Marino v. McDonald, Civ. A. No. 83-CV-9045 PH.

• Decision Date: 20 June 1985
• Docket Number: Civ. A. No. 83-CV-9045 PH.
• Parties: Joseph S. MARINO and Sally Marino, and Marino Sports Center, Inc., a Michigan corporation, Plaintiffs, v. Candice McDONALD, Doris M. Lyon, Cy C. Zytowski, Edward J. Kelly, Antoine G. Khouri, Robert G. Lyons, Richard M. Sheehy, individually and acting as the Harrison Township Board, and Candice McDonald, individually and acting as the Harrison Township Supervisor; and Herbert Glascow, individually and acting as the Harrison Township Building Inspector, and Laura Paletta, individually, and Harrison Township, a Charter Township, Defendants.
• Court: U.S. District Court — Western District of Michigan

611 F. Supp. 848

Joseph S. MARINO and Sally Marino, and Marino Sports Center, Inc., a Michigan corporation, Plaintiffs, v. Candice McDONALD, Doris M. Lyon, Cy C. Zytowski, Edward J. Kelly, Antoine G. Khouri, Robert G. Lyons, Richard M. Sheehy, individually and acting as the Harrison Township Board, and Candice McDonald, individually and acting as the Harrison Township Supervisor; and Herbert Glascow, individually and acting as the Harrison Township Building Inspector, and Laura Paletta, individually, and Harrison Township, a Charter Township, Defendants.

Civ. A. No. 83-CV-9045 PH.

United States District Court, E.D. Michigan, S.D.

June 20, 1985.

Costanzo Z. Lijoi, Bellanca, Beattie, DeLisle Suchy & Matish, Harper Woods, Mich., for plaintiffs.

Timothy Sinclair, Mt. Clemens, Mich., Patrick M. Barrett, Detroit, Mich., for defendants D. Lyon, C. Zytowski, E. Kelly, A. Khouri, R. Sheehy, H. Glascow, L. Paletta and Harrison Tp.

Steven Donavan, Wenger & Donavan, Harper Woods, Mich., for Robert G. Lyons.

MEMORANDUM OPINION AND ORDER

JAMES HARVEY, District Judge.

In the case at bar, the plaintiffs' have brought suit pursuant to 42 U.S.C. § 1983 alleging that the defendants violated their federal constitutional rights to Due Process and Equal Protection in connection with the revocation of a special land use variance. Plaintiffs have also set forth a pendant state claim. The Court now has before it defendants' motion for summary judgment.

Summary judgment is appropriate only where no genuine issue of material fact remains to be decided and the moving party is entitled to judgment as a matter of law. Willetts v. Ford Motor Co., 583 F.2d 852, 855 (6th Cir.1978); F.R.Civ.P. 56(c). In applying this standard, the Court must view all materials offered in support of a motion for summary judgment, as well as, all pleadings, depositions, answers to interrogatories, and admissions properly on file in the light most favorable to the party opposing the motion. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); United States v. Diebold, 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Smith v. Hudson, 600 F.2d 60 (6th Cir. 1979).

Accepting the facts to be as alleged in plaintiffs' complaint, they are as follows: The individual plaintiffs are the owners of a parcel of land in Harrison Township, Michigan, which is zoned for general business use. Plaintiff Marino Sports Center, Inc. leases this property. On or before May 12, 1982, the plaintiffs filed a request with the Harrison Township Planning Commission for a site plan approval in order to make certain improvements to the land. The plaintiffs also applied to the Planning Commission for a special land use permit to allow the construction and operation of a go-cart track.

On June 24, 1982, after proper notice, the Township Planning Commission conducted a public hearing in order to review plaintiffs' site plan and special use permit requests. Following that hearing, the Planning Commission approved plaintiffs' proposed site plan and also voted to approve plaintiffs' special land use permit for a period of one year.

On June 25, 1982, the plaintiffs asked defendant Harrison Township Building Inspector Herbert Glasgow to issue them a building permit for the construction of the go-cart track. Mr. Glasgow informed the plaintiffs that no building permit was required and that they could proceed with construction. Plaintiffs entered into a construction contract and began bulldozing work that day.

On June 29, 1982, the plaintiffs were informed by defendant Township Supervisor Candice McDonald that the Harrison Township Board of Trustees had met the previous evening and passed a resolution purporting to prevent further construction by the plaintiffs until the next board meeting in two weeks. In the interim, the defendant Board of Trustees had requested the township attorney to determine whether the action of the Township Planning Commission could be overruled by the Board of Trustees. The township attorney was to present his report to the Board of Trustees during the July 12, 1982 meeting. Neither the plaintiffs nor the general public was given notice that the Board intended to debate this matter during its June 28th meeting. Also on June 29, defendant Glasgow issued a stop work order directing the plaintiffs to suspend all construction. The plaintiffs claim that neither defendant McDonald nor the Board of Trustees had authority to issue a stop work order.

At some time prior to the July 12 Board of Trustees meeting, the plaintiffs met with the township attorney and the township engineer. The township attorney informed the plaintiffs that the special land use approval granted by the Township Planning Commission was final and could not be overturned by the Board of Trustees. The plaintiffs were further advised that the only requirements which they needed to satisfy in order to resume construction were to obtain culvert and water permits from Macomb County. Finally, the township attorney urged the plaintiffs not to attend the July 12, 1982 Board of Trustees meeting. In the interim between their meeting with the township attorney and the July 12 Board of Trustees meeting, the plaintiffs spent in excess of $15,000.00 in further construction.

The Board of Trustees met, as scheduled, on July 12 and again discussed plaintiffs' special land use variance request. At that meeting, the township attorney advised the Board that it could not overrule the Planning Commission's approval of plaintiffs' special land use variance. He did inform the Board, however, that it could appeal the Township Planning Commission's decision to the Township Board of Zoning Appeals. Plaintiffs allege that defendants McDonald and Khouri "advised and encouraged" citizens in attendance to appeal.

On July 13, 1982, the Board of Trustees filed its appeal with the Board of Zoning Appeals. A separate appeal was also filed by the Pointe Rosa Homeowner's Association. Plaintiffs were served with a second stop work order based on Sections 2202 and 2203 of Article 20 of the Township Ordinances which permits stop work orders to be issued when a matter is appealed to the Board of Zoning Appeals.

On July 14, the plaintiffs filed an action in Michigan Circuit Court seeking an injunction preventing the Board of Trustees from appealing the Planning Commission's grant of the special land use variance to the Board of Zoning Appeals. The plaintiffs also sought an order of mandamus compelling the defendant Township to issue a building permit. On July 20, 1982, the Macomb County Circuit Court issued a decision denying plaintiffs' requests.

The Board of Zoning Appeals met twice to consider the Board of Trustee's appeal. Following public notice, "the Board of Zoning Appeals met on July 22, 1982, heard arguments, took testimony, and reviewed the record. Citizens were allowed to comment." Joseph F. Marino, et al. v. Candice McDonald, et al., No. 69464, slip op. at 2 (Mich.Ct. of App.1984). "On July 28, 1982, the Board of Zoning Appeals again met. On motion of Member Lawrence J. Fischer, the Board voted to reverse the grant of a special land use permit on finding plaintiffs' request did not meet the requirements of Harrison Township Ordinance No. 1907." Id. Plaintiffs had notice of these hearings, attended the meetings and were represented by counsel.

Following the adverse decision of the Board of Zoning Appeals, the plaintiffs appealed to the Michigan Circuit Court in and for the County of Macomb. That Court affirmed the decision of the Board of Zoning Appeals on January 18, 1983. The plaintiffs then appealed to the Michigan Court of Appeals. On April 5, 1984, the Michigan Court of Appeals affirmed both the decision of the Circuit Court which refused to enjoin the appeal of the Board of Trustees to the Board of Zoning Appeals and the decision of the Circuit Court upholding the denial of the special land use variance.

Having failed to obtain the relief sought in Michigan state court, the plaintiffs filed suit in this Court alleging that the defendants violated their federal constitutional rights to Due Process and Equal Protection. The Court now has before it defendants' motion for summary judgment and award of costs and attorney fees. Succinctly, the defendants argue that the plaintiffs' federal constitutional claims are deficient for two reasons. The defendants argue that the plaintiffs were deprived of no cognizable liberty or property interest and, assuming arguendo that they were, that deprivation is not attributable to the defendants. Having considered defendants' arguments and plaintiffs' responses carefully, the Court is persuaded that defendants' motion for summary judgment should be granted.

In order to have a cognizable Due Process or Equal Protection claim, the plaintiffs must be able to demonstrate both that they were deprived of a property interest and that that deprivation was occasioned by state action.

The dispositive issue presented by defendants' motion for summary judgment is whether the plaintiffs have alleged the existence of a property interest sufficient to sustain a Due Process claim and withstand a motion for summary judgment. The plaintiffs argue that the special land use variance granted them by the Harrison Township Planning Commission was "a right to use property" under Michigan law which could not be taken without Due Process. (Plaintiffs' answer to motion for summary judgment, p. 5). Having reviewed plaintiffs' arguments and the record in this matter, the Court has concluded that Michigan law afforded the plaintiffs no right to a special land use variance in this case. Moreover, the Court finds that the plaintiffs are precluded from raising this issue in this Court in light of the decision of the Macomb Circuit Court and the Michigan Court of Appeals.

The United States Supreme Court has addressed generally the issue of what constitutes a property interest in the seminal cases o...