Grater v. Damascus Twp. Trs.

Docket NumberCase No. 3:22 CV 318
Decision Date13 July 2022
Citation614 F.Supp.3d 591
Parties Charles GRATER, Plaintiff, v. DAMASCUS TOWNSHIP TRUSTEES, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

Marvin A. Robon, Zachary J. Murry, Barkan & Robon, Maumee, OH, for Plaintiff.

Katie L. Nelson, Office of the Prosecuting Attorney, Napoleon, OH, for Defendant Damascus Township Trustees.

John C. Filkins, III, Law Office of John C. Filkins, Findlay, OH, for Defendant Bates Recycling, Inc.




What is constitutionally required before the government can declare a nuisance, haul away your personal property to sell as scrap, and stick you with the bill? That is the question before this Court.

In 2018, Defendant Damascus Township Trustees declared Plaintiff Charles Grater's property a "nuisance" (Doc. 1-1). After Grater did not comply with the abatement notice, Damascus Township contracted with Defendant Bates Recycling, Inc. to remove 1.5 million pounds of vehicles, equipment, and trash from the property. Grater unsuccessfully sought relief in state court, then filed this federal suit, asking this Court to scrap Ohio's nuisance-abatement law because it violates the Fifth and Fourteenth Amendments of the U.S. Constitution (Doc. 1 at 11–16).


Grater is a farmer and life-long resident of Damascus Township (id. at 4). In the 1950s, Grater's father began buying farm equipment at auction and reselling it, using his two-acre property for storage in the interim (id. ). The Township did not adopt a zoning ordinance for another decade (id. ). Grater inherited the family business after his father's passing, and expanded both the farming operation and the used-equipment business.

In 2015, the Township began sending Grater formal Notices that he was violating its zoning ordinance. See State v. Grater, 2018 WL 3629165, at *1 (Ohio Ct. App. 2018). In May 2017, Grater received notice that he "had until June 10, 2017 to bring [his] [p]roperty into compliance with the [ordinance]." Id. When Grater failed to comply, the Township charged him with eighteen criminal misdemeanors -- nine counts of dumping and nine counts of unlawful property use (Doc. 19-4 at 1–3). In December 2017, Grater was found guilty on all counts. Grater , 2018 WL 3629165, at *1. The convictions were upheld on appeal. Id. at *13.

On August 27, 2018, the Township held a meeting at which the Trustees voted to declare Grater's property a nuisance. On September 10, 2018, Grater received a Notice which stated (Doc. 1-1):

Please be advised that pursuant to Section 505.87 of the Ohio Revised Code[(R.C.)], the Board of Damascus Township Trustees (the "Board") declared your maintenance of the refuse and other debris on your property located at 2636 County Road M constitutes a nuisance, of which you are hereby ordered to remove or abate. See R.C. 505.87(A) and (B)(1). More specifically, you have seven (7) days from the date of this letter to remove or abate the nuisance (refuse and other debris), which includes, but is not limited to, all of the junk motor vehicles, scrap, rubbish, pallets, tires, etc.
If the nuisance is not removed or abated, or if provision for its abatement or removal is not made, within seven (7) days of the date of this letter, the Board shall provide for the abatement or removal, and any expenses incurred by the Board in performing that task shall be entered upon the tax duplicate and become a lien upon the land from the date of entry. See R.C. 505.87(B)(2).

Grater responded by requesting a hearing, which was held October 9, 2018. At the hearing, Grater and the Township each presented sworn witness testimony and submitted several exhibits (Doc. 22). Grater also offered to fence in his property, but the Township declined (id. at 117). On October 29, 2018, the Trustees voted to reaffirm that Grater's property was a nuisance (Doc. 1 at 16).

The following month, Grater filed a lawsuit in state court challenging the Township action (id. at 6). The court dismissed each of Grater's claims, but held an evidentiary hearing on the question of whether Grater's property was "grandfathered" as a nonconforming use (id. ). After the hearing, the court granted the Township's Motion for a Directed Verdict (id. at 6–7). Both sides appealed. The appellate court found that because R.C. 505.87 proceedings are not "quasi-judicial," Grater was not entitled to judicial review. Grater v. Damascus Twp. Trs. , 2021-Ohio-1929, ¶¶ 16–18, 2021 WL 2312773 (Ohio Ct. App. 2021). "Consequently, the parties [were left] in the same position they were in after the Trustees issued their October 29, 2018 resolution affirming their initial August 27, 2018 nuisance declaration." Id. at ¶ 24. The Supreme Court of Ohio declined to hear the case.

With the legal challenge over, the Township made arrangements for the abatement on December 6, 2021 (Doc. 12 at 5). But wait. On December 9, Grater filed a Motion for a Temporary Restraining Order and Preliminary Injunction in state court (Doc. 1 at 9). Those requests were denied on December 13 (id. ). By that time, the Township had hired Bates and the removal process had begun (id. ). The process took several weeks (id. at 9–10). When finished, Bates removed over 1.5 million pounds of equipment and materials, including 70 titled vehicles. The Township credited Grater nearly $171,770 for scrap (Doc. 21-1). This left an outstanding bill of approximately $60,000, which the Township intends to assess as a lien against Grater's land (Doc. 1 at 10).

Grater seeks rulings from this Court that R.C. 505.87 is unconstitutional, and that Defendants unlawfully took his property without just compensation (id. at 2). The parties filed briefs (Docs. 12–17); this Court held oral argument (Doc. 21); and the parties submitted supplemental exhibits to their filings (Docs. 19–20, 22). The constitutional issues are addressed in turn.


42 U.S.C. Section 1983 allows individuals to bring claims in federal court for due-process violations committed by state officials. See Wurzelbacher v. Jones-Kelley , 675 F.3d 580, 583 (6th Cir. 2012). There are two types of due-process claims -- procedural and substantive. To prevail on either claim, Grater must show a violation of a constitutional right by someone acting under color of state law. West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

Procedural Due Process

Procedural due process "protect[s] persons from deficient procedures that lead to the deprivation of cognizable liberty interests." Schulkers v. Kammer , 955 F.3d 520, 545 (6th Cir. 2020) (citations omitted). It "is traditionally viewed as the requirement that the government provide a ‘fair procedure’ when depriving someone of life, liberty, or property.’ " EJS Props., LLC v. City of Toledo , 698 F.3d 845, 855 (6th Cir. 2012) (quoting Collins v. City of Harker Heights , 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ). "To establish a procedural due process violation, [p]laintiffs must show (1) that they have been deprived of a cognizable [property] interest, and (2) that such deprivation occurred without adequate procedural protections." Golf Vill. N., LLC v. City of Powell , 14 F.4th 611, 623 (6th Cir. 2021) (quoting Schulkers , 955 F.3d at 545 ). To determine what procedural protections the Constitution requires in a particular case, the Supreme Court has outlined three factors:

(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional procedural safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedures would entail.

Mathews v. Eldridge , 424 U.S. 319, 321, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

Generally, when the state "seeks to terminate [a protected] interest ..., it must afford ‘notice and opportunity for hearing appropriate to the nature of the case before the termination becomes effective." Pittman v. Cuyahoga Cnty. Dep't of Child. & Fam. Servs. , 640 F.3d 716, 729 (6th Cir. 2011) (quoting Bell v. Burson , 402 U.S. 535, 542, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) ). The test for reasonable notice looks at "whether ‘many notice efforts amounted in the aggregate to a reasonable effort to apprise [plaintiff] of what was going on.’ " McWain v. Clay Twp. , 2022 WL 952730, at *4 (S.D. Ohio 2022) (quoting Ming Kuo Yang v. City of Wyoming , 793 F.3d 599, 604 (6th Cir. 2015) ). Reasonable notice includes post-hearing notice, so long as it takes place prior to the termination of a protected interest. Id. See also Fuentes v. Shevin , 407 U.S. 67, 82, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ("[T]he Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect.").

Substantive Due Process

"[S]ubstantive due process requires that both state legislative and administrative actions that deprive the citizen of ‘life, liberty or property’ must have some rational basis." Pearson v. City of Grand Blanc , 961 F.2d 1211, 1223 (6th Cir. 1992). It protects "certain rights, regardless of the procedures used." Siefert v. Hamilton Cnty. , 951 F.3d 753, 765 (6th Cir. 2020) (citation omitted). To prove a substantive-due-process violation, Grater must demonstrate a constitutionally protected liberty interest that "has been deprived through arbitrary and capricious action." EJS Props. , 698 F.3d at 855 (quoting Braun v. Ann Arbor Charter Twp. , 519 F.3d 564, 573 (6th Cir. 2008) ). The second prong requires "conscience-shocking behavior" -- meaning more than mere negligence. Siefert , 951 F.3d at 766 (considering the "nature of the relationship between the government and the plaintiff, and whether a legitimate government purpose motivated the official's...

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