United States District Court, E.D. Michigan, Southern Division
DANIEL McCAUSLAND, ROBERT McCAUSLAND, IMAC PROPERTIES, LLC, Plaintiffs,
CHARTER TOWNSHIP OF CANTON, CHARLES LAROCQUE, PHILIP LaJOY, TIMOTHY FAAS, TOEBE CONSTRUCTION, L.L.C., THOMAS YAAK, MARK HOOK, and JEFFREY GOULET, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS [ECF NO. 15]
PAGE HOOD, UNITED STATES DISTRICT JUDGE
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 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.
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.
STATEMENT OF FACTS
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
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.
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
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.
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.
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.
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.
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.
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.
Cartwright v. Garner, 751 F.3d 752, 759-60 (6th Cir.
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).
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).
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.
Count III - Federal Takings Clause Claim
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 ...