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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1117

## Text

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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

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ppellate
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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?

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.
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TABLE OF CONTENTS

Page
Cen FUNNE .k.k sh cdeo bis i
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CUS TY oon 5 nk kcas sean ueeeeeeeeee l
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| 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.

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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.

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0040%3A2. Public record. Not legal advice.