basis for the
* Note that allegations raising the issue of racial or political animus were
first raised by Petitioners in responding to Defendant’s Motion to Dismiss in the
District Court. The issue was never mentioned in either the Complaint or First
Amended Complaint filed by Petitioners with the U.S. District Court. Moreover,
these allegations refer to the 1985 denial of Petitioners’ special use request, not
the 1991 grant of the request. In light of the substantial problems with the earlier
attempt to develop the Property there was a reasonable basis for denying the re-
application request in 1992. Triomphe, 49 F.3d. at 202.
29
City’s denial of the re-application, in spite of the fact that
Petitioners took approximately twenty (20) depositions during
discovery.
Petitioners cite Scott v. Greenville County, supra where
evidence supported plaintiff's contention that denial of the devel-
oper’s request was based on racial animus. The record in this case
is completely devoid of any evidence that the City’s action in
denying the re-application was motivated by racially discrimina-
tory intent.
Petitioners cite Bello v. Walker, supra where evidence indi-
cated defendants denied a permit for personal and _ political
reasons. There is no evidence in the record in this case to show
that the 1992 denial of Petitioners’ special use was motivated by
personal or political reasons.
There is no evidence in the record to support any inference
that the City acted in denying Petitioners’ re-application for a
special use for anything other than the rational reasons set forth in
the Council’s decision. Petitioners ignore the fact that a special
use permit was issued in May 1991, and that Mr. Handlos was
unable to commence construction during the one (1) year period
prior to the expiration of the permit, and failed to comply with
other conditions attached to the permit. Given the development
history of this project, and the inability of Mr. Handlos to proceed
with development, the City was fully justified in denying the re-
application request.
This case provided no “genuine” issues of material fact.
Petitioners offered only “legal conclusions” couched as “factual
assertions” and unsupported inferences, based on language taken
out of context. The evidence offered by the City in support of its
actions was persuasive and essentially uncontroverted. S
judgment was appropriate under the standards set forth by this
Court, and Petitioners’ have not — and cannot — offer any valid
reasons for review of the decision of the Sixth Circuit Court of
Appeals.
30
CONCLUSION
Upon review of the facts and circumstances surrounding this
case, this Court should deny the Petition of Woodpointe Inn and
Thomas and Lucille Handlos, seeking review of the dismissal of
their federal claims because it is clear that the decision was
properly made and this case otherwise fails to warrant review by
this Court
Dated: June 26, 1995
Respectfully submitted,
O’CONNOR, DEGRAZIA & TAMM, P.C.
By: JULIE MCCANN-O’CONNOR
(Counsel of Record)
JAMES E. TAMM
CHRISTOPHER T. KOCH
4111 Andover Road - Suite 300 E
Bloomfield Hills, MI 48302
(810) 433-2000
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.