Richardson v. Township of Brady
| Decision Date | 14 March 2000 |
| Docket Number | No. 99-1169,99-1169 |
| Citation | 218 F.3d 508 |
| Parties | (6th Cir. 2000) Robert T. Richardson, Plaintiff-Appellant, v. Township of Brady, Defendant-Appellee. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Western District of Michigan at Kalamazoo; No. 98-00070--Richard A. Enslen, Chief District Judge.
Michael B. Ortega, Patricia R. Mason, REED, STOVER & O'CONNOR, Kalamazoo, Michigan, for Appellant.
Michael S. Bogren, PLUNKETT & COONEY, Kalamazoo, Michigan, Craig A. Rolfe, Bauckman, Sparks, Rolfe & Thomsen, Kalamazoo, Michigan, Mary Massaron Ross, PLUNKETT & COONEY, Detroit, Michigan, for Defendant-Appellee.
Before: RYAN, MOORE, and FARRIS,* Circuit Judges.
MOORE, J., delivered the opinion of the court, in which FARRIS, J., joined. RYAN, J. (pp. 518-19), delivered a separate concurring opinion.
Plaintiff-appellant Robert T. Richardson appeals an order of the district court granting summary judgment to defendant-appellee the Township of Brady (hereinafter "Township") in his action challenging the Township's animal-unit ordinance on grounds of substantive and procedural due process. The ordinance at issue assigns animal-unit equivalencies for certain livestock based upon the odor-producing characteristics of the animal's waste. Richardson, who operates a nursery-swine facility on his property, argues that the animal-unit ordinance bears no rational relationship to the Township's objective of reducing odor because it fails to differentiate between small and large swine.
Mindful of the principle that the Township's ordinance need not be perfectly tailored to its goals, we conclude that the ordinance withstands substantive due process scrutiny. With regard to Richardson's procedural due process claim, we conclude that Richardson has failed to establish the existence of a protected property interest. Accordingly, we AFFIRM the district court's grant of summary judgment to the Township on both claims.
Robert Richardson owns 194 acres of land within the Township of Brady, on which he operates a nursery-swine facility. Richardson challenges a Township animal-unit ordinance that has the effect of limiting the number of pigs that he may have on his property to 1,999. The animal-unit ordinance, which was enacted in 1987, provides:
Animal Unit (or Animals Per Animal Unit): For purposes of this Ordinance, an animal unit shall be construed as a unit of measure used to compare relative differences in the odor producing characteristics of animal wastes, with the following equivalencies applicable to various animals:
A. Cattle: 1.00
B. Horses: 1.00
C. Swine: 1.00
D. Sheep/Goats 0.50
E. Poultry/Fowl l0.10
The equivalency for types of livestock not specifically listed above shall be the stated equivalency for the type of animal which is most similar in terms of odor producing characteristics of animal wastes, as determined, if necessary, by the Zoning Board of Appeals.
Joint Appendix (hereinafter "J.A.") at 210. Property that is zoned "AG," for agricultural use, may permissibly contain up to 300 animals. Owners of property zoned for agricultural use may obtain a special exception use permit for an intensive livestock operation. An "intensive livestock operation" is defined as:
Any farm or farm operation engaged in raising, breeding, or feeding beef or dairy cattle, horses, swine, sheep, goats, poultry/fowl, turkeys/ducks, or other livestock in concentrations of 300 or more animal units, including any buildings, structures, excavations, or enclosed areas directly involved therein, including land used for pasture or feedlot purposes, and any animal waste storage structures, excavations or areas directly connected to or associated with such operations.
J.A. at 211. Applicants for a special exception use permit for an intensive livestock operation who comply with certain requirements may maintain more than 300 animal units on their property. According to the special exception use provisions, "AG" property located at least 2,640 feet but less than 5,280 feet from property zoned other than "AG" is limited to "less than 2,000 animal units." J.A. at 216-171. "AG" property located at least 5,280 feet from property zoned other than "AG" may contain more than 2,000 animal units, but no more than 10,000 animal units. J.A. at 217, 223.
In January of 1997, Richardson told the township supervisor of his interest in establishing a nursery-swine facility on his property. A nursery-swine facility is part of a three-step operation that begins with newly born pigs and ends with hogs ready for market. Pigs arrive at a nursery-swine facility when they are between fourteen and eighteen days old, weighing between eight and twelve pounds. They depart the nursery-swine facility at the age of nine weeks, at a weight of about fifty to fifty-five pounds. At this age they are taken to a finishing facility, where they stay until they are ready for slaughter.
Because he believes that an economically viable nursery-swine operation must house approximately 4,200 pigs, Richardson suggested to the township supervisor that he would seek to obtain an "interpretation/variance" from the Township Zoning Board of Appeals regarding the definition of animal unit so as to allow a nursery-swine operation at his site. Richardson was told that a better approach would be to seek an amendment to the zoning ordinance text, and the township supervisor prepared proposed amendments to the animal-unit definition that included a provision that nursery swine (defined as swine weighing less than fifty-five pounds) would have an animal-unit equivalency of .50. A public hearing on the proposed text change was conducted on January 30, 1997. The vote on the amendment by the Brady Township Planning Commission was equally divided, so the amendment failed.
Despite the failure of the proposed amendment, Richardson claims that he was assured by members of the Township Board and the Township Planning Commission that action would be taken to amend the animal-unit definition. In anticipation of this amendment, Richardson applied for a special exception use permit to establish a nursery-swine facility on his property. The special exception use permit was granted on February 20, 1997, permitting Richardson to operate a nursery-swine facility involving not more than 1,999 animal units.
In August of 1997, Richardson filed an application for a text change to the animal-unit ordinance, proposing that nursery swine be counted as .40 of an animal unit. Richardson subsequently withdrew this request, allegedly because several members of the Township Planning Commission informed him that they would shortly move to amend the provision on their own initiative. On January 29, 1998, the Township Planning Commission again considered a text amendment, which proposed that swine over fifty-five pounds be treated as one animal unit, while swine under fifty-five pounds be treated as .50 of one animal unit. Richardson claims that the Township Planning Commission recommended approval, but that the Township Board sent the text amendment back to the Planning Commission for further work.
On February 16, 1998, Richardson filed a request with the Zoning Board of Appeals for an interpretation regarding the animal-unit definition as it pertained to nursery swine. However, the Township Board attorney, in a letter to the township supervisor, indicated that Richardson's "request for a text change . . . is not within the statutory jurisdiction of the Zoning Board of Appeals." J.A. at 425 (Letter from Craig A. Rolfe to George Parker). No action on Richardson's request has been taken. On March 4, 1998, Richardson received a civil infraction citation for violating the conditions of his special exception use permit by housing more than 1,999 pigs on his property. That enforcement action is still pending.
Richardson then filed the instant action in the Circuit Court for the County of Kalamazoo. His complaint alleged that the Brady Township animal-unit ordinance, both on its face and as applied, violated his right to equal protection and due process and that it effected a taking of his property without just compensation, all in violation of the United States and Michigan Constitutions. The Township removed the case to the United States District Court for the Western District of Michigan.
On January 20, 1999, the district court granted the Township's motion for summary judgment. The district court considered Richardson's substantive due process and equal protection claims together, explaining that the inquiry for both was whether the ordinance was rationally related to a legitimate governmental interest. The district court easily rejected Richardson's facial substantive due process and equal protection challenge, reasoning that "[r]educing odor is a legitimate end of government zoning action," and that "it is also rational to determine . . . that swine are animals which should be treated as prime smell-producers, and should be weighed as an entire animal unit." J.A. at 634 (D. Ct. Op.). With regard to Richardson's "as applied" substantive due process and equal protection challenge, the district court explained that "[t]he Plaintiff's desire that the Township consider his swine as fractional animal units based on their smaller size is understandable." J.A. at 635 (D. Ct. Op.). The district court concluded, however, that the Township's failure to distinguish between swine of different sizes was not irrational in relation to its goal of odor reduction. The district court reasoned that "[l]imiting the number of swine, of any size, is a rational means of controlling odors," despite the fact that the Township's method might not be perfectly tailored to its ends. J.A. at 636 (D. Ct. Op.). The district court next explained that Richardson...
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