R. E. Cruise, Inc. v. Bruggeman

• Decision Date: 10 January 1975
• Docket Number: No. 74-1309,74-1309
• Parties: R. E. CRUISE, INCORPORATED and Irving Kleiman, Plaintiffs-Appellants, v. George O. BRUGGEMAN, as Director of the Division of Building and Safety Engineering of the City of Warren, Michigan, and Joseph S. Raich, as City Clerk, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 415

508 F.2d 415

R. E. CRUISE, INCORPORATED and Irving Kleiman, Plaintiffs-Appellants, v. George O. BRUGGEMAN, as Director of the Division of Building and Safety Engineering of the City of Warren Michigan, and Joseph S. Raich, as City Clerk, Defendants-Appellees.

No. 74-1309.

United States Court of Appeals, Sixth Circuit.

Decided Jan. 10, 1975.

Gabriel Glantz, Detroit, Mich., for plaintiffs-appellants.

Sherman P. Faunce, II, Warren City Atty., W. Thomas Marrocco, Jr., Warren, Mich., for defendants-appellees.

Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.

The Court delivered a per curiam opinion. EDWARDS, J. (p. 416) delivered a separate concurring opinion.

PER CURIAM.

This action was begun by the owners of real estate in Warren, Michigan who claimed that the defendants, acting under color of law, had refused to issue the plaintiffs a building permit and theatre license in violation of rights guaranteed to them by the Constitution and 42 U.S.C. 1983. The complaint was filed on April 24, 1973 and on August 17, 1973 the district court granted a motion to dismiss. On August 22, 1973 the plaintiffs made a motion to file an amended complaint and to set aside the dismissal. The motion to set aside the dismissal was granted by the court, and the plaintiffs subsequently filed an amended complaint and an amendment thereto. Although no order was entered specifically permitting the filing of the amended complaint, the final memorandum and order of the court dated December 28, 1973 makes clear that the District Judge considered the amended complaint.

On October 12, 1973, the court entered an order in which it set the matter for oral argument on the plaintiffs' motion to amend the complaint and the defendants' motion to dismiss, which the court directed should be treated as a motion for summary judgment. That hearing was held on November 19th and then adjourned to January 29, 1974. Thereafter counsel for both sides indicated to the court that they desired an earlier disposition of the matter. On December 3, 1973, plaintiffs' attorney wrote the court that he had nothing else to submit beyond his amended complaint and a brief which he had filed on November 14th. On November 30, 1973, the defendants filed a formal motion for summary judgment under Rule 56, Fed.R.Civ.P., accompanied by four supporting affidavits. The affidavit of a city planner of Warren, Michigan stated that the parking lot depicted in the plans filed by plaintiffs with their application for a permit would need variances from the Zoning Board of Appeals and that it failed in four respects described therein to comply with an existing ordinance. The affidavit of a zoning inspector of the City of Warren stated that he reviewed the plans filed by plaintiffs on the same day they were submitted with the application and determined that the parking lot and an addition thereto would need site-plan approval before the matter could be processed further. The affidavit stated that this officer, who was not a defendant in the action, put a Planning Commission 'hold' on the plans in reliance on existing ordinances of the City of Warren. An affidavit of the Assistant City Attorney of Warren, Michigan stated that site-plan approval was required for the proposed parking lot in conjunction with the theatre and that the submitted plan did not comply with an existing ordinance of the City of Warren. The affidavit of the defendant Bruggeman recited that the plaintiffs had never sought site-plan approval though informed of the deficiencies of the application. This affidavit further stated that the affiant was unaware of the contents of conversations and meetings between the attorney for the...