Pearson v. City of Grand Blanc

Citation961 F.2d 1211
Decision Date10 March 1992
Docket NumberNo. 91-1221,91-1221
PartiesNorbert C. PEARSON, also known as Spike, Plaintiff-Appellant, v. CITY OF GRAND BLANC, Defendant-Appellee. J. Larry Tomlinson, et al., Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Steven P. Iamarino, Grand Blanc, Mich. (argued and briefed), for plaintiff-appellant.

Michael S. Bogren (argued and briefed), Plunkett & Cooney, Kalamazoo, Mich., for defendant-appellee.

Before: BOGGS and NORRIS, Circuit Judges; and BERTELSMAN, Chief District Judge. *

BERTELSMAN, Chief District Judge.

This is a federal civil rights case, brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C.A. § 1341, stemming from the routine denial of a zoning change by the defendant City of Grand Blanc, Michigan. The district court granted summary judgment for the defendants. 1

Although the result of the district court opinion, 756 F.Supp. 314, is clearly correct its published opinion 2 adopts the rationale that all federal zoning cases should be treated as "takings." After exhaustive research, we find that this proposition--while it has the undoubted salutary advantage of minimizing the involvement of federal courts in local zoning--cannot be reconciled with current controlling precedent. Our research further reveals the circuits to be deeply divided concerning the theories to be employed in federal court cases challenging zoning. Therefore, we write to collate the law on this subject, catalogue the various approaches, and clarify our own approach.

I. FACTS

Plaintiff Pearson is the owner of a parcel of property in the City of Grand Blanc, Michigan. Plaintiff alleges that there are two zoning classifications assigned to the property, Residential 2 in the rear and Business 1 in the front.

Early in 1989, plaintiff applied for a complete rezoning of the property to B-2. Plaintiff desired to take advantage of an opportunity to sell the parcel to McDonald's for one of its fast food restaurants. Plaintiff originally contended that the divided zoning completely negates any economically viable use of his property, but has withdrawn any taking claim he might have had.

Plaintiff's rezoning application was approved by both the county and city planning commissions. The final decision was up to the city council under state law, however. As it happened, the neighbors were less than enthusiastic concerning the advent of the golden arches in their neighborhood. The request was rejected by the City Council and remanded to the city planning commission.

Subsequently, plaintiff submitted an amended site plan and zoning request, which was similarly rejected by the city council, although approved by the planning commission. Plaintiff avers that the rejection was arbitrary and capricious, depriving him of substantive due process of law. Plaintiff filed this action based primarily on federal claims in the state court, but it was removed to the district court by the defendants. 3 Plaintiff also asserts an equal protection claim, arguing that similar zoning changes have been granted in the past in virtually identical situations.

He contends that the foregoing factors raise issues of material fact which entitle him to have a jury review the decisions of the city council to decide whether they were arbitrary and capricious.

We disagree and affirm, but on the basis of an analysis somewhat at variance with that employed by the trial court.

II. RIPENESS

Some circuits impose a ripeness requirement in zoning cases. This issue must be addressed first because it is jurisdictional. 4 In cases where plaintiff claims that the zoning is so stringent as to constitute a taking without just compensation, the Supreme Court requires what amounts to exhaustion of state judicial remedies, including the bringing of an inverse condemnation action, if the state affords such a remedy. 5 A deprivation of economic viability of the property is also a prerequisite for bringing such an action. 6

The rationale for these requirements in taking cases is that the federal court cannot know what has been taken or what compensation has been afforded until state remedies have been utilized. Until that time, the federal court cannot determine whether a taking has occurred, whether compensation is due, or, if it has been afforded, whether it is just. These prerequisites are not technically an exhaustion requirement, but "a product of the ripeness doctrine." 7

By holding that the taking theory subsumes all other theories in zoning cases, the trial court in the instant case would impose these stringent ripeness requirements on all zoning cases.

Some circuits do impose a less stringent ripeness requirement on non-taking zoning cases. For example, the Eleventh Circuit holds that cases such as the one now before us, which it denominates "as applied substantive due process" claims, are "not ripe until the decision denying commercial zoning has been finally made and applied to the property." 8

Under this approach until at least one meaningful application has been submitted to the local zoning authority, futility is not established and a constitutional challenge to local zoning may not be entertained. 9

The Ninth Circuit imposes an even more stringent ripeness requirement in non-taking zoning cases and requires that the landowner not only submit one meaningful application, but seek at least one variance if that application is denied, before coming to federal court. 10

Another panel of this court recently held that the very existence of an allegedly unlawful zoning action, without more, makes a substantive due process claim ripe for federal adjudication. 11 Plaintiff's claim is, therefore, ripe under the law now prevailing in this circuit. We may observe that plaintiff also met the stricter Ninth Circuit criteria in that he did make an application for an alternate use.

III. SUBSTANTIVE DUE PROCESS

Plaintiff's principal contention is that he was subjected to arbitrary and capricious state action in the denial of his rezoning request and thus deprived of substantive due process of law.

Before we address this argument, some background is required to place the discussion in context. First, let us look at the various kinds of constitutional violations typically asserted in federal zoning cases.

A. Kinds of Federal Zoning Cases

We find the categories of federal zoning cases devised by the Eleventh Circuit to be quite useful in promoting meaningful analysis in this area. 12 Our adopting them will also promote much-needed uniformity among the federal courts on this subject.

These categories of federal zoning claims are:

1. Just compensation takings claim. Plaintiff claims that the zoning applied to his land constitutes a taking of his property without just compensation in contravention of the Fifth Amendment, the remedy sought being the just compensation.

2. Due process takings claim. Plaintiff claims that the zoning applied to his property goes too far and destroys the value of his property to such an extent that it amounts to a taking by eminent domain without due process of law. The remedy sought is invalidation of the zoning regulation.

3. Arbitrary and capricious substantive due process claim. Plaintiff claims that the zoning regulation is arbitrary and capricious in that it does not bear a substantial relation to the public health, safety, morals, or general welfare. Two further subcategories may be discerned under this heading: (a) facial and (b) as applied.

4. Equal protection. Either based on suspect class, invoking strict scrutiny, or mere economic discrimination.

5. Procedural due process. Although not discussed by the Eleventh Circuit, there is, of course, a fifth category where plaintiff claims deprivation of procedural due process. 13

6. First Amendment. A category may also be defined when plaintiff claims that a First Amendment right such as freedom of speech or religion is violated by the zoning ordinance. 14

The case at bar is an "as applied substantive due process" claim. Both kinds of taking theories have been abandoned by the plaintiff, and his equal protection claim is of the economic variety (no racial or other suspect class overtones), which tends to merge with the substantive due process argument. Plaintiff makes no procedural due process or First Amendment claim.

The trial court held that all arbitrary and capricious substantive due process claims are merged into the taking claims described in the first two categories. As we have said, this view has recently been rejected by this court in another case. 15

B. The Many Meanings of Substantive Due Process

Although the term "substantive due process" is used in a variety of contexts in modern constitutional discussion, it is possible to state a general definition:

"The doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed has come to be known as substantive due process." 16

Some of the many contexts in which the term "substantive due process" is used are: 17

1. Application of one of the rights enumerated in the federal constitution, such as the First Amendment, to a state.

2. Application of a right unenumerated in the federal constitution to a state, such as the right to live together as a family. 18

3. An action of state or local government which "shocks the conscience" of the federal court, may violate substantive due process. 19 This court has recently expressed the view that " '[a]pplying the "shock the conscience" test in an area other than excessive force ... is problematic.' " 20

4. The right not to be subject to "arbitrary or capricious" action by a state either by legislative or administrative action is commonly referred to as a "substantive due process right." 21

In the case at bar, the plaintiff asserts only an "arbitrary and capricious" substantive due process claim. The circuits are in substantial disagreement...

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