United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO
Corbett O'Meara United States District Judge.
the court is Defendant City of Detroit's motion to
dismiss. The court heard oral argument on January 31, 2018,
and took the matter under advisement. For the reasons
explained below, Defendant's motion is granted.
October 26, 2016, Plaintiff, 1855 Ferry Park, LLC, purchased
property located at 1855 Ferry Park, Detroit, Michigan.
Located on the property was a building that Plaintiff planned
to renovate. Defendant City of Detroit contends that it
inspected the building on April 24, 2017, and found that it
was partially collapsed and structurally unsound. A Notice of
Emergency Ordered Demolition was issued, posted on the
property, and mailed to Plaintiff. On May 31, 2017, the
building was demolished by a city contractor. Plaintiff
alleges that it did not receive the demolition notice until
June 7, 2017, after the building had been razed.
filed its complaint in state court on September 1, 2017,
alleging the following causes of action: Count I, violation
of substantive due process; Count II, violation of procedural
due process; Count III, taking without just compensation;
Count IV, trespass; and Count V, gross negligence. Plaintiff
seeks damages, including compensation for the demolished
building, and a declaration that Plaintiff is not liable for
costs related to the demolition. Defendant removed the case
to this court on September 28, 2017, and filed a motion to
dismiss. Plaintiff concurs that its takings, trespass, and
gross negligence claims may be dismissed (without prejudice),
leaving its due process claims for the court's
argues that Plaintiff's substantive and procedural due
process claims must be dismissed because they are not ripe
for adjudication. If a claim is unripe, federal courts lack
subject matter jurisdiction and the claim must be dismissed.
See Bigelow v. Michigan Dept. of Natural Resources,
970 F.2d 154, 157 (6th Cir. 1992). It is clear
that Plaintiff's takings claim is not ripe, because
Plaintiff has not pursued an inverse condemnation remedy in
state court. Id. See also Williamson Cty.
Regional Planning Comm'n v. Hamilton Bank of Johnson
City, 473 U.S. 172, 195 (1985) (“[I]f a State
provides an adequate procedure for seeking just compensation,
the property owner cannot claim a violation of the Just
Compensation Clause until it has used the procedure and been
denied just compensation.”).
Plaintiff has agreed to the dismissal of its takings claim,
the legal background regarding the ripeness requirement for
takings claims informs the analysis of Plaintiff's due
process claims. In general, constitutional claims that are
“ancillary” or related to a takings claim are
also subject to a finality requirement and are considered
unripe if the takings claim is not ripe. See, e.g., Bigelow,
970 F.2d at 158-60. Plaintiff argues that its due process
claims are not subject to the Williamson County ripeness
requirement because these claims are separate and distinct
from, not ancillary to, its takings claim. Plaintiff relies
upon Nasierowski Bros. Investment Co. v. City of Sterling
Heights, 949 F.2d 890 (6th Cir. 1991) for the
proposition that its due process claims are not subject to
the ripeness requirement. In Nasierowski, the plaintiff
brought a procedural due process challenge to a zoning
amendment that was adopted without notice to the landowner.
The plaintiff in Nasierowski did not assert a takings claim,
but rather presented a “pure” claim of procedural
due process, which distinguishes Nasierowski from this case.
See Bigelow, 970 F.2d at 159.
Bigelow, commercial fishermen alleged that the state of
Michigan deprived them of the value of their fishing
licenses. They alleged takings, due process, and equal
protection claims. After determining that the takings claim
was not ripe for review, the Sixth Circuit also determined
that the plaintiffs' due process claim was
“ancillary” to the takings claim:
The plaintiffs' procedural due process claim is ancillary
to this main issue; they simply assert that they were not
given an effective opportunity to defend their fishing rights
before they were taken. There was thus no
“instantaneous infliction of a concrete injury.”
Until the state courts have ruled on the plaintiffs'
inverse condemnation claim, this court cannot determine
whether a taking has occurred, and thus cannot address the
procedural due process claim with a full understanding of the
relevant facts. Furthermore, addressing the plaintiffs'
procedural due process claim at this stage of the proceedings
would allow future plaintiffs effectively to circumvent the
ripeness requirement for takings claims simply by attaching a
procedural due process claim to their complaint.
Id. at 160.
Bigelow, Plaintiff has brought several constitutional claims
arising out of the same facts as its takings claim, rather
than a purely procedural challenge to a land use regulation.
See Insomnia, Inc. v. City of Memphis, 278 Fed.Appx.
609, 614 (6th Cir. 2008) (“Bigelow
subsequently limited the reach of Nasierowski Brothers to
only a subset of purely procedural challenges to land use
regulations.”). Plaintiff's due process claims -
alleging that it did not have the opportunity to challenge
the demolition before it occurred - are ancillary to its
takings claim. Indeed, a determination of whether Plaintiff
is entitled to compensation for its demolished building will
also likely resolve claims based upon other legal theories.
See Rosedale Missionary Baptist Church v. New Orleans
City, 641 F.3d 86, 91 (5th Cir. 2011) (when
city demolished building without notice, federal procedural
due process claim was unripe because state takings claim was
not yet adjudicated); Braun v. Ann Arbor Charter
Twp., 519 F.3d 564, 573-74 (6th Cir. 2008)
(“At least insofar as the remedy sought by the
plaintiff (money damages) is the same under both the takings
clause and the substantive due process clause . . . the due
process claim is subsumed by the takings claim.”).
IT IS HEREBY ORDERED that Defendant's motion to dismiss
is GRANTED and Plaintiff's ...