Opposition Brief — Paragon Properties Co. v. City of Novi

' ee

{

No. 96-1055

In The

Supreme Court of the United States

—

ae

October Term, 1966

PARAGON PROPERTIES COMPANY,

Petitioner,

VS.

CITY OF NOVI,

Respondent.

On Petition fora Writ of Certiorari to the Supreme

Court of the State of Michigan

RESPONDENT?’S BRIEF IN OPPOSITION

GAIL P. MASSAD

Counsel of Record

CUMMINGS, McCLOREY, DAVIS

& ACHO, P.C.

Attorneys for Respondent

33960 Schoolcraft

Livonia, Michigan 48150-1392

(313) 261-2400

(800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

70479 putz

A

ppellate

ervices, inc

i

QUESTION PRESENTED

F Whether the Petitioner’s taking claim, under any theory,

was ripe for judicial review when Petitioner failed to obtain a

f final decision as to the use of its property from the Respondent?

j

.

a

TABLE OF CONTENTS

Page

Cen FUNNE .k.k sh cdeo bis i

wee TE CAO oon visa vi eean cee ii

PT iv

CUS TY oon 5 nk kcas sean ueeeeeeeeee l

rrr l

| eee) en l

ee fh re ee 3

A. Paragon Files Suit In Circuit Court .......... 3

B. Circuit Court Denies The City’s Motion For Partial

SUMMNTY SURGE 6 oo vcccccsccneatenanas 5

C. Circuit Court Issues Judgment Declaring Zoning

Ordinance As Applied To Paragon’s Property Is

An Unconstitutional Taking ................ 6

D. Michigan Court Of Appeals Reverses Judgment

On Rigenens COCGES oik 6sccccsuvevnanees 7

E. Michigan Supreme Court Affirms The Michigan

Court Of Appeals On Ripeness Grounds ..... 9

Reasons for Denying the Writ .......cccsccccccces 10

ul

Contents

Page

I. The Williamson County Ripeness Doctrine Does

Not Need Clarification As There Is No Conflict

Between The Decision Of The Michigan Supreme

Court And Decisions Of The Sixth And Eleventh

Circuit Court Of Appeals. .................. 12

A. The Michigan Supreme Court Did Not

Expand The Williamson County Ripeness

Doctrine Contrary To The Decisions Of The

Sixth And Eleventh Circuit Court Of

EMS Wale eed dW anu eGssse css Xe 12

B. The Michigan Supreme Court Decision In

This Case Does Not Deprive Paragon Of A

Right To Temporary Taking Damages,

Contrary To The Fifth Amendment As

Applied By This Court In First English

Evangelical Lutheran Church. ......... 18

II. The Writ of Certiorari Should Not Be Granted In

This Case As The Ohio Opinion Relied Upon By

The Petitioner Is Distinguishable From The Instant

Matter; Therefore There Is No Conflict Among

State Courts Regarding The Williamson Finality

ea a 20

a 21

iv

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Eide v. Sarasota County, 908 F.2d 716 (11th Cir. 1990)

rebar Pacer eee eae be tes rb ke eee a eee ne 16, 17

Electro-Tech v. Campbell Co., 433 Mich. 57, 445 N.W.

ae GE Pee back eRe ha bed oes 5, 9, 10

First English Evangelical Lutheran Church of Glendale

v. Los Angeles County, 482 U.S. 304, 107 S. Ct. 2378,

SO b. Se. BO 2 CUE) ha ee eadesccuNesnasenes 18, 19

Greenbriar Ltd. v. City of Alabaster, 881 F.2d 1570 (11th

Oe er ers cer ery reds) Pere 16

Harrington v. County of Sonoma, 834 F.2d 1488 (9th

Cir. 1987), modified, 857 F.2d 567 (9th Cir. 1988)

cede Chee Ea Coden bee healer eer atsaee ere 15

Karches v. City of Cincinnati, 38 Ohio St. 3d 12, 526

Pa Oe Be RED ow Caevudiadasweeteesteass 20, 21

Nasierowski Bros. Inv. Co. v. City of Sterling Heights,

PS F208 Soe CO CAR. TGGE) own ccisecccsseeevc 14, 15, 16

Paragon Properties Co. v. City of Novi, 206 Mich. App.

FR, SEO ce Ak Oe CEFPS) ceed tb ecasaeversiess 1,9

Paragon Properties Co. v. City of Novi, 450 Mich. 865,

pe A a 2 | rere rer er rire 9

Contents

Page

Paragon Properties Co. v. City of Novi, 452 Mich. 568,

Pa Tt. OO The CI iNet ]

Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th Cir.

SPOS? Ss saddiastecsventsasvaeeriae 14, 15, 16

Suitum v. Tahoe Regional Planning Agency, 80 F.3d 359

(9th Cir. 1996), cert. granted, 117 S. Ct. 293 (1996)

See cbudeak eeu seer r en ace Ceneeaeeaeekeeur oes Oe

Taylor Invst. Ltd. v. Upper Darby Twp., 983 F.2d 1285

(3rd Cir. 1993), cert. denied, 114 S. Ct. 304, 126 L.

Ae ee RIE 6 ob esd kacates deeiaeeeas: 17, 18

Williamson County Regional Planning Comm. vy.

Hamilton Bank of Johnson City, 473 U.S. 172, 105

S. Ct. 3108, 878 L. Ed. 2d 126 (1985) ..........

‘Accra ekaanen 5, 10, 11, 12, 14, 16, 18, 19, 20, 21, 22

United States Constitution Cited:

Fare PO << ohn on eGo awh eee b eee 14

FU PII i's c oss cea 64500 eueaveae caus 4, 17, 18, 19

Fourteenth Amendment ..........ccccccccccccces 4,10, 17

PETE $6 ko 4 4A AAS Ake oh eee eee 10

Rule Cited:

iss BASU bb 0 do 0b ner ee aad dee Exes 5

vi

Contents

Page

Other Authority Cited:

City of Novi Ordinance § 3104..................

l

OPINIONS BELOW

The Michigan Supreme Court decision in this matter is

reported at Paragon Properties Co. v. Ciry of Novi, 452 Mich.

568, 550 N.W. 2d 772 (1996). The Order Denying Rehearing in

the Michigan Supreme Court is found at 453 Mich. 1215, 554

N.W. 2d 900 (1996). The Michigan Court of Appeals’ decision

is reported at 206 Mich. App. 74, 520 N.W. 2d 344 (1994).

STATEMENT OF JURISDICTION

Respondent agrees with the Statement of Jurisdiction set

forth in Petitioner’s Petition for Writ of Certiorari.

ORDINANCE INVOLVED

In addition to the constitutional and statutory provisions

cited by the Petitioner, Respondent asserts the City of Novi

Zoning Ordinance § 3104 is also involved in this case which

provides in pertinent part:

1. The Zoning Board of Appeals shall not

have the power to alter or change the zoning

district classification of any property, nor to

make any change in the terms of this

Ordinance but shall have the power to

authorize a use in a zoning district in which

it is not otherwise permitted, provided it is

clearly shown that the land cannot be used

for a zoned use, and shall be further

empowered to act on those matters where this

Ordinance provides for administrative

review, interpretation, exception or special

approval permit and to authorize a variance

as defined in this Section and laws of the

State of Michigan. Said powers include:

2

b. Variance. To authorize, upon an

appeal, a variance from the strict

application of the provisions of this

Ordinance whereby reason of

exceptional narrowness, shallowness,

shape or area of a specific piece of

property at the time of enactment of

this Ordinance or by reason of

exceptional topographical conditions

or other extraordinary or exceptional

conditions of such property, the strict

application of the regulations enacted

would result in peculiar or exceptional

practical difficulties to or exceptional

undue hardship upon the owner of

such property provided such relief

may be granted without substantial

detriment to the public good and

without substantially impairing the

intent and purpose of this

Ordinance. ...

2. In consideration of all appeals and all

proposed variations of this Ordinance, the

Board shall before making any variations

from the Ordinance in a specific case, first

determine that the proposed variation will not

impair an adequate supply of light and air to

adjacent property, or unreasonably increase

the congestion in public streets, or increase

the danger of fire or endanger the public

safety, or unreasonably diminish or impair

established property values within the

surrounding area, or in any other respect

impair the public health, safety, comfort,

3

morals or welfare of the inhabitants of

the City of Novi....

STATEMENT OF THE CASE

A. Paragon Files Suit In Circuit Court

Petitioner, Paragon Properties Company (Paragon), filed a

Complaint in the Oakland County Circuit Court, State of

Michigan, on June 5, 1989 against Respondent, the City of Novi

(City), alleging a taking of its property in violation of the United

States and Michigan Constitutions seeking equitable relief and

money damages. (Petitioner's App. D-4, D-7). On May 21,

1984, Paragon requested the City to rezone property owned by

the Petitioner. Paragon owns approximately 75 acres located

on the westerly boundary of the City at the intersection of Napier

and Twelve Mile Roads. The current zoning at that time was

R-1 and R-A wherein among other uses, the property was

designated for single family residential use. Petitioner requested

a rezoning to M-H so it could develop a mobile home park on

Said property.

To support its talking claim Paragon alleged the property

had no economic potential for development under the current

zoning. Paragon purchased the property in 1980, knowing the

property was zoned for single family residential use, but hoped

to obtain a rezoning of the property. In August, 1984 the City

Council denied Paragon’s rezoning request. As a result, Paragon

filed an action in the Oakland County Circuit Court, State of

Michigan against the City on January 11, 1985, case no. 85-

288614 AZ. That case was ultimately dismissed without

prejudice on February 9, 1989, and was refiled by Paragon on

June 5, 1989. At page 3 of Paragon’s Petition, Paragon states

the suit was dismissed because the parties were engaged in

further discussions to rezone the property. The availability of a

4

use variance was never discussed between representatives of

Paragon and the City. While that is true, the City was under no

affirmative obligation to suggest such a possibility.

Essentially, Paragon claimed the property, in a rural part of

Novi, could not be economically developed, as zoned, because

it was not served by a public sewer system; and allegedly the

soil did not perk to allow the installation of septic fields to

develop the property as zoned. Paragon alleged that all

reasonable use of the land had been precluded. Paragon alleged

that “As applied to the Property of Plaintiff, the zoning

ordinance of the City of Novi is unreasonable, confiscatory,

discriminatory, and it is unconstitutional and has deprived

Plaintiff of its property in violation of the Due Process Clause

of the Constitution of the State of Michigan and the United States

of America”. (Petitioner’s App. D-7).

On June 21, 1989, an Answer and Affirmative Defenses were

filed by the City. In the Affirmative Defenses the City asserted

Paragon had tailed to state a claim upon which relief could be

granted for a deprivation of Paragon’s constitutional rights. The

City asserted that Paragon’s taking claim under the Fifth and

Fourteenth Amendments of the United States Constitution failed

to state a claim when the State provided an adequate remedy at

law. Further, the City asserted Paragon had received substantive

due process as well as procedural due process with respect to

its rezoning request. The City asserted no taking had occurred

because the actions of the City were proper and constitutional.

Lastly, the City reserved the right to raise any other affirmative

defenses which became known to it throughout the course of

discovery of these proceedings. Thereafter, the parties engaged

in various discovery proceedings.

5

B. Circuit Court Denies The City’s Motion For Partial

Summary Judgment

On February 19, 1990, the City filed a Motion for Partial

Summary Disposition asserting Paragon’s taking claims, under

the United States and Michigan Constitutions were not ripe for

judicial review because a final decision regarding its use of the

property had not been obtained from the City. The basis for said

Motion, among other things, was, at the time, a recently released

decision by the Michigan Supreme Court, Electro-Tech v.

Campbell Co., 433 Mich. 57, 445 N.W. 2d 61 (1989); embracing

Williamson County Regional Planning Comm. v. Hamilton Bank

of Johnson City, 473 U.S. 172, 105 S. Ct. 3108, 878 L. Ed. 2d

126 (1985).

In the Answer to the City’s Moticn filed by Paragon, Paragon

claimed the City was barred pursuant to M.C.R. 2.111(F)(3), to

assert the defense raised in the City’s Motion. Paragon asserted

the City’s argument was an affirmative defense which had to be

stated in a party’s first responsive pleading. Paragon asserted

the denial of its application for rezoning constituted a final

decision from which Paragon was entitled to seek damages.

On March 28, 1990, the parties appeared before the Oakland

County Circuit Court to present argument on the City’s Motion.

At the conclusion of said hearing, the Court agreed with Paragon

finding the defense raised in the City’s Motion was untimely;

and, Paragon had received a final decision from the City. Further,

Paragon was not required to apply for a variance with the City’s

zoning board of appeals. An Order Denying Defendant’s Motion

for Partial Summary Disposition was entered by the Oakland

County Circuit Court on April 6, 1990. As a result, the City

filed an Application for Leave to Appeal with the Michigan Court

of Appeals. The Court of Appeals denied the City’s Application

for Leave to Appeal on May 25, 1990.

6

While the Application was pending, the City filed a Motion

for Leave to File Amended Affirmative Defenses in the Circuit

Court. On March 29, 1990, Paragon opposed the Motion. Oral

argument on said Motion was held on June 20, 1990. At the

conclusion, the Circuit Court granted the City the right to file

amended affirmative defenses. An Order Granting Leave to the

City to Amend its Affirmative Defenses was entered by the

Oakland County Circuit Court on July 3, 1990.

C. Circuit Court Issues Judgment Declaring Zoning

Ordinance As Applied To Paragon’s Property Is An

Unconstitutional Taking

On July 5, 1990, the parties appeared in the Oakland County

Circuit Court for the purpose of a bench trial that lasted seven

days. At the conclusion of said trial, the court set forth its opinion

on July 17, 1990.

The court found Paragon had satisfied the burden of

establishing the property would not perk; and therefore would

not support any of the City’s alternative suggestions, or proposals

regarding the development of said property as zoned. The court

held Paragon had been deprived of all use of the property. The

court further stated the property had no value, other than its

original purchase price, $2,000 per acre, as presently zoned.

Therefore, the zoning was confiscatory. The court declared the

zoning ordinance, as it applied to the land in question, to be

unconstitutional, contrary to the City’s master plan; and enjoined

the City from enforcing the existing zoning classification to the

subject property.

The court maintained continuing jurisdiction to allow

Paragon to proceed with the development of its property as a

mobile home park. It was further ordered said development could

not conflict with the state wetlands or woodlands statutes. As

1 NR ai elt NNN Atha Net

7

to damages, the court found the City had taken 35 acres of the

75 acres in question through its zoning.

On August 30, 1990, a Judgment was entered by the Oakland

County Circuit Court, for the State of Michigan conforming with

the Court’s ruling on July 17, 1990. In said Judgment, the amount

of damages totaled $198,930. Further, the City was ordered to

pay Paragon’s actual and reasonable attorney fees to be

submitted to the court at a later date.

The City filed a timely Motion for Judgment

Notwithstanding the Verdict/New Trial raising various arguments

including the finality/ripeness doctrine. Paragon opposed the

Motion. The court denied the City’s Motion for Judgment

Notwithstanding the Verdict/New Trial by an Order dated

December 17, 1990. The City filed an appeal in the Michigan

Court of Appeals and the Petitioner cross-appealed on several

grounds.

D. Michigan Court Of Appeals Reverses Judgment On

Ripeness Grounds

On April 7, 1994, the Michigan Court of Appeals issued its

Opinion reversing the Oakland County Circuit Court Judgment

entered against the City on August 30, 1990. In so doing the

Court of Appeals stated:

The dispositive issue is whether Novi’s denial

of Paragon’s rezoning application constituted

a final determination from which Paragon

could seek redress in the circuit court. Of

course, Paragon contends that Novi’s denial

was a final determination; Novi argues that

Paragon was obliged to seek a zoning

variance from the zoning board of appeals

8

and to bring a state inverse condemnation

action before its constitutional claim was

ripe. We agree with Novi.

Under Michigan law, the doctrine of finality

requires a property owner to obtain a final

decision from the governmental entity

alleged to have unconstitutionally taken the

property and also attempt to obtain just

compensation through inverse condemnation.

The purpose of the finality requirement is to

ensure that there actually was a taking.

Electro-Tech, Inc. v. H. F. Campbell Co., 433

Mich. 57, 61; 445 N.W.2d 61 (1989), cert.

den. 493 U.S. 1021 (1990); Lake Angelo

Associates v. White Lake Twp., 198 Mich.

App. 65; 498 N.W. 2d 1 (1993).

We also reject Paragon’s contention that Novi

waived the defense of finality because it

failed to raise it as an affirmative defense in

its first responsive pleading. Finality goes to

subject matter jurisdiction and thus need not

be listed as an affirmative defense. Pearson

v Grand Blanc, 961 F.2d 1211, 1214-1215

(CA 6, 1992); Campbell v St. John Hosp.,

434 Mich. 608, 616; 455 N.W.2d 695 (1990);

Grand Blanc Landfill, Inc. v. Swanson

Environmental, Inc., 200 Mich. App. 642,

646; 505 N.W.2d 46 (1993), lv. pdg.

Finally, Paragon attempts to overcome the

finality requirement by arguing that it would

have been futile, as well as a measure taken

in bad faith, to have sought a variance from

hk Nin tN ARAN 8 DN 0 Phat a tthe

9

the Zoning Board of Appeals. We disagree

in light of the exceptional hardship exception

that affords the Zoning Board of Appeals the

opportunity to grant the variance regardless

of Paragon’s ability to otherwise qualify.

Because we reverse the judgment on finality

grounds, we do not reach or consider the

other issues raised in this case by Novi in its

direct appeal or Paragon in its cross-appeal.

(Emphasis added). Paragon Properties Co. v. City of Novi, 206

Mich. App. 74, 520 N.W. 2d 344 (1994).

Petitioner filed a Motion for Rehearing on April 28, 1994.

The Michigan Court of Appeals denied the Motion on June 10,

1994.

E. Michigan Supreme Court Affirms The Michigan Court

Of Appeals On Ripeness Grounds

Paragon filed an Application for Leave to Appeal with the

Michigan Supreme Court, which was originally denied.

However, on September 20, 1995, the Michigan Supreme Court

granted Paragon’s subsequent Motion for Reconsideration and

granted leave to appeal at Paragon Properties Co. v. City of Novi,

450 Mich. 865, 550 N.W. 2d 772 (1995).

In the appeal before the Michigan Supreme Court, Paragon

raised many arguments all of which essentially asserted the

Michigan Court of Appeals erroneously applied the Michigan

Supreme Court decision in Electro-Tech, supra. Paragon argued

the City’s zoning board of appeals had no authority to grant

Paragon a use variance. Paragon argued the City Council had

exclusive decision-making power relative to zoning matters, and

10

to allow the Zoning Board of Appeals to grant a use variance

would in effect be a usurpation of the City Council’s legislative

function. Further, Paragon argued seeking a use variance would

be futile when it would not qualify for one. Lastly, Paragon

argued the finality/ripeness doctrine only applied to a just

compensation taking claim. Paragon asserted the finality/

ripeness doctrine did not apply to taking claims based on an as

applied substantive due process challenge under the Fourteenth

Amendment.

Paragon argues at page 10 of its Petition the Michigan

Supreme Court “opined that, although Paragon secured an

unconditional denial of its rezoning request . . . Paragon should

have sought a use variance from the Zoning Board of Appeals.”

The Michigan Supreme Court never stated Paragon had received

an unconditional denial of its rezoning request. Instead, the

Supreme Court stated “[W]hile the city council’s denial of

rezoning was certainly a decision, it is not a final decision under

Electro-Tech because had Paragon petitioned for a land use

variance, Paragon might have been eligible for alternative relief

from the provisions of the Ordinance.” (Petitioner’s App., A-

11).

REASONS FOR DENYING THE WRIT

As the Petitioner correctly states, an indispensable element

of subject matter jurisdiction in federal court is the existence of

a case or controversy. U.S. Const. art. III. Further, to effectuate

a limitation on the judiciary over local land use regulations, in

which a property owner claims a regulatory taking, this Court

has adopted the finality/ripeness doctrine in Williamson County,

supra. The Williamson finality doctrine was adopted by the

Michigan Supreme Court in Eletro-Tech, supra. The Petitioner

fails to remember that the courts, whether federal or state, can

not invade the province of local government in its land use

11

regulations unless the regulations are clearly prohibited by law

or constitution. Hence, the finality/ripeness doctrine recognizes

that both federal and state courts must guard against violating

the separation of powers doctrine and invade the province of

local governments in regulating land usage within their

boundaries. Zoning ordinances, combined with other

mechanisms such as land use variances, enable local

governments to more adeptly manage land within their

jurisdictions. The zoning of land is a reasonable exercise of

governmental police power and must be accomplished at the

local level. The finality/ripeness doctrine allows this end to be

accomplished without unnecessary interference by the judiciary.

The Petitioner asserts lower federal courts have struggled

to apply the finality/ripeness doctrine in a consistent fashion.

Further, the Petitioner asserts there has been confusion over the

purpose and scope of the doctrine in the federal courts. Finally,

Petitioner asserts this Court has recently granted a writ of

certiorari in Suitum v. Tahoe Regional Planning Agency, 80 F.3d

359 (9th Cir. 1996), cert. granted, 117 S. Ct. 293 (1996).

Although this Court has granted certiorari in Suitum, supra,

the granting of certiorari does not mean this Court did so because

it recognizes the need to clarify the manner in which Williamson

County is applied by federal courts. The Suitum case has been

involved in extensive litigation over a number of years involving

unique facts and issues. Facts and issues not present in the

instant matter. Specifically, the question of whether a property

owner must transfer their “development rights” in a unique land

use program, before an as applied taking claim is ripe for judicial

review. Those issues are not present in this case. Further, there

has been no confusion or conflict among the courts as to the

purpose and/or scope of the doctrine. There is no need to clarify

the manner in which Williamson County is applied by “federal

courts” as the action involved in this case concerns a decision

12

of the Michigan Supreme Court, a decision which is consistent

with this Court’s decision in Williamson County. There is

absolutely no conflict or confusion over the application of the

Williamson County finality/ripeness doctrine, by lower federal

courts, or the State of Michigan, which should induce this Court

to grant certiorari in the instant matter.

I.

THE WILLIAMSON COUNTY RIPENESS DOCTRINE

DOES NOT NEED CLARIFICATION AS THERE IS NO

CONFLICT BETWEEN THE DECISION OF THE

MICHIGAN SUPREME COURT AND DECISIONS OF

THE SIXTH AND ELEVENTH CIRCUIT COURT OF

APPEALS.

A. The Michigan Supreme Court Did Not Expand The

Williamson County Ripeness Doctrine Contrary To The

Decisions Of The Sixth And Eleventh Circuit Court Of

Appeals.

At page 13 of Paragon’s Petition, Paragon asserts the

Michigan Supreme Court dismissed all of its constitutional

claims, “including Paragon’s non-taking substantive due process

claim under the Fourteenth Amendment”. To support this

argument Paragon asserts the Williamson County decision

rendered by this Court does not apply to non-taking substantive

due process claims. Paragon’s analysis of this Court’s decision

in Williamson is erroneous. In Williamson, this Court specifically

stated:

We turn to an analysis of respondent’s claim

under the due process theory that petitioners

espouse. As noted, under that theory

government regulation does not effect a

13

taking for which the Fifth Amendment

requires just compensation; instead,

regulation that goes so far that it has the same

affect as a taking by eminent domain is an

invalid exercise of the police power, violative

of the Due Process Clause of the Fourteenth

Amendment.

We need not pass upon the merits of

petitioners’ arguments, for even if viewed as

a question of due process, respondent's claim

is premature. Viewing a regulation that “goes

too far” as an invalid exercise of the police

power, rather than as a “taking” for which

just compensation must be paid, does not

resolve the difficult problem of how to define

“too far,” that is, how to distinguish the point

at which regulation becomes so onerous that

it has the same effect as an appropriation of

the property through eminent domain or

physical possession. As we have noted,

resolution of that question depends in

significant part, upon an analysis of the effect

the Commission’s application of the zoning

ordinance and subdivision regulations had on

the value of respondent’s property and

investment-backed profit expectations. That

effect cannot be measured until a final

decision is made as to how the regulations

will be applied to respondent’s property. No

such decision had been made at the time

respondent filed its §1983 action, because

respondent failed to apply for variances from

the regulations.

14

In sum, respondent’s claim is premature,

whether it is analyzed as a deprivation of

property without due process under the

Fourteenth Amendment, or as a taking under

the Just Compensation Clause of the Fifth

Amendment.

(Footnotes omitted). (Emphasis added). Williamson, 473 U.S.

at 197,199, 200; 105 S. Ct. at 3122, 3123, 3124.

Thus, it is clear the finality/ripeness doctrine applies to

taking claims under a just compensation and an as applied

substantive due process claim.

At pages 15-16 of the Petition filed by Paragon, Paragon

asserts the Sixth Circuit Court of Appeals held the very existence

of an allegedly unlawful zoning action without more makes a

substantive due process claim ripe for federal adjudication citing

Pearson vy. City of Grand Blanc, 961 F.2d 1211, 1215 (6th Cir.

1992). Paragon’s analysis of the decision set forth in Pearson,

supra is erroneous. The Pearson panel did not state that the very

existence of an allegedly unlawful zoning ordinance, without

more makes a substantive due process claim ripe for review.

Instead, the Pearson panel noted that a prior panel of that court

had recently held the existence of an allegediy unlawful zoning

action, without more, makes a substantive due process claim

ripe for federal adjudication; citing Nasierowski Bros. Inv. Co.

v. City of Sterling Heights, 949 F.2d 890, 894 (6th Cir. 1991).

However, Nasieroswki was a procedural due process case.

In Pearson the court noted there are six type of federal

zoning claims. Pearson listed those claims as: (1) just

compensation taking claims; (2) due process taking claims; (3)

arbitrary and capricious substantive due process claims; (4) equal

protection; (5) procedural due process; and (6) First Amendment.

‘ a

wen dn Rr me

+ rare retare!

15

While it is true the Sixth Circuit Court of Appeals found

Pearson’s as applied substantive due process claim to be ripe

for judicial review, the court did so because the plaintiff in

Pearson had met the strict ripeness standard enunciated by the

Ninth Circuit Court of Appeals. The Pearson plaintiff had

submitted an application for an alternative use. Pearson stated

the Ninth Circuit has a strict ripeness requirement in non-taking

zoning cases; which requires the landowner to not only submit

one meaningful application, but also seek at least one variance,

if that application is denied, before coming to federal court.

Harrington v. County of Sonoma, 834 F.2d 1488, 1494-95 (9th

Cir. 1987), modified, 857 F.2d 567, 569 (9th Cir. 1988). In the

instant matter, Paragon merely requested a rezoning. It did not

submit any site plan or seek a variance and was therefore

premature in filing an as applied substantive due process

challenge against the City. Finally, the Sixth Circuit said it was

following the precedent set forth in Nasierowski, supra.

In Nasierowski, supra; the plaintiffs made a procedural due

process challenge when the defendant city gave a conditional

approval of a site plan requiring the plaintiff to improve public

roads accessing the plaintiffs’ proposed development. The

Nasierowski yviaintiffs also applied for a variance from the

requirements imposed on the site plan which was denied. While

the plaintiffs in Nasierowski were engaged in seeking a variance,

the city council adopted a new city-wide master zoning plan

which rezoned the plaintiffs’ property placing greater restrictions

on the plaintiffs’ proposed development. The plaintiffs were at

the point of obtaining final site plan approval, when the proposed

new master plan was modified and a new zoning classification

was applied to the plaintiffs’ property, which would prohibit

the plaintiffs from developing the property as planned. Without

applying to the city’s board of zoning appeals for a variance

from the newly enacted zoning classification, Nasierowski

commenced suit in federal district court. On appeal to the Sixth

16

Circuit, Nasierowski argued he was denied procedural due

process when the city’s master zoning plan was amended without

providing him with notice and opportunity to be heard regarding

the change.

In Nasierowski, the Sixth Circuit held the Williamson finality

doctrine does not apply to procedural due process claims,

because the injuries to the property owner accrue and attach

immediately when the property owner has been denied notice

and an opportunity to be heard; i.e., procedural due process.

Thus, the situation and claims presented in Nasierowski are

Clearly distinguishable from the instant matter. Further, the

Pearson panel was mistaken when it found that Nasierowski

stood for the proposition that the very existence of an allegedly

unlawful zoning action, without more, makes a substantive due

process claim ripe for adjudication. Nasierowski does not state

that. :

Paragon relies on the decision in Eide v. Sarasota County,

908 F.2d 716 (11th Cir. 1990); claiming the Eleventh Circuit

Court of Appeals has held the Williamson finality doctrine does

not apply to an as-applied substantive due process challenges.

Further, Paragon asserts there is a conflict between the decision

in this case and the Eide case.

A careful review of the Eide decision reveals the Eleventh

Circuit Court failed to follow its own precedent set in Greenbriar

Ltd. v. City of Alabaster, 881 F.2d 1570 (11th Cir. 1989). Further,

the opinion itself is not applicable here when Paragon has never

alleged a “non-taking” substantive due process claim. A careful

review of Paragon’s Complaint and the appellate briefs filed by

the parties reveals Paragon has consistently claimed a taking of

its property occurred entitling it to money damages when the

City denied Paragon’s rezoning request.

cet

ot ai nga sie

oe a en Oe

17

Utilizing the Eide reasoning in this case the remedy sought

by Paragon evidences Paragon has consistently argued a taking

of its property under the Fifth and Fourteenth Amendments

seeking compensation; and, the ability to develop its property

as a mobile home park. The property has never been developed

becamse Paragon has been unable to obtain the necessary permits

from the State of Michigan, even though the City had been

enjoined from enforcing its ordinance until the Michigan

Supreme Court denied Paragon’s Motion for Reconsideration,

October 7, 1996.

An as-applied substantive due process challenge claiming

the governmental entity acted in an arbitrary and capricious

manner essentially asserts there was no basis for denying the

Petitioner’s rezoning request. Yet, the reasons for the denial of

the Petitioner’s rezoning request were never explored or

developed at the trial court level. Without exploring those reasons

iow could Paragon argue the decision not to rezone the property

was arbitrary and capricious. Paragon essentially argued the

decision to deny its rezoning request precluded Paragon from

using its property. In other words, Paragon could not

economically develop the property as zoned. Clearly, this

allegation is a taking allegation and not merely a statement that

the City was acting arbitrarily and capriciously.

The decision of the Michigan Supreme Court in this case is

not in conflict with the decision of the Sixth Circuit Court of

Appeals in Pearson. To the extent that the Michigan Supreme

Court decision conflicts with that rendered in Eide, supra;

Respondent asserts the decision in Eide is at best very confusing

and should not be the basis for granting the Petition for Writ of

Certiorari in this case.

In Taylor Inv. Ltd. v. Upper Darby Twp., 983 F.2d 1285 (3rd

Cir. 1993), cert. denied, 114S. Ct. 304; 126 L. Ed. 2d 252 (1993),

18

the Third Circuit Court of Appeals held the Williamson finality

doctrine applies to an as-applied substantive due process

challenge to a land use regulation. In so holding, the court noted

that to prevail on a substantive due process claim a plaintiff

must have been deprived of a property interest because of

arbitrary and capricious government action. Again, Jaylor points

out that the finality requirement for such a challenge is necessary

to determine what property interest, and to what extent that

property interest, has been taken. Paragon never asserted a “non-

taking” substantive due process claim in this case.

B. The Michigan Supreme Court Decision In This Case Does

Not Deprive Paragon Of A Right To Temporary Taking

Damages, Contrary To The Fifth Amendment As Applied By

This Court In First English Evangelical Lutheran Church.

In subsection A. of Paragon’s Petition it claims it made a

“non-taking” substantive due process argument that should not

be subject to the Williamson finality doctrine. Yet, at subsection

B. of its Petition it now claims the Michigan Supreme Court in

this case deprived Paragon of its right to seek temporary taking

damages contrary to the Fifth Amendment and this Court’s

holding in First English Evangelical Lutheran Church of

Glendale v. Los Angeles County, 482 U.S. 304, 107 S. Ct. 2378,

96 L. Ed. 2d 250 (1987).

Paragon argues the Michigan Supreme Court decision in

this case results in a situation where any person whose property

cannot be developed under the existing zoning must first pursue

a myriad of administrative appeals, including a variance

application to a zoning board of appeals, and then an appeal to

the Circuit Court. Further, Paragon asserts that neither the zoning

board of appeals, nor a circuit court on appeal from a decision

of the zoning board of appeals, has the authority to award

damages under the Just Compensation Clause of the Fifth

Kneis ecco ieenine ith AIR

a Ad Fain Tare oe

19

Amendment, therefore it could never seek money damages for

a temporary taking. What Paragon fails to remember is, although

it would have had the right to appeal the zoning board of appeals’

denial of a variance, by seeking a variance and having same be

denied, at least Paragon would have received a final decision as

to how its property could be used. Once that occurred its taking

claim, temporary or otherwise, would be ripe for judicial review.

Contrary to the assertions of Paragon the decision of the

Michigan Supreme Court in this case in no way prevents property

owners from seeking just compensation for temporary takings

of their property.

The decision of the Michigan Supreme Court does not

conflict with this Court’s holding in First English Evangelical

Lutheran Church of Glendale. \n First English, supra, this Court

found the plaintiff’s claim was ripe for judicial review because

the plaintiff had met the requirement that a state inverse

condemnation action be filed. The second prong of the

Williamson finality doctrine; i.e., had the plaintiff received a

final decision as to the use of its property was not at issue. In

fact, al! of the courts assumed all use of the plaintiff’s property

had been precluded by the land use regulation. In this case

there was no such assumption. Agaia, Paragon fails to remember

the basic premise behind the awarding of just compensaticn.

That is, a property owner is entitled to just compensation for a

temporary or permanent taking of all use of the property. In this

case, the use of the Petitioner’s property was never determined.

20

Il.

THE WRIT OF CERTIORARI SHOULD NOT BE

GRANTED IN THIS CASE AS THE OHIO OPINION

RELIED UPON BY THE PETITIONER IS

DISTINGUISHABLE FROM THE INSTANT MATTER;

THEREFORE THERE IS NO CONFLICT AMONG STATE

COURTS REGARDING THE WILLIAMSON FINALITY

DOCTRINE.

Paragon argues the Supreme Court of Ohio in Karches v.

City of Cincinnati, 38 Ohio St. 3d 12, 526 N.E. 2d 1350 (1988)

specifically rejected the Williamson finality doctrine on identical

facts. First and foremost it should be noted this statement is

completely untrue. The facts in Karches are completely

distinguishable from the instant matter.

First, the property owned by the plaintiffs in Karches had

been used by the plaintiffs for approximately six years, when

the city adopted a new city-wide zoning proposal which changed

the zoning classification of the plaintiffs’ properties. Three years

later, one of the plaintiffs discovered the zoning change and

explored the possibility of having his property rezoned.

However, no action or request for rezoning was taken by the

plaintiff until eight years later, which was denied. Thereafter,

the plaintiffs attempted to use their land for a permitted use

under the city’s zoning ordinance. Seventeen years after the

initial change in zoning, the plaintiffs filed suit against the city

alleging the zoning ordinance was an as applied unconstitutional

taking of their property requiring just compensation. However,

the plaintiffs dismissed the lawsuit without prejudice when the

city assured the plaintiffs their problems with the use of their

property would be settled by revisions to the zoning ordinance.

The revisions did not help the plaintiffs and a second suit was

filed against the city.

21

The Court of Appeals in Karches, supra, held the city had

not reached a final definitive position because the plaintiffs had

not, on the basis of a specific proposed use, petitioned for a

rezoning or applied for a building permit. Without a refusal by

the city to allow a specific use, the Court of Appeals for Ohio

found no definitive position as to the use of the property had

been taken by the city. The Ohio Supreme Court disagreed with

the Court of Appeals. The Ohio Supreme Court found the denial

of a specific proposed use was not necessary to find that the

city had taken a final definitive position on the use of the property

to satisfy the ripeness test. In so holding, the Supreme Court of

Ohio specifically recognized that pursuant to the state law of

Ohio the constitutionality of a zoning ordinance may be attacked

in two ways. Further, pursuant to state statute the ripeness

determination is not applicable to an action for declaratory

judgment. Finally, and most importantly, Ohio law precluded

the granting of a variance for a use contrary to the use

regulations of the applicable zoning district. A situation, that

is not present in this case under Michigan law.

Thus, a careful review of the decision in this matter in

comparison to the Ohio case clearly reveals the two are not the

same. There is no conflict requiring this Court to expend its

time and energy and grant the Petitioner’s Petition for Writ of

Certiorari in this case.

CONCLUSION

Paragon Properties Company never received a final

definitive decision regarding the use of its property from the

Respondent, the City of Novi. Pursuant to this Court’s decision

in Williamson, Paragon’s taking claim under any theory was not

ripe for judicial review. Paragon’s allegation that it asserted a

“non-taking” substantive due process claim is meritless. That

claim was never made in the courts below. Paragon never

22

developed that theory; and, the remedy Paragon sought clearly

establishes Paragon attempted to assert a taking claim against

the City of Novi.

The Michigan Supreme Court did not expand the Williamson

County finality doctrine beyond its intended scope; nor has it

deprived Michigan landowners of constitutionally protected

property rights by its decision in this case.

Finally, the granting of a Writ of Certiorari in the case of

Suitum v. Tahoe Regional Planning Agency, 80 F.3d 359 (9th

Cir. 1996), cert. granted, 117 S. Ct. 293 (1996), does not

establish this Court has “already recognized the significant need

to resolve the uncertainty and inconsistent application of

Williamson County”. The decision in this matter is consistent

with other decisions involving the issues at hand both at the

federal and state court levels.

The City of Novi respectfully prays this Court deny

Paragon’s Petition for Writ of Certiorari. Alternatively, the City

of Novi prays this Court will summarily affirm the decision of

the Michigan Supreme Court.

Respectfully submitted,

GAIL P. MASSAD

Counsel of Record

CUMMINGS, McCLOREY, DAVIS

& ACHO, P.C.

Attorneys for Respondent

33900 Schoolcraft

Livonia, Michigan 48150-1392

(313) 261-2400