Peterson v. City of Grand Rapids

• Decision Date: 04 August 2016
• Docket Number: Case No. 1:15-cv-671
• Parties: WILLIAM J. PETERSON, PATRICIA PETERSON, Plaintiffs, v. CITY OF GRAND RAPIDS et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

WILLIAM J. PETERSON, PATRICIA PETERSON, Plaintiffs, v. CITY OF GRAND RAPIDS et al., Defendants.

Case No. 1:15-cv-671

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

August 4, 2016

HON. ROBERT HOLMES BELL

OPINION

Plaintiffs William J. Peterson and Patricia Peterson bring this action alleging violations of their Fourth, Fifth, and Fourteenth Amendment rights, as well as violations of the Michigan Search Warrant Statute and Section 11 of the Michigan Constitution. Plaintiffs allege that Defendants City of Grand Rapids, its employees, Pit Crew, and Pit Crew's owner violated these rights when they "raided Plaintiffs' property and arbitrarily removed personal property," and "totally prohibit[ed] small scale recycling enterprises" from operating in the City, despite a demonstrated need. (2d Am. Compl. ¶ 1, ECF No. 13.)

In response to these allegations, Defendants filed a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). (ECF No. 14.) On April 22, 2016, this Court issued an opinion granting Defendants' motion under Rule 12(b)(1) and dismissing Plaintiffs' exclusionary zoning and just compensation takings claims. (Op., ECF No. 22.) The Court provided notice to the parties that it was treating Defendants' motion to dismiss Plaintiffs' remaining claims under Rule 12(b)(6) as a motion for summary judgment under Rule 56, and allowed the parties 30 days to supplement their motion or response with material pertinent to the claims. The parties have done so.

I. Background

At all relevant times, Plaintiffs lived at 639 Cherry Street in Grand Rapids, Michigan. At this residence, Plaintiff William Peterson ran a "small-scale recycling" business. (See Inspection Photos, ECF No. 15-7.) Mr. Peterson had previously "conducted this activity at several locations in the City. He had been forced to move several times over the years by the actions or directions of [Defendant Eric] Jordan and other City employees." (2d Am. Compl. ¶ 7.) That is because the City's Zoning Code only allows such "small-scale recycling" to be conducted in certain locations. Those engaging in "materials recovery, recycling, wrecking and salvage" must do so on a site that is at least two acres in size, and "[a]ll machinery, equipment, buildings, structures and activities shall be located at least twenty-five (25) feet from any lot line, one hundred (100) feet from a residential Zone District, five hundred (500) feet from a residence, and three hundred (300) feet from any stream, water body or wetland." (Grand Rapids Zoning Code § 5.9.16, ECF No. 20-20.) Plaintiffs' residence did not meet these requirements.

As a result, Plaintiffs received notices that their property was in violation of several city ordinances. These notices mentioned a "[b]ackyard full of junk and miscellaneous items" in violation of the City's Nuisance Code (Notice, ECF No. 15-2), a barn with missing siding and a cement block garage roof cover that was not in good repair in violation of the City's Housing Code (Notice, ECF No. 15-4), and the fact that the property was being improperly used as a business or home occupation in violation of the City's Zoning Code (Notice, ECF No. 15-3).

On June 5, 2012, Plaintiffs filled out an appeal form contesting the violations. (ECF No. 15-4, PageID.148.) The form was "vague." (Herzog Email, ECF No. 20-18, PageID.340.) When William Peterson contacted Heidi Herzog of the City's Code Compliance Division to clarify which of the violations he would be arguing at his appeal, she informed him that she assumed he was appealing the Housing and Zoning violations, because "[t]he Nuisance cases (Vehicles, Trash, Grass, etc.) were not appealable at the time [he] filed because the appeal by date had expired." (Id. at PageID.340-41.)

On June 27, 2012, Defendant Carolyn Forsythe drafted an affidavit for an administrative search warrant. (ECF No. 15-5.) The affidavit sought to "enter the property with the City contractor, Pit Crew, [and] GRPD, to remove all discarded debris/materials, garbage, rubbish, auto parts, appliances/furniture, all unlicensed and/or inoperable vehicles from the property." (Id. at PageID.154.) The state magistrate judge signed the search warrant which authorized, in part, City officials to "remove all unlicensed or inoperable vehicles,debris, garbage, rubbish, auto parts and appliances/furniture from the property." (Id. at PageID.160.) On June 28, 2012, Officer Shelly Weiss served the search warrant on Plaintiffs. (2d Am. Compl. ¶ 24.) The property that was allegedly in violation of the City's Nuisance Code was removed by Defendant Pit Crew. A nuisance work order filled out by Pit Crew indicated that the property was removed as a result of the Nuisance violation. (Nuisance Work Order, ECF No. 15-2, PageID.139.)

Plaintiffs subsequently filed a complaint in this Court on June 25, 2015, an amended complaint on September 16, 2015, and a second amended complaint on September 17.

II. Standard of Review

The Federal Rules of Civil Procedure require the Court to grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

In considering a motion for summary judgment, "the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party." Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009) (citing Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007)). Nevertheless, a "plaintiff must do more than rely merely on the allegations of her pleadings or identify a 'metaphysical doubt' or hypothetical'plausibility' based on a lack of evidence; [a plaintiff] is obliged to come forward with 'specific facts,' based on 'discovery and disclosure materials on file, and any affidavits[.]'" Chappell v. City of Cleveland, 585 F.3d 901, 912 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586-87). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986); see generally Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir. 1989).

II.

Following this Court's dismissal of Plaintiffs' exclusionary zoning and just-compensation takings claims, the following claims remain: (1) violation of Plaintiffs' substantive due process rights; (2) violation of Plaintiffs' procedural due process rights; (3) violation of Plaintiffs' Fourth Amendment rights and section 11 of the Michigan Constitution; and (4) violation of the Michigan Search Warrant Statute.

A. Substantive Due Process

Defendants state that "a careful reading of the complaint leaves Defendants unsure as to whether the Petersons are attempting to assert a substantive due process claim," but that even if they are, the claim is still meritless. (Br. in Support of Mot. Summ. J. 11, ECF No. 15.) Plaintiffs' response brief clarifies that they have, in fact, raised a substantive due process claim.

Substantive due process claims alleging that government actions affect fundamental rights, or those rights "so rooted in the traditions and conscience of our people," EJS Props., LLC v. City of Toledo, 698 F.3d 845, 862 (6th Cir. 2012), are subject to strict scrutiny review. Shoemaker v. City of Howell, 795 F.3d 553, 564 (6th Cir. 2015). The Supreme Court has "identified very few fundamental rights." Id. These rights include "the rights to marry, to have children, to direct the education and upbringing of one's children, to marital privacy, to use contraception, to bodily integrity, to terminate one's pregnancy, and possibly the right to refuse unwanted lifesaving medical treatment." Seal v. Morgan, 229 F.3d 567, 574-75 (6th Cir. 2000) The Sixth Circuit has cautioned against expanding that "brief list." Shoemaker, 795 F.3d at 566; see also Seal, 229 F.3d at 575 ("The Supreme Court has also recognized the uniquely destructive potential of overextending substantive due process protection.").While Plaintiffs argue that they have asserted a substantive due process claim, they have not identified any fundamental right that has been infringed upon.

When the government actions do not implicate fundamental rights, they will be upheld so long as they are rationally related to a legitimate state interest. Shoemaker, 795 F.3d at 564. Under this standard of review, "plaintiffs bear the heavy burden of 'negativ[ing] every conceivable basis which might support [the legislation], . . . whether or not the basis has a foundation in the record.'" Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000) (quoting Heller v. Doe, 409 U.S. 312, 320 (1993)) (alterations in original). Applying this standard, Plaintiff's claim that Grand Rapids City Code § 5.9.24 itself violates substantive due processrights because it requires "people doing small materials repurposing businesses to have a minimum two (2) acre lot size," must fail. "The power of local governments to zone and control land use is undoubtedly broad and its proper exercise is an essential aspect of achieving a satisfactory quality of life in both urban and rural communities." Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68 (1981); see also Adams v. City of Marshall, No. 4:05-cv-62, 2006 WL 3825250, at *3 (W.D. Mich. Dec. 27, 2006) ("It is entirely reasonable for a city to prescribe minimum property maintenance standards for purposes of health and safety and to maintain adjacent land values, as long as the identification of nuisances is based upon non-arbitrary standards."). Plaintiffs' unsupported argument that "there is a...