White Oak Prop. Dev. LLC v. Wash. Twp.

• Decision Date: 04 June 2010
• Docket Number: No. 09-3527.,09-3527.
• Citation: 606 F.3d 842
• Parties: WHITE OAK PROPERTY DEVELOPMENT, LLC, Plaintiff-Appellant,v.WASHINGTON TOWNSHIP, OHIO; Washington Township, Ohio, Trustees; Janie Wills; and Alan Hanselman, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

606 F.3d 842

WHITE OAK PROPERTY DEVELOPMENT, LLC, Plaintiff-Appellant,v.WASHINGTON TOWNSHIP, OHIO; Washington Township, Ohio, Trustees; Janie Wills; and Alan Hanselman, Defendants-Appellees.

No. 09-3527.

United States Court of Appeals Sixth Circuit.

Argued: April 30, 2010.

Decided and Filed: June 4, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Gregory B. O'Connor, McNamee & McNamee, PLL, Beavercreek, Ohio, for Appellant. Brendan D. Healy, Surdyk, Dowd & Turner Co., L.P.A., Miamisburg, Ohio, for Appellees. ON BRIEF: Gregory B. O'Connor, Michael P. McNamee, McNamee & McNamee, PLL, Beavercreek, Ohio, for Appellant. Brendan D. Healy, Robert J. Surdyk, Surdyk, Dowd & Turner Co., L.P.A., Miamisburg, Ohio, for Appellees.

Before: GIBBONS and GRIFFIN, Circuit Judges; DOWD, Senior District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

Plaintiff White Oak Property Development, LLC (“White Oak”) appeals the district court's grant of summary judgment in favor of defendant Washington Township and its trustees (“Township”). White Oak claims that various zoning regulations are unconstitutionally vague, violate the anti-discrimination provisions of the Fair Housing Act and the Equal Protection Clause of the Fourteenth Amendment, run contrary to White Oak's alleged property interests protected by substantive due process, and were enacted as part of a conspiracy by Township officials to deprive White Oak of its procedural due process rights. We disagree and affirm.

I.

The district court accurately set forth the relevant facts:

Plaintiff White Oak Property Development, LLC is the owner of a 60-acre tract of land (“Property”) in Washington Township (“Township”), which is surrounded by a separate 160-acre tract of land that includes an 18-hole golf course (“Golf Course”). White Oak acquired the Property and the Golf Course from the previous owner, Donald Schroer.¹ Schroer had negotiated a Tax Increment Financing agreement (“TIF Agreement”) with Township officials which would have allowed him to construct approximately 94 residences on the Property.

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The Washington Township Zoning Resolution sets forth four districts: (1) Agricultural; (2) Residential; (3) Commercial; (4) Industrial. The Property is zoned Residential “R” District. The Zoning Resolution describes this type of property as follows:

Section 2. RESIDENTIAL “R” DISTRICT

A. PERMITTED USES

1. One (1) Single Family Dwelling subject to lot size requirements, dwelling size requirements, and all other requirements as set forth herein.

2. Home occupations.

3. Storage and or/salvage [sic] of no more than two (2) vehicles that re [sic] unlicensed, disabled, outside of an enclosed building, and visible from the road or from adjacent residential dwellings. Farm Machinery is excluded.

4. Accessory buildings and uses customarily incident to any of the above permitted uses.

B. USES PROHIBITED

1. Any other use not specifically permitted in this section.

On March 15, 2007, White Oak delivered a development plan to the Washington Township Planning Commission which proposed a residential condominium development on the Property (“the Proposal”). The Proposal called for a Planned Unit Development (“PUD”) and included 280 to 300 multi-family units. At 300 units, the Proposal equated to a density of five units per acre. The prices of the units would start in the low $200,000 range.

On March 26, 2007, White Oak presented the Proposal to the Washington Township Trustees during a regular meeting. Defendants Janie Wills and Alan Hanselman were both Trustees at the time. Wills asked whether the development was going to be “Section 8 or low income housing.”

On March 28, 2007, White Oak presented the Proposal to the Washington Township Zoning Commission. Danny Bolend[e]r, the Chairman of the Zoning Commission, drafted and distributed a letter to residents claiming that the Zoning Commission had recommended denial of the development, and that the residents should urge the Trustees to deny it as well. Bolender specifically distributed the letter to those residents living directly adjacent to the Property, on Wardlow Road and Shroufe Road in Washington Township. Bolender himself owns property on Wardlow Road.

In a letter dated May 7, 2007, the Trustees and the Zoning Commission denied the Proposal. The denial was based on the Intensity of Use provision in the Zoning Resolution, which states:

SECTION 5. INTENSITY OF USE

LOT SIZE

- Every lot districted as Commercial or Industrial shall have a minimum of three (3) acres.

- Every lot districted as Residential shall have a minimum of three (3) acres if the dwelling is connected to an on-site sewage disposal system, or a minimum of one (1) acre if the dwelling is connected to a public sanitary sewer system.

The letter states: “[s]ince your proposed development plan does not conform to the Washington Township Zoning Regulations, it cannot be approved as it is now set forth. If you wish to submit a revised plan that does not violate the Washington Township Zoning Regulations, please do so.”

On May 21, 2007, White Oak attended another Trustee meeting and protested the denial. White Oak challenged the Defendants' interpretation of the Zoning Resolution, arguing that the Intensity of Use provision did not support Defendants' denial of the proposed development. White Oak argued that the Intensity of Use provision does not prohibit multi-unit dwellings, as long as each dwelling sits on one or three acres, depending on its sewer. White Oak pointed out that [the] definition of “dwelling” in the Zoning Resolution includes multiple family dwellings:

DWELLING-Any structure, or portion thereof occupied or intended to be occupied exclusively for residential purposes.

-SINGLE FAMILY DWELLING-A detached, independently standing structure occupied or intended to be occupied exclusively for residential purposes by one (1) family or housekeeping unit.

-MULTIPLE FAMILY DWELLING-A detached, independently standing structure occupied or intended to be occupied exclusively for residential purposes by more than one (1) family or housekeeping unit.

As such, White Oak argued that the Intensity of Use provision imposes no limitations on the number of units that can be included in a dwelling.

On June 11, 2007, the Trustees held another meeting. During the meeting the Trustees voted to close Shroufe Road “from the Luke property on back.” This action would effectively eliminate access to the Property because Shroufe Road dead-ends into the Property, and the “Luke property” is the last property before the Property on Shroufe Road.

On June 25, 2007, the Trustees voted to pass Resolution 13-2007, which asks the Brown County Commissioners to vacate Shroufe Road at the 1,438 mark. The Brown County Commissioners subsequently denied the request.

On July 23, 2007, the Trustees voted to rescind the TIF Agreement. The vote came following a motion by Bolend[e]r, who was in the audience. Defendants maintain that the TIF Agreement was rescinded because the original developer was required to provide the Township with an unconditional, irrevocable letter of credit, but no letter of credit was ever issued. White Oak maintains that Bolend[e]r met secretly with Wills and Hanselman and discussed rescinding the TIF. Wills and Hanselman deny that these meetings took place.

White Oak brings its claims pursuant to 42 U.S.C. § 1983, the Fair Housing Act, § 801 et seq., 42 U.S.C.A. § 3601 et seq., and Ohio law. White Oak claims:

(1) the Zoning Resolution is unconstitutional on its face; (2) Defendants have violated the Fair Housing Act; (3) Defendants violated its substantive and procedural due process rights; (4) the Township has violated Ohio law by acting outside its statutory authority; (5) Defendants engaged in a civil conspiracy in violation of Ohio and federal law; (6) Wills and Hanselman have publicized matters which place White Oak in a false light; and (7) Wills and Hanselman have defamed White Oak. White Oak also seeks a declaration that the Zoning Resolution is unconstitutional on its face.

Subsequently, the parties filed a Stipulation of Partial Dismissal of Claims in which the parties dismissed White Oak's claims for false light invasion of privacy and defamation without prejudice.

(Internal citations omitted.)

On April 7, 2009, the district court granted the Township's motions for judgment on the pleadings and summary judgment, treating the motion for judgment on the pleadings as one for summary judgment because the district court considered matters outside the pleadings. See Fed.R.Civ.P. 12(d). In so doing, the district court dismissed all of White Oak's claims with prejudice, except for its state law claims alleging civil conspiracy and a violation of Ohio Revised Code § 519.02. The district court declined to exercise supplemental jurisdiction over these state law claims and dismissed them without prejudice. White Oak timely appeals.

II.

We review de novo a district court's grant of summary judgment. Longaberger Co. v. Kolt, 586 F.3d 459, 465 (6th Cir.2009). Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The moving party has the burden of proving the absence of genuine issues of material fact and its entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When determining whether the movant has met this burden, we must view the evidence in the light most favorable to the nonmoving party. Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir.2007).

III.

White Oak argues that the Zoning Resolution is facially vague in both substance and procedure.

In Association of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545 (6th Cir.2007), we set forth the applicable law governing...