Beasley v. Potter

Decision Date29 July 1980
Docket NumberNo. G74-48 CA5.,G74-48 CA5.
PartiesPercy BEASLEY, Charles Morris, Albert Holloway and Beasley-Morris Asphalt Paving Corporation, Plaintiffs, v. Dale POTTER, Frank Sharp, Burton Stencil, Arthur Smith, Frank Stout, Edwin Nash, A. C. Barley, Harold Bennett, Homer Cowels, Henry Nelson, Alex Sibley, and F. Wayne Sprague, Defendants.
CourtU.S. District Court — Western District of Michigan

Wilfred A. Dupuis, John W. Davis, Lansing, Mich., Theodore G. Albert, Iron River, Mich., for plaintiffs.

Grant J. Gruel, Grand Rapids, Mich., for defendants.

OPINION

DOUGLAS W. HILLMAN, District Judge.

This is a civil rights action for money damages arising out of the enforcement of a zoning ordinance against a black-owned business in Ionia County, Michigan, and the subsequent denial of a variance by the Ionia County Zoning Commission, in 1972 and 1973. Plaintiffs Percy Beasley, Charles Morris, and Albert Holloway are three black men, and the former officers and sole shareholders of a Michigan corporation, Beasley-Morris Asphalt Paving Corporation (hereinafter B-M Corp.), now apparently dissolved. Defendants Dale Potter, Frank Sharp, Burton Stencil, Arthur Smith, Frank Stout, and Edwin Nash were members of the Ionia County Board of Commissioners at the time of the actions which form the basis of this lawsuit. Defendants Edwin Nash, A. C. Barley, Harold Bennett, Homer Cowels, Henry Nelson, and Alex Sibley were members of the Ionia County Zoning Commission, and defendant F. Wayne Sprague was Ionia County Zoning Administrator during this same time. All are white men.

Defendants are sued in their official capacity as former county officials, pursuant to 42 U.S.C. § 1983.1 Jurisdiction is founded on 28 U.S.C. §§ 13432 and also 1331.3 The amount in controversy exceeds $10,000.00. Plaintiffs' complaint alleges that defendants, acting in concert and under color of state law, retroactively imposed the zoning ordinance on their corporation; threatened criminal enforcement if they operated in violation of the ordinance; interfered with their business relations by writing to their bank and to state agencies from which plaintiffs were seeking permits, and wrongfully denied their application for a special use permit. Plaintiffs allege these actions were taken in accordance with a common scheme, the purpose of which was to exclude plaintiffs from operating an asphalt plant in Ionia County because they are black. They conclude that defendants deprived them of their rights to leased land, thereby damaging their business, and violated their constitutional rights to equal protection of the laws, to due process, and to non-impairment of the obligations of their contracts. As a result of defendants' actions, plaintiffs claim they were denied the profits from such business, their credit rating was destroyed, the assets of B-M Corp. were lost through foreclosure, and plaintiffs became personally liable for the deficits resulting from the foreclosure sale. They seek damages of $750,000.00.4

Defendants deny all allegations of conspiracy and discriminatory motive, and maintain their actions were taken in proper discharge of their duties and responsibilities as public officials.

The case was tried to the court without a jury. With the agreement of counsel, I bifurcated the action, reserving the matter of damages until after determination of liability. During the course of the six-day trial, the parties offered the testimony of 14 witnesses and 36 exhibits for consideration by the court. At the close of plaintiffs' proofs, I dismissed defendants Dale Potter, Frank Sharp, Burton Stencil, Arthur Smith, and Frank Stout from the case. There was no evidence whatsoever that these defendants, acting as the Ionia County Board of Commissioners, had violated plaintiffs' rights by enacting the Interim Zoning Ordinance, and no evidence connecting them with the alleged actions of the other defendants.5 The defendants remaining in the case then proceeded to put in their defense.

Upon careful consideration of all of the evidence, I now conclude that plaintiffs have failed to sustain their burden of proof on each of the claims against the remaining defendants. For the reasons given below, I find in favor of defendants and dismiss this action with prejudice.

DISCUSSION

The court's findings of fact and conclusions of law are contained in the following discussion. Because of the age of the case and the elusiveness of some of plaintiffs' claims, it must be noted at the outset that it was difficult at times to discern all of the elements of this action. Nevertheless, the findings and conclusions herein represent the court's best and most accurate determination of the tangled facts of the case, based on all of the testimony and exhibits.

1. Background.

Plaintiffs, three black men, incorporated in Michigan on February 21, 1971, under the name Beasley-Morris Asphalt Paving Corporation for the purpose of manufacturing, selling, distributing and laying asphalt. Plaintiffs were the sole shareholders and officers of the corporation. On or about July 13, 1971, plaintiffs bought a portable plant consisting of equipment for the production of asphalt from Williams Brothers Asphalt Paving Co. (Williams Bros.), a white-owned company based in the City of Ionia, Ionia County. The purchase was financed by a $50,000.00 loan, guaranteed by the Small Business Administration, from Michigan National Bank in Lansing. The plant was then located on a rural site in Eagle Township in Clinton County, where Williams Bros. had operated for several years, apparently to the displeasure of many residents of the area. When B-M Corp. applied to the Clinton County Zoning Commission for renewal of the plant's special use permit, residents wrote letters and submitted petitions to the zoning authorities complaining that the manufacture of asphalt had created excessive smoke, fumes, noxious odors, and noise and that heavy truck traffic to and from the site had damaged unimproved roads and was a safety hazard. The Eagle Township Board unanimously recommended denial of the permit. During this same time, the Air Pollution Control Section, Division of Occupational Health, of the State Department of Public Health warned plaintiffs that they needed approved emission control equipment before they could operate. Def. Ex. 3. On February 22, 1972, the Clinton County Zoning Commission voted 3-0 to deny the permit, citing public concern and "poor road servicing and health hazards". Def. Ex. 6.

Thereafter, plaintiffs decided to move the corporation's plant to a site in nearby Ionia County, which had no zoning ordinance at the time. Percy Beasley located a five-acre rural site near the corner of Cutler and Clintonia Roads in Portland Township, Ionia County. Clintonia Road runs north and south, forming the boundary between Ionia County to the west and Clinton County to the east. Cutler Road runs east into Clinton County and west into Ionia County at the intersection. This area was largely agricultural but recently had begun to attract people moving out from cities and towns. Near the intersection were several single-family homes.

Because of his previous experience, Mr. Beasley was aware that he needed permission from the state pollution control agencies in order to operate the asphalt plant. On May 5, 1972, B-M Corp. applied to the Air Pollution Control Section for a state permit to install an "air washer" pollution control system on an asphalt plant to be located on the Clintonia Road property. Pl. Ex. 12. On May 8, B-M Corp. executed a notarized lease with Edward G. Bond, Sr., and Dorothy E. Bond, owners of this site, which granted the corporation exclusive rights to take gravel from the premises and to establish an asphalt plant for a term of three years "or until the gravel is depleted from said parcel, whichever occurs first." The sole consideration mentioned in the lease is $.25 per yard of all gravel excavated and used. The lease was filed with the Ionia County Register of Deeds on May 11, 1972. Pl. Ex. 1. Also on May 8, before the same notary public who witnessed the lease, plaintiff executed a certificate of co-ownership in the name of B-M Corp., for filing in Ionia County.6 Def. Ex. 16.

On May 16, the Air Pollution Control Section issued B-M Corp. a permit to install the air washer. Def. Ex. 21, Pl. Ex. 12. By its terms, however, the permit did not approve actual operation of the asphalt plant. Approval to operate required tests after the pollution control equipment was installed. Around this time, plaintiffs moved their equipment onto the Clintonia Road site and began setting up the plant. On May 22, B-M Corp. filed a Statement of New or Increased Use of Waters of the State for Waste Disposal Purposes with the Water Resources Commission of the State Department of Natural Resources, seeking approval for its proposed water pollution control system at the asphalt plant. Def. Ex. 14.

Sometime in early June, 1972, residents in the area of the intersection of Cutler and Clintonia Roads, including Mr. and Mrs. Harry Doehne, observed equipment on the land and became alarmed by the prospect of an asphalt plant near their homes and farms. The Doehnes and other concerned residents soon mounted a campaign of active opposition to the asphalt plant. At first they did not know the equipment was owned by B-M Corp., but rather thought the equipment belonged to Williams Bros. When the Doehnes sought legal assistance to oppose the siting of the plant, a local attorney, accepting their belief as to the ownership of the equipment, declined to represent them because he was a lawyer for Williams Bros. and would have had a conflict of interest. By the end of June, they learned that B-M Corp. was the true owner, but still did not know the company was black-owned.

Opposition to the asphalt plant swelled over the next several months. In late June and July, residents circulated petitions for signatures urging the...

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3 cases
  • Rodgers v. Bd. of Cnty. Comm'rs of Summit Cnty.
    • United States
    • Colorado Court of Appeals
    • April 25, 2013
    ...from considering that the County's dealings with plaintiffs, in their totality, showed a discriminatory motive. See Beasley v. Potter, 493 F.Supp. 1059, 1069 (W.D.Mich.1980) ("The courts have frequently noted the difficult and sensitive task of ascertaining the intent behind official action......
  • Heath Tp. v. Sall
    • United States
    • Michigan Supreme Court
    • January 1, 1993
    ...to conduct initial construction. In fact, the defendants obtained various local permits after the referendum.16 Beasley v. Potter, 493 F.Supp. 1059, 1072 (W.D.Mich.1980).17 Today's holding should not be read by developers to encourage a frantic race toward an arbitrary percentage of complet......
  • Walker v. City of Kansas City, Mo., 87-0939-CV-W-8.
    • United States
    • U.S. District Court — Western District of Missouri
    • October 20, 1988
    ...expenditure, obligation or change in relation to land" even if the nonconforming use has not actually begun); Beasley v. Potter, 493 F.Supp. 1059, 1071 (W.D.Mich.1980) ("A party does not acquire a protected interest in a nonconforming use of property unless he can show nonconformance in a r......
2 books & journal articles
  • Case List
    • United States
    • Bargaining for Development Case List
    • July 19, 2003
    ...Chapel Hill , 326 N.C. 1, 387 S.E.2d 655 (1990) Beach v. Planning Zoning Comm’n , 141 Conn. 79, 103 A.2d 814 (1954) Beasley v. Potter , 493 F. Supp. 1059 (W.D. Mich. 1980) Beaver Meadows v. Board of County Comm’rs , 709 P.2d 928 (Colo. 1985) Benchmark Land Co. v. City of Battle Ground , 94 ......
  • Vested Rights
    • United States
    • Bargaining for Development Article
    • July 19, 2003
    ...of Waukesha, 201 Wis. 2d 356, 548 N.W.2d 528 (1996); Pasco County v. Tampa Dev. Corp., 364 So. 2d 850 (Fla. 1978); Beasley v. Potter, 493 F. Supp. 1059 (W.D. Mich. 1980); Golden Gate Corp. v. Town of Narragansett, 116 R.I. 552, 359 A.2d 321 (1976); City of University Park v. Benner, 485 S.W......

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