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McCausland v. Charter Township of Canton

United States District Court, E.D. Michigan, Southern Division

September 30, 2019





         On August 3, 2018, Plaintiffs filed a twelve-count Complaint against Defendants. On September 12, 2018, Plaintiffs filed an First Amended Complaint (“FAC”). On November 11, 2018, Defendant Charter Township of Canton (the “Township”) and a number of its current and former employees and officers[1] filed a Motion to Dismiss Pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(6) (“Motion to Dismiss:). Dkt. No. 15.[2] The Motion to Dismiss has been fully briefed. For the reasons that follow, the Court grants in part and denies in part the Motion to Dismiss.


         Plaintiffs collectively own eighteen (18) separate parcels of land located in the Township, and Plaintiffs have owned property in the Township since the 1970s. In 1975, Plaintiffs Daniel McCausland and Robert McCausland were approved to operate an auto service business at 1981 N. Lotz Road (the “Property”). At that time, the zoning ordinance classified the Property as C-2, Community Commercial. In 1980, the zoning ordinance was amended and the Property was zoned C-3, which caused the auto service business to be classified as a nonconforming use. Plaintiffs were permitted to continue the auto service business as a legal nonconforming use.

         In 1992, the Property and some surrounding parcels were re-zoned to Mid-Rise Development (“MRD”), and the Township granted Plaintiffs granted a Class B dealer’s license the Property in 1994. Several years later, the Township developed a Comprehensive Plan that included the Lotz Road Corridor Development Plan, as Lotz Road was a dirt road. At that time, the Township also developed what came to be known as the “Corporate Overlay District.” The Property then became subject to the Corporate Overlay District zoning ordinances, in addition to the MRD zoning ordinances. The Township requires a special use permit for any and every proposed use of land within the Corporate Overlay District. Dkt. No. 4, ¶ 21.

         Since the mid-1990s, Plaintiffs have purchase smaller surrounding parcels (comprising the total 18 contiguous parcels) to meet the area requirements for any sort of proposed development in an attempt to make their original few parcels marketable in the only MRD in the Township with Corporate Overlay District requirements, even though the parcels had no water or sewer. Plaintiffs thought they had mitigated any potential losses by assembling the required amount of land area, and they believed the only piece missing was the water and sewer aspect.

         In 2016, the Township began the Lotz Road paving project, which was “[a] $5-million project to transform a pothole-riddled, dirt-and-gravel stretch of Lotz Road into a three-lane, concrete road, between Ford and Cherry Hill.” The project entailed extending water mains, and Plaintiffs inquired about having the water mains extended to their main property on Lotz Road. Plaintiffs were told by Township Officials that they had to hire Toebe to do the work, as the project was closed and Toebe was the “preferred contractor.” Plaintiffs hired Fairway Engineering to draw the proposed plans for the water main. The original plans by Fairway Engineering were completed in mid-June 2016, but the Township engineer had given Fairway Engineering erroneous information about the storm sewer pipe. The storm sewer pipe was 54” wide, not 24” wide, as the Township engineer stated. This difference required Plaintiffs to alter their plans and inhibited their ability to obtain all requisite approvals by the Township’s deadline. Even after Plaintiffs timely submitted their drawings to the Township, the Township delayed approval of the drawings until after the deadline and the Lotz Road paving project was wrapping up. The Township kept $11, 500.00 for “project supervision” for the utility extension, even after they quashed the project.

         Earlier in 2016, the Township had requested an easement over the Property, a request that Plaintiffs denied. Plaintiffs contend that their denial of the easement request triggered retaliatory actions and exacerbated ill-will from the Township toward Plaintiffs that had been building due to Plaintiffs’ history of vocalizing their concern regarding land use and zoning classifications. Plaintiff states that, as a result of the Township’s failure to approve the drawings for the utility easement, Plaintiffs’ land has been rendered valueless.

         In January 2018, the Township filed a four-court complaint in Wayne County Circuit Court, alleging that Plaintiffs violated: (1) Article 6, Section 6.08 of the Zoning Ordinance (Nuisance Per Se for outdoor storage of vehicles); (2) Article 27, Section 27.08 of the Zoning Ordinance (Nuisance Per Se for failure to apply for site plan approval for numerous parcels); (3) M.C.L. § 125.3208 (Unlawful Expansion of a Legal Non-Conforming Use - Nuisance Per Se); and (4) Chapter 78, Article VII of the Township Code of Ordinances - Property Maintenance Code (for failure to maintain exterior property areas, storing or keeping inoperative or unlicensed vehicles, etc.). Plaintiffs state that surrounding properties have utilized outdoor storage (for example, Home Depot across the street blocks the fire lane with outdoor storage), yet those businesses have not been cited and dragged into the courts as Plaintiffs have. Plaintiffs claim that this shows they have been subjected to selective enforcement by the Township ordinance officer, Defendant Mark Hook, and been subject to the Township’s overreaching use of the court system and police powers.

         Plaintiffs First Amended Complaint sets forth twelve counts. The first five counts allege federal claims: (a) violation of the Fourteen Amendment Due Process Clause (Count I); (b) the Township’s Zoning Ordinance is unconstitutional (Count II); (c) violations of the Fifth Amendment Takings Clause (Count III); (d) violations of the (Fourteenth Amendment) Equal Protection Clause (Count IV); and (e) a conspiracy in violation of 42 U.S.C. § 1986 (Count V). Plaintiffs also have asserted several state law claims (Counts VI - X), and “Injunction” claim (Count XI), and a claim for “Costs of Litigation” pursuant to 42 U.S.C. § 1988.


         A. Rule 12(b)(1)

Fed.R.Civ.P. 12(b)(1) provides for the dismissal of an action for lack of subject matter jurisdiction. A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack). United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the court takes the allegations of the complaint as true for purposes of Rule 12(b)(1) analysis. Id.
A factual attack challenges the factual existence of subject matter jurisdiction. In the case of a factual attack, a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court’s authority to hear the case. Id. Plaintiff bears the burden of establishing that subject matter jurisdiction exists. DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).

Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir. 2014).

         Defendants assert that their motion constitutes a factual attack. Dkt. No. 15, PgID 128. As Defendants state, Plaintiff’s allegations need not be presumed true, and “the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Ritchie, 15 F.3d at 598. The Court “has wide discretion” to consider affidavits and documents “to arrive at the factual predicate that subject-matter jurisdiction does or does not exist.” Gentek Bldg. Products, Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir 2007).

         B. Rule 12(b)(6)

         A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s complaint. Accepting all factual allegations as true, the court will review the complaint in the light most favorable to the plaintiff. Eidson v. Tennessee Dep’t of Children’s Servs., 510 F.3d 631, 634 (6th Cir. 2007). As a general rule, to survive a motion to dismiss, the complaint must state sufficient “facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The complaint must demonstrate more than a sheer possibility that the defendant’s conduct was unlawful. Id. at 556. Claims comprised of “labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Rather, “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         IV. ANALYSIS

         Article III of the U.S. Constitution limits federal courts to exercising jurisdiction over actual cases and controversies. Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002). “If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.” Id. Defendants argue that Plaintiffs’ federal claims are not ripe, in particular the Fifth Amendment Takings Clause claim in Count III, a claim that Defendants assert is the basis for all of Plaintiffs’ federal claims.

         A. Count III - Federal Takings Clause Claim

         Defendants argue that Plaintiffs’ federal taking claim is not ripe because it does not satisfy the criteria set forth in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). In Williamson, the Court held that a plaintiff ...

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