Curto v. City of Harper Woods

• Decision Date: 28 January 1992
• Docket Number: No. 90-2267,90-2267
• Citation: 954 F.2d 1237
• Parties: Robert CURTO, Individually and d/b/a Curto's Auto Service, Plaintiff-Appellant, v. CITY OF HARPER WOODS, an incorporated municipality, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1237

954 F.2d 1237

Robert CURTO, Individually and d/b/a Curto's Auto Service, Plaintiff-Appellant, v. CITY OF HARPER WOODS, an incorporated municipality,

Defendant-Appellee.

No. 90-2267.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 5, 1991.

Decided Jan. 28, 1992.

Lawrence M. Scott (argued and briefed), Magar, Monahan, Donaldson & Alber, Detroit, Mich., for plaintiff-appellant.

James E. Tamm, Jacqueline I. Heath (argued and briefed), Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, Detroit, Mich., for defendant-appellee.

Before: KENNEDY and MILBURN, Circuit Judges, WILHOIT, District Judge. ^*

PER CURIAM.

Plaintiff-appellant Robert Curto, individually and d/b/a/ Curto's Auto Service, ("Curto" or "Plaintiff") appeals the summary judgment in favor of the Defendant-appellee the City of Harper Woods ("the City" or "Defendant"), whereby the District Court upheld the constitutionality of a zoning ordinance. The ordinance limits the number of vehicles which a service station may allow to be parked on the premises, regardless of the size of the parking lot. The issue on appeal is whether the district court erred in granting summary judgment for the City. For the following reasons, we would affirm in part and reverse in part the District Court's judgment and remand for further proceedings.

I.

Plaintiff-appellant Curto has operated an automobile repair business, Curto's Auto Service, in Harper Woods, Michigan, since 1984. Prior to that time, the business was operated as a gas/service station. There are two "service bays" on the premises. In February 1986, Curto was served with a citation for violating Ordinance § 12-78, which prohibited parking more than three cars per service bay. Section 12-78 of the City of Harper Woods, Mich., Code provided in pertinent part:

(a) Parking at gasoline stations, with the exception of cars at the pumps or waiting for immediate service shall be limited to three passenger type cars for each service [bay], attendant's vehicles and other vehicles incidental to service, except that any partially dismantled or wrecked vehicle shall not be stored for more than a total of eight (8) hours outside the building on said premises. Proper parking space shall be provided on the premises for the above number of vehicles.

The City had apparently taken action against Plaintiff because of complaints by neighboring residential property owners about too many cars being parked on the lot. The case was heard in state district court. Reference is made herein to state court proceedings as they form part of the procedural history of the case sub judice.

On October 16, 1987, Curto and the City entered into a plea agreement, whereby Curto agreed to make certain improvements to the outward appearance of his property in exchange for which the City agreed to be somewhat lenient with the parking regulations. Appellant pleaded "no contest" to the charged violations, and made improvements to his property.

This did not end the problem. Although no new citizen complaints were made after Curto painted the building, built a concrete block wall, and landscaped the area, he received another citation in November 1987 for exceeding the "three car" limit. ¹ Curto again contested the alleged violations in local district court, where he asserted the ordinance was unconstitutional. The court disagreed, but held that the City was estopped from prosecuting the ordinance by the earlier plea agreement. The court also opined that the term "waiting for immediate service," from section 12-78, meant that the vehicle was on the premises, it had a service order written, employees were there to work on it, and the only thing delaying the repairs was that somebody else was waiting ahead in line. (Tr.Proc. 4/14/88 at 22-23, People v. Curto (Mich. 32A Jud'l Dist., No. 87-44931CM), found at Ex. D, Pl's response.) This construction of the ordinance essentially brought Curto into compliance because it allowed more cars to be considered to be "waiting for immediate service," thus allowing a greater total number of cars to be legally parked on the premises. The second complaint was voluntarily dismissed.

In September 1988, the City amended the code to make clear that the ordinances concerning "gasoline stations" applied to "service stations" as well, regardless of whether gasoline was sold or kept on the premises. ² More importantly, section 12-78 was amended to define "waiting for immediate service" as follows:

Vehicles waiting for immediate service are defined as those vehicles at a fuel pump or waiting in line for an available fuel pump. Vehicles waiting for immediate service also include any vehicle awaiting service while the owner or operator remains on the premises for a period of not to exceed 30 minutes. Vehicles which are not being actually worked on because parts are on order, because there is a backlog of work, or because of any other reason shall not be considered vehicles waiting for immediate service.

Subsequent to the amendment, Curto was cited for a violation of the amended ordinance. This lawsuit followed.

In the complaint filed on March 10, 1989, Curto challenged the validity of the ordinance, alleging that it deprives him of due process and equal protection under the law, and that it affected a "taking" of his property. He sought money damages pursuant to 42 U.S.C. § 1983 and for the "taking," an injunction against the enforcement of the ordinance, and damages under a claim of detrimental reliance/promissory estoppel.

The City brought a Motion for Summary Judgment, pursuant to both Rule 56, Fed.R.Civ.P., and Rule 12(b). In addition to arguing that the Plaintiff had failed to state a valid claim, the City asserted that he was unable to overcome the presumption that the ordinance is valid, and therefore, the plaintiff would be unable to sustain his burden of proof in this matter. ³ The City likewise contended that Curto would be unable to establish a confiscation of property claim. The City's motion was supported by an exhibit which is a certified copy of the amended ordinance in question, and by the Affidavit of Counsel for the City. In his affidavit, counsel swears that "the contents of the attached Motion are true and accurate to the best of his knowledge and belief; and the facts are admissible as evidence."

After hearing oral arguments, the District Court sustained the motion, rendering the following oral opinion for the record.

All right. The court will grant the defense motion for summary judgment in this case.

The Court relies, first of all, upon the presumption of validity of the ordinance, and the fact that the plaintiff has failed to raise any question of fact or any question which would rebut the presumption of validity or to suggest that this ordinance is arbitrary or unreasonable or an unreasonable restriction upon plaintiff's use of his property or deprivation of his property or is without a totally rational basis.

The regulation of off-street parking does bear a reasonable relationship to a permissible legislative objective, and that is all it needs to do to survive the due process challenge presented here.

There is a clearly rational basis for the existence of such ordinances. It advances the governmental interest in the safety and welfare of the citizenry, in addition to the aesthetic needs of the neighborhood.

The ordinance also assures adequate egress and ingress from areas surrounding the premises in case of public safety emergencies, and may well assist in preventing congestion of the neighborhood and overflow of vehicles onto the surrounding properties or the street.

There obviously is no taking without compensation because the plaintiff still conducts business that he historically did on his premises. Although he has eliminated the sale of gasoline, he is still able to use the property for the purpose to which it had been adapted.

Whether the ordinance is considered a regulatory one or a zoning one, it enjoys the same scope of examination by this Court and passes the scrutiny of the Court regardless of the category in which it's placed.

There is no question either and no suggestion on this record of a deprivation of the equal protection of the laws.

And the Court does not find that a failure to exhaust has occurred or was required here, and does not find that the city is immune from such a suit as this, for violation of constitutional rights. Judgment is entered on the other bases only.

(Tr.Proc. 9/17/90 at 23-25). The District Court entered an order dismissing all counts with prejudice. ⁴ A timely appeal followed.

II.

Curto contends that the City has failed to meet its burden under both Rule 12(b)(6) and Rule 56, Fed.R.Civ.P. The record discloses that the District Court and the parties treated the motion on the merits as a motion for summary judgment. The issue before this Court does not concern the sufficiency of the complaint. This is not a case where it appears beyond doubt that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Therefore, the appropriate standard of review is that which applies to a grant of summary judgment pursuant to Rule 56.

Appellate review of a grant of summary judgment is de novo. Pinney Dock and Transport Co. v. Penn Cent. Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). The trial court's grant of summary judgment should be sustained if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir.1988).

The moving party bears the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-movant's case. Street v. J.C. Bradford & Co., 886 F.2d...