Bosscher v. Township of Algoma

• Decision Date: 03 January 2003
• Docket Number: No. 00-CV-806.,00-CV-806.
• Citation: 246 F.Supp.2d 791
• Parties: Howard J. BOSSCHER, Plaintiff, v. TOWNSHIP OF ALGOMA, Algoma Township Planning Commission, Planning Commission Members Ed Wolven, Bob Newberger, Jack Poolman, Deborah Ellen wood, Dale Heminger, Tyler Lecceadone, and Jack Witham, in their official capacities, Defendants.
• Court: U.S. District Court — Western District of Michigan

Page 791

246 F.Supp.2d 791

Howard J. BOSSCHER, Plaintiff, v. TOWNSHIP OF ALGOMA, Algoma Township Planning Commission, Planning Commission Members Ed Wolven, Bob Newberger, Jack Poolman, Deborah Ellen wood, Dale Heminger, Tyler Lecceadone, and Jack Witham, in their official capacities, Defendants.

No. 00-CV-806.

United States District Court, W.D. Michigan, Southern Division.

January 3, 2003.

COPYRIGHT MATERIAL OMITTED

Earl E. Erland, Grand Rapids, MI, for Plaintiff.

David K. Otis, Plunkett & Cooney, PC, Lansing, MI, Michael S. Bogren, Plunkett & Cooney, PC, Kalamazoo, MI, for Defendants.

OPINION

McKEAGUE, District Judge.

This case involves allegations of federal preemption and deprivation of federal rights by plaintiff Howard J. Bosscher ("plaintiff or "Bosscher") against defendants Township of Algoma, Algoma Township Planning Commission, and Commission members Ed Wolven, Bob Newburger, Jack Poolman, Deborah Ellenwood, Dale Heminger, Tyler Lecceadone, and Jack Witham (collectively "defendants"). Now before the Court are defendants' motion for dismissal on Counts II, III, and IV and cross-motions for summary judgment on Count I of plaintiffs complaint. The Court held hearings on defendants' motion to dismiss on June 10, 2002, and on the motions for summary judgment on October 15, 2002. After a complete review of the record and the parties' arguments, the Court finds that defendants' motions to dismiss and for summary judgment will be granted.

I. Background

Plaintiff is licensed by the Federal Communications Commission (FCC) as an amateur radio operator, or HAM. HAM radio operators communicate with one another through the use of low power fixed or mobile transceivers, sometimes connected to an amplifying antenna or tower. While amateur radio signals "travel" in many different ways—including bouncing off the sun—two of the most common, simplex and repeater, are of particular interest in this case. Simplex radio signals travel directly, or "point to point," from one operator to another on any one of number of frequencies from which they may choose. Essential to simplex communication is that the radio signal travel "line of sight" directly from one operator to another without obstruction by land, trees, or buildings.

By contrast, repeaters are intermediaries that "bounce" an amateur radio transmission from the sender to other operators. This method allows two operators who cannot establish simplex, either due to topographical or technical restrictions, to communicate with one another. While repeaters greatly expand communications opportunities for amateur radio operators, they come with an inherent limitation. Unlike simplex, where operators may communicate on any one of a number of frequencies, each repeater operates only on a specified frequency. As a result, only one conversation may occur at a time and others desiring to use the repeater must wait their turn.

In this case, plaintiff owns and resides on a parcel of property located in Algoma Township, Michigan. This property is situated 792 feet above sea level, and is bordered 2.72 miles to the south by a ridge that rises 906 feet above sea level. This ridge is further heightened by a tall stand of trees, and separates plaintiffs property from Grand Rapids, Michigan, the largest city on the western side of Michigan's lower peninsula.

Desiring to communicate via simplex from his property to HAM operators in the Grand Rapids area south of this ridge, plaintiff retained the services of radio and tower consultant Richard Castanie. After conducting a topographical study of the local area and considering the equipment and frequencies the plaintiff desires to use, Castanie recommended that he construct a 185 foot tall tower in order to effectively and reliably transmit a simplex radio signal from his property over the ridge to the south to HAM operators in and around Grand Rapids.¹

On the basis of Castanie's report, plaintiff submitted to the Algoma Township Planning Commission ("Planning Commission" or "Commission") on December 27, 1999, an application for a special use permit to construct a 180 foot tall tower on his property. Algoma Township ordinances require any resident to wishing to construct a tower in excess of 50 feet to obtain a special use permit. See Algoma Township Ordinance § 4.30. Supporting documents indicated that plaintiffs intended use for the tower was personal communication with other amateur radio operators. In addition, plaintiff had signed a letter of intent to lease space on this proposed tower to the Grand Rapids Area Amateur Radio Association (GRARA) for installation of a repeater system.

The Planning Commission first considered plaintiffs application at its January 18, 2000, meeting. Various Commission members expressed concerns to plaintiff and the GRARA regarding the use of the proposed tower as a repeater, its visual impact on the area (particularly the "Vista View Overlay Zone," a protected area adjacent to US-131, which is the major north-south highway from Cadillac to the north and Grand Rapids to the south), and its incompatibility with existing local zoning. The Commission voted to table the application for further study and to receive more information from plaintiff.

The Commission next took up plaintiffs application at its March 21, 2000, meeting, where it heard from Castanie regarding his report and the technical and topographical limitations of amateur radio. Ultimately, the Commission voted to retain a professional consultant to review plaintiffs application, Castanie's report, and to conduct an independent study of the issue. Several days later the Commission hired Radio North LLC, represented by Max Machuta, to perform this analysis.

The Planning Commission only briefly discussed plaintiffs application at its April, May, and June 2000 meetings, mainly requesting that plaintiff provide information to Radio North for use in its analysis. Radio North issued a report on July 10, 2000, concluding that there were several existing tower sites in the local area that were set on high terrain and would be suitable for housing a repeater system that would serve plaintiffs needs. Radio North further noted that plaintiff, by using a 60 foot tower and that repeater system would enjoy "very suitable coverage."

Considering Radio North's report and plaintiffs objections to the report at its July 18, 2000, meeting, the Commission voted to deny the application for a special use permit. Following the meeting the Commission issued written findings of fact in support of its decision. Plaintiff then filed this action.

II. Standard of Review

The Court may dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint." Zolman v. Internal Revenue Serv., 87 F.Supp.2d 763, 764 (W.D.Mich.1999) (citations omitted). In ruling on the motion, the Court "must construe the complaint in the light most favorable to the plaintiff, accepting] all factual allegations as true." Id. (citations omitted); see In re Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997), cert. denied, 523 U.S. 1106,118 S.Ct. 1675, 140 L.Ed.2d 813 (1998).

As to the cross-motions for summary judgment under Federal Rule of Civil Procedure 56, the Court must look beyond the pleadings and evaluate the facts to determine whether there is a genuine issue of material fact that warrants a trial. Barnhart v. Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1388-89 (6th Cir.1993). An issue of fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact concerns "material" facts only if establishment thereof might affect the outcome of the lawsuit under governing substantive law. Id.

When reviewing the pleadings and other submissions on summary judgment, the Court must draw all reasonable inferences in the light most favorable to the nonmovant. Timmer v. Michigan Dep't of Commerce, 104 F.3d 833, 842 (6th Cir.1997). A complete failure of proof concerning an essential element necessarily renders all other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Production of a "mere scintilla of evidence" in support of an essential element will not forestall summary judgment. Anderson, 477 U.S. at 251, 106 S.Ct. 2505. A party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. Analysis

A. Substantive and Procedural Due Process

Plaintiff alleges that defendants' denial of his application for a special use permit deprived him of constitutionally-protected substantive and procedural due process rights enforceable under 42 U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under color of state law, abridges "rights, privileges, or immunities secured by the Constitution and laws of the United States." 42 U.S.C. § 1983.

Due process under the Fourteenth Amendment has both substantive and procedural aspects. Substantive due process "forbids the government to infringe certain `fundamental' liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." Reno v. Flores, 507 U.S. 292, 301-02, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)(emphasis in original). "Fundamental" liberties are those which are "deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed." Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d...