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David Brown v. City of Ecorse ( 2009 )


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  •                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 09a0302n.06
    Filed: April 23, 2009
    No. 08-1041
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    DAVID C. BROWN,                                  )
    )
    Plaintiff-Appellant,             )
    )    ON APPEAL FROM THE UNITED
    v.                                               )    STATES DISTRICT COURT FOR THE
    )    EASTERN DISTRICT OF MICHIGAN
    CITY OF ECORSE and CARL BROWN,                   )
    Defendants-Appellees.                 )
    )
    Before: GIBBONS and McKEAGUE, Circuit Judges, and SHADUR, Senior District
    *
    Judge.
    SHADUR, Senior District Judge. David C. Brown (“Brown”) appeals from a district
    court order granting summary judgment for both his targeted defendants -- City of Ecorse
    (“Ecorse”) and Carl Brown, an Ecorse official sued in his official capacity1 -- in an action
    brought under 42 U.S.C. §1983 (“Section 1983") and the Fourteenth Amendment. That
    summary judgment order rejected Brown’s contention that Ecorse violated his “constitutionally
    *
    The Honorable Milton I. Shadur, United States District Judge for the Northern District
    of Illinois, sitting by designation.
    1
    Because the claim against Carl Brown in his official capacity is nothing more than a
    claim against Ecorse itself (see, e.g., Kentucky v. Graham, 
    473 U.S. 195
    , 165-66 (1985)), his
    being named as a codefendant is pure surplusage and may be ignored (id.). Hence we refer only
    to Ecorse in the balance of this opinion.
    protected property and liberty interest to pursue his occupation as a developer by harassment and
    in delay in not granting” him permits to construct three modular homes in Ecorse.2
    For the reasons stated hereafter we affirm the district court’s order. In sum, because the
    City of Ecorse Zoning Ordinance (“Ordinance”) gave its Building Department (and also its
    Zoning Board of Appeals (“Zoning Board”)) the discretion to reject Brown’s application for
    building permits, he did not have a constitutionally-protected property interest in the permits he
    sought. And lacking that property interest, he could not sustain an action based on deprivation of
    his procedural and substantive due process rights.
    BACKGROUND
    According to Brown’s Complaint, on or about December 15, 2005 he applied for building
    permits to build modular homes on each of three vacant lots he owned in Ecorse. As required,
    Brown submitted site plans to the Building Department with the application. His application was
    not approved. Brown states via affidavit that the Building Department never provided a written
    explanation for the denial of his application and that he was instead referred to Ecorse’s mayor,
    who told him, “I don't want them homes over here in Ecorse at all. Your home is ugly, and we
    don't appreciate that home being here in Ecorse. I'm not going to have any more of those houses
    built. I'm going to have that house torn down.”3
    2
    As noted by the district court, “[a]lthough Plaintiff’s Complaint alleges liability based
    upon a liberty interest, he did not pursue that basis in his response to Defendants’ motion [for
    summary judgment].” Nor does Brown pursue that basis on appeal. Accordingly we confine our
    analysis to the key issue before us: whether Brown has a protected property interest needed to
    support his Complaint.
    3
    Because, as stated in the next section of this opinion, we (like the district court) must
    credit Brown’s version of events, what has just been described in the text is accepted as true on
    this appeal.
    2
    Ecorse contends that its building code official Carl Brown determined that Brown’s lots
    failed to meet the minimum square footage requirements for residential homes under Ordinance
    §15.005.4 Ecorse states that Carl Brown also considered Ordinance §4.004 entitled “One Family
    Dwelling Regulations,” which says that such dwellings shall be “aesthetically compatible in
    design and appearance to homes in the neighborhood in which it is located.”
    Although his application was not approved, Brown did not appeal the Building
    Department’s decision to the Zoning Board as permitted under Ordinance § 4.004(h). Instead
    Brown filed his district court Complaint in May 2006. Over 18 months later, on December 7,
    2007, that court granted summary judgment for Ecorse and dismissed the Complaint and the
    action.
    Brown now seeks to present two issues: (1) whether the district court erred when it
    concluded that he had no protected property interest in the issuance of the building permits for
    which he applied and (2) whether denial of those permits constituted violations of his substantive
    and procedural due process rights.5 As to the first issue, Brown argues that he had a protected
    property interest because the building inspector had so little discretion regarding his application
    that approval should have been virtually assured. As to the second, Brown contends that there
    was no rational basis related to legitimate state concerns for denying his application. Because we
    hold that Brown falls at the first hurdle, we do not address the second.
    4
    Brown counters that the lots were sufficiently large. Again we must credit that
    response.
    5
    Brown does not revisit the equal protection arguments that he had raised in the district
    court.
    3
    STANDARD OF REVIEW
    We have jurisdiction under 28 U.S.C. §1291.6 Our review of orders granting summary
    judgment is conducted de novo (Bassett v. Nat’l Collegiate Athletic Ass’n, 
    528 F.3d 426
    , 430
    (6th Cir. 2008)). To that end “we must assume the truth of the non-moving party’s evidence and
    construe all inferences from that evidence in the light most favorable to the non-moving party”
    (Ciminillo v. Streicher, 
    434 F.3d 461
    , 464 (6th Cir. 2006)). Motions for summary judgment
    must be denied in cases when a genuine issue of material fact exists -- “when there is sufficient
    evidence for a trier of fact to find for the non-moving party” (id.).
    APPLICATION OF THE STANDARD
    To prevail under Section 1983 Brown “must establish that a person acting under color of
    state law deprived [him] of a right secured by the Constitution or the laws of the United States”
    (Waters v. City of Morristown, 
    242 F.3d 353
    , 358-59 (6th Cir. 2001)). To that end Brown has
    charged that Ecorse deprived him of his procedural and substantive due process rights under the
    Fourteenth Amendment, which provides in relevant part that a State shall not “deprive any person
    of life, liberty, or property, without due process of law” (U.S. Const. amend. XIV, §1). With the
    existence or nonexistence of “property” being at issue here, Brown cannot reach the question of a
    deprivation of procedural or substantive due process rights unless he is first able to show that he
    6
    We find this case to be ripe for adjudication. While the Ordinance provides that Brown
    could have appealed the Building Department’s denial of his application to the Zoning Board, his
    failure to do so does not render his claim constitutionally unripe (see Williamson County Reg’l
    Planning Comm’n v. Hamilton Bank of Johnson City, 
    473 U.S. 172
    , 193 (1985)). We find the
    case to be prudentially ripe as well. We see no reason to force Brown to go before the Zoning
    Board to develop the record, and nothing is to be gained by postponing the substantive resolution
    of Brown’s Section 1983 claim, given our ability to decide on the merits now (see Ky. Press
    Ass’n v. Kentucky, 
    454 F.3d 505
    , 509 (6th Cir. 2006)).
    4
    had a constitutionally-protected property interest (Ky. Dep’t of Corr. v. Thompson, 
    490 U.S. 454
    ,
    460 (1989) (procedural due process); Silver v. Franklin Twp. Bd. of Zoning Appeals, 
    966 F.2d 1031
    , 1036 (6th Cir. 1992) (substantive due process)).
    If a zoning authority retains discretion to issue or deny a building permit, an individual
    whose permit application has been rejected has no protected property interest 
    (Silver, 966 F.2d at 1036
    ). In Silver we held that a plaintiff in a zoning case could not show that his substantive due
    process rights were violated unless he could first establish that he had a constitutionally-protected
    property interest (id.). At issue there was the township’s rescission of a conditional use permit
    that the plaintiff had been granted to construct residential dwellings (id. at 1031-33). To establish
    a property interest the plaintiff had to show that the zoning appeals board lacked discretion to
    deny his desired use of the land if he complied with certain mandatory minimum requirements (id.
    at 1036). That is, if the board retained the discretion to deny the plaintiff’s zoning certificate even
    after he had complied with those requirements, he had no protected property interest (id.). Such a
    property interest would exist, however, if the board’s discretion were so circumscribed that
    approval of the plaintiff’s proposed use of the property became mandatory once he complied with
    the minimal requirements imposed on him (id.). Discretion by zoning authorities to limit the use
    of property lawfully is therefore the key to establishing whether a plaintiff has a property interest
    in zoning cases such as this one.
    Despite Brown’s arguments to the contrary, the district court was correct in finding the
    absence of a protected property interest in the building permits for which he applied, because the
    Building Department retained discretion as to whether those permits would issue. Under
    Ordinance §4.004(h) it is the Building Department’s responsibility to determine in the first
    5
    instance whether dwellings are “aesthetically compatible in design and appearance to homes in the
    neighborhood in which it is located.” That provision confers discretion on the Building
    Department to approve or deny building permits. While Brown may have hoped that his
    application would be granted, hopes alone -- though they may spring eternal -- do not create a
    constitutionally-protected property interest. That alone dispatches Brown’s lawsuit.7
    Apparently undaunted by his lack of a protected property interest, Brown attempts to
    resurrect his claim on appeal by asserting that the true motivation behind the denial of his permit
    application was an illegal desire expressed by the Ecorse mayor to ban all mobile homes from
    Ecorse. That however distorts the record,8 which reflects not an outright ban on mobile homes in
    Ecorse but rather a statement totally in synch with the Building Department’s evaluation of
    Brown’s application and its rejection of that application on the bases of aesthetics and conformity
    with the neighborhood, both of those being legitimate state concerns (see, e.g., Robinson 
    Twp., 302 N.W.2d at 149
    ).
    7
    As stated earlier, that obviates any need to turn to Brown’s second contention. But we
    note as well that Brown could not bootstrap himself into Fourteenth Amendment protection by
    claiming a property interest in certain procedures that he charges were not followed by Ecorse
    (see, e.g., Experimental Holdings, Inc. v. Farris, 
    503 F.3d 514
    , 519 (6th Cir. 2007) and cases cited
    there).
    8
    In an impermissible departure from the record, Brown’s appellate brief quotes the
    mayor as purportedly having said that he “did not want modular houses built in the City,” a
    statement notably absent from the actual evidence -- Brown’s deposition and affidavit. That
    reflects an effort to liken this case to Robinson Twp. v. Knoll, 
    302 N.W.2d 146
    , 149 (Mich.
    1981), which held that “[t]he per se exclusion of mobile homes from all areas not designated as
    mobile home parks has no reasonable basis under the police power, and is therefore
    unconstitutional.” But no litigant is of course entitled to reshape the facts in the record to fit the
    law.
    6
    CONCLUSION
    For the reasons we have explained, Brown’s lack of a property interest disentitles him
    from invoking the Fourteenth Amendment and hence compels rejection of his Section 1983 claim.
    We therefore affirm the district court’s order granting Ecorse’s motion for summary judgment.
    7