Dubuc v. Green Oak Tp.

• Decision Date: 26 June 2009
• Docket Number: No. 08-13727.,08-13727.
• Citation: 642 F.Supp.2d 694
• Parties: Dennis DUBUC and Carol Dubuc, Plaintiffs, v. GREEN OAK TOWNSHIP, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

642 F.Supp.2d 694

Dennis DUBUC and Carol Dubuc, Plaintiffs, v. GREEN OAK TOWNSHIP, et al., Defendants.

No. 08-13727.

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

June 26, 2009.

COPYRIGHT MATERIAL OMITTED

Edward J. Christensen, South Lyon, MI, Eugene A. Goreta, Ecorse, MI, for Plaintiffs.

Daniel A. Klemptner, Johnson, Rosati, Labarge, Aseltyne & Field, P.C., Farmington Hills, MI, James E. Tamm, Richard V. Stokan, Jr., O'Connor, Degrazia, Bloomfield Hills, MI, for Defendants.

OPINION AND ORDER DENYING PLAINTIFFS' "MOTION FOR PARTIAL SUMMARY JUDGMENT" AND GRANTING DEFENDANTS' "MOTION TO DISMISS"

ROBERT H. CLELAND, District Judge.

Pending before the court are two motions. Plaintiffs Dennis and Carol Dubuc filed a "Motion for Partial Summary Judgment" on March 10, 2009. Defendants Township of Green Oak ("Green Oak"), Mark St. Charles, Michael Kruszewski, and Kim Hunt (collectively "Defendants") filed a "Motion to Dismiss for Judgment on the Pleadings, or in the alternative, for Summary Judgment" on April 27, 2009.¹ Having reviewed the briefs in the case, the court concludes a hearing on the motion is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the court will deny Plaintiffs' motion and grant Defendants' motion.

I. INTRODUCTION

On August 28, 2008, Plaintiffs filed the instant lawsuit against Defendants Green Oak; Mark St. Charles, in both his individual and his official capacity as Township Supervisor; Michael Kruszewski, in both his individual and his official capacity as Building Zoning Administrator; and Kim Hunt, in her individual capacity. In their amended complaint, Plaintiffs allege that Defendants have violated their constitutional rights to procedural due process under the Fourteenth Amendment to the United States Constitution by not allowing them to continue a non-conforming, legal use of Plaintiffs' property. Plaintiffs request several types of relief, pursuant to 42 U.S.C. § 1983, including declaratory relief against Defendants in both their individual and official capacities (Pls.' Am. Compl. ¶¶ 27-37), damages against Defendant Township and the other Defendants in their individual capacities (Pls.' Am. Compl. ¶¶ 38-40), and an as-applied constitutional challenge to Defendant Township's ordinances (Pls.' Am. Compl. ¶¶ 42-46). Plaintiffs also allege a § 1983 retaliation claim against Defendant Kruszewski on the basis that Kruszewski retaliated against Plaintiffs, in violation of the First Amendment, for filing this lawsuit by denying certain building permits to Plaintiffs. (Pls.' Am. Compl. ¶¶ 47-57.)

II. BACKGROUND

In February 2007, Plaintiffs purchased two properties, 10630 Rushton Road and 10638 Rushton Road, located in Green Oak, from the estate of Russell B. Armstrong. (Pls.' Mot. ¶ 7.) Russell Armstrong himself had purchased the properties in August of 1966 and owned the properties until his death in November of 2005 when the properties became part of his estate. (Id. ¶ 6; Pls.' Resp. Br. 3.)

Green Oak enacted its first zoning ordinance in 1967 ("1967 Ordinance") pursuant to the predecessor statute to the Michigan Zoning Enabling Act ("Act"), now codified at Michigan Compiled Laws §§ 125.3601 et seq. (Defs.' Resp. ¶ 2.) At that time, the properties became zoned "Light Manufacturing." (Defs.' Mot. ¶ 5.) Light Manufacturing permitted the manufacture of certain food products and fabrication, but Defendants aver that it did not permit outdoor storage. (Defs.' Resp. ¶ 2, Ex. 2.) In 1973, Green Oak enacted a new zoning ordinance ("1973 Ordinance"), which zoned the properties "Single-Family Residential," and which they remain zoned today (Defs.' Mot. ¶ 7.)

Both the 1967 Ordinance and the 1973 Ordinance created an exception for "legal non-conforming" or "prior non-conforming uses." (Defs.' Resp. ¶ Ex. 2, 4.) Indeed, Section 38-493 of Green Oak's current zoning ordinance states:

Where, at the effective date of adoption or amendment of the ordinance from which this chapter is derived, a lawful use of land exists that is made no longer permissible under the terms of this chapter as enacted or amended, such use may be continued as long as it remains otherwise lawful. . . .

If such nonconforming use of land ceases operation with the intent of abandonment for a period of more than six months, any subsequent use of such land shall conform to the regulations specified by this chapter for the district in which such land is located.

GREEN OAK CHARTER TWP., MI., MUN. CODE ch. 38, art. II, div. 3 § 38-493 (Jan. 31, 1993); (Defs.' Resp. Ex. 4). Plaintiffs contend that the properties have continuously been used, since prior to the 1967 Ordinance, for "both indoor and outdoor commercial storage and manufacturing with retail sales as well as for a contractor storage equipment yard with signage."² (Pls.' Mot. ¶ 4.) Plaintiffs therefore aver that they are permitted to use the properties for these purposes, as prior, non-conforming uses of the property.³

After Plaintiffs purchased the properties on February 28, 2007, Plaintiff Dennis Dubuc inquired of Green Oak regarding the permissible uses of the properties.⁴ (Pls.' Mot. ¶¶ 7-10.) On March 20, 2007, Dubuc sent a letter to Green Oak's Building Zoning Administrator, Defendant Michael Kruszewski, in which Dubuc requested a determination from Kruszewski regarding whether Dubuc was permitted to continue the alleged non-conforming commercial use of the property. (Pls.' Mot. ¶ 11, Ex. O.) Kruszewski replied in writing to Dubuc on April 2, 2007, stating that the properties have "historically been used as a commercial operation, most recently as an indoor storage. Thus, this use is the legal non-conforming use pursuant to our ordinance." (Pls.' Mot. ¶ 12, Ex. P.) The letter also stated ways in which Plaintiffs could apply to the Zoning Board of Appeals ("ZBA") for a variance to adjust the non-conforming use, but it did not inform Plaintiffs that they could directly appeal Kruszewski's determination to the ZBA pursuant to Green Oak ordinances. (Id.)

On September 5, 2007, Plaintiffs applied to Green Oak's ZBA for a variance in the use of the properties. (Pls.' Mot. ¶ 14.) On October 16, 2007, the ZBA held a hearing on the matter, at which Dubuc testified and presented evidence during a public hearing. (Pls.' Mot. ¶ 15, Ex. Z.) However, the ZBA denied Plaintiffs' application for a variance. (Id.) Thereafter, Plaintiffs filed this suit pursuant to § 1983 on the basis that Defendants had denied them procedural due process.⁵

After Plaintiffs filed this lawsuit in federal court on August 28, 2008, Plaintiffs assert that Defendant Michael Kruszewski, Green Oak's Building Zoning Administrator, retaliated against them in violation of their First Amendment rights. Plaintiffs also assert that Kruszewski directed zoning officials not to issue any further building permits for Plaintiffs' properties in retaliation for filing the lawsuit. To support this contention, Plaintiffs submit two affidavits by contractors Steven Preston and Michael Kuehnl. (Defs.' Mot. Ex. 30-31.) Preston states he applied for an electric permit for Plaintiffs' properties on September 5, 2008 and September 26, 2008. (Defs.' Mot. Ex. 30 ¶¶ 3-4.) While he received the earlier permit, he states that the latter application was accepted and a permit was refused because Green Oak personnel had been "told not to issue [any further] permits" for the property. (Id. ¶¶ 3-6.) In his affidavit, Kuehnl states he applied for a heating permit on October 10, 2008 but was told "no further permits could be issued for the above noted properties because of a lawsuit against the township concerning the property." (Defs.' Mot. Ex. 31 ¶¶ 5-7.) He left an application on the counter but never heard anything about it. (Id. ¶ 10.)

Defendants maintain that neither Preston nor Kuehnl ever submitted completed applications, and that Defendants never refused to issue the permits to the contractors. (Defs.' Mot. Br. 16.) Furthermore, Defendants state that since Plaintiffs filed the lawsuits, Defendants have issued several permits for construction on the subject properties, including: a plumbing permit on September 5, 2008 (Defs.' Mot. Ex. 28); an electric permit to Steven Preston on September 9, 2008 (Defs.' Mot. Ex. 29); another electric permit to Preston in January 2009 (Defs.' Mot. Ex. 32); and a mechanical permit to Radiant Energy Systems, Michael Kuehnl's company, in January 2009 (id.).

In their motion, Plaintiffs request that the court grant them summary judgment as to the alleged violations of their constitutional rights and permit the case to proceed to trial only on the question of damages. In their motion, Defendants request that the court grant them summary judgment on the basis that Plaintiffs do not have a protected property interest and, in any case, Defendants provided Plaintiffs with constitutionally adequate due process.

III. STANDARD⁶

Under Federal Rule of Civil Procedure 56, summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). "In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party's favor." Sagan v. United States, 342 F.3d 493, 497 (6th Cir.2003). "Where the moving party has carried its burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial, entry of summary judgment is appropriate." Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

The court does not weigh the evidence to determine the truth of the matter, but rather, to determine if the evidence produced creates a genuine issue...