Dennis Dubuc v. Township of Green Oak , 406 F. App'x 983 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0049n.06
No. 09-1928 FILED
Jan 19, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
DENNIS DUBUC and CAROL DUBUC, )
)
Plaintiffs-Appellants ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
TOWNSHIP OF GREEN OAK, MARK ST. )
CHARLES, MICHAEL KRUSZEWSKI and KIM )
HUNT, )
)
Defendants-Appellees, )
)
MICHAEL E. ROSATI, )
)
Defendant. )
BEFORE: KENNEDY, COLE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Plaintiffs Dennis and Carol Dubuc, property owners in the
Township of Green Oak, have sought to make a federal case out of zoning determinations made by
the Township. The Dubucs filed suit against defendants—the Township and various planning and
zoning officials—alleging that the Dubucs were deprived of their property interests without due
process and that they were retaliated against in response to their filing suit. The district court denied
the Dubucs’ motion for partial summary judgment and granted defendants’ motion for summary
judgment. On appeal, the Dubucs argue that they did not receive the required notice and opportunity
to be heard before they were deprived of a protected interest in the nonconforming use of their
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property, and that they were not required to show actual permit denials in order to establish that their
First and Fourteenth Amendment retaliation claim was ripe for review. Because the Dubucs were
provided adequate notice and an opportunity to be heard, and because no final determination was
ever reached as to any of the Dubucs’ permit applications, the district court properly granted
summary judgment in favor of defendants.
I.
In February 2007, the Dubucs purchased two adjoining pieces of property in the Township
of Green Oak from the Estate of Russell B. Armstrong. Armstrong appears to have owned the
property from 1966 until his death in November 2005, at which point the property became a part of
his estate. While Armstrong owned the property, it underwent a number of changes in its zoning
classification, which eventually led to its being zoned single-family residential. However, the
Dubucs allege that the property “had been openly used for both indoor and outdoor commercial
storage, with offices, and manufacturing with retail sales as well as for a contractor storage
equipment yard with signage for over 40 years.” Accordingly, the Dubucs argue that this use
constituted a legal, prior nonconforming use and that they should be permitted to continue to use the
property for these purposes.
Shortly after the Dubucs purchased the property from Armstrong’s estate, Mr. Dubuc visited
Green Oak Township’s Building Department in order to seek information about permits for
renovating the property. According to the Dubucs, first Lisa Brookins, a planning official for the
Township, and then Kim Hunt, a zoning enforcement official for the Township, informed Mr. Dubuc
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that the property was zoned residential and could not be used for commercial purposes. Brookins
allegedly told Mr. Dubuc that he could speak with defendant Michael Kruszewski, a building official
for the Township, regarding the property. The Dubucs claim that later Mr. Dubuc did speak with
Kruszewski, and that Kruszewski also stated that the property could not be used for commercial
purposes. The Dubucs contend that “this is the first known time in which the Township
communicated to an owner of the property that the prior non-conforming use could not be
continued.” On March 20, 2007, Mr. Dubuc sent Kruszewski a letter asking that he address his
“position concerning [the] non-conforming use of this property,” because, as Mr. Dubuc noted, he
intended to continue the property’s nonconforming use. With this letter, Mr. Dubuc also sent
information, which he believed supported his position regarding the historic nonconforming use of
the property for commercial outdoor storage. On April 2, 2007, Kruszewski sent his response to Mr.
Dubuc, which stated that he had reviewed the information and visited the site, and, accordingly,
determined: “The property has historically been used as a commercial operation, most recently as
an indoor storage. Thus, this use is the legal non-conforming use pursuant to our ordinance.”
Instead of directly appealing this determination, Mr. Dubuc filed an application with the
Township’s Zoning Board of Appeals (ZBA) on September 5, 2007, requesting a change in
nonconforming use and a variance to allow two ground signs. After a hearing on October 16, 2007,
the ZBA voted to deny Mr. Dubuc’s application. Following the denial of his request for
reconsideration, Mr. Dubuc sent a letter to the Township Board on January 29, 2008, asking for a
special meeting concerning his requests regarding the non-conforming use of the property. This was
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not granted. The Dubucs filed suit in federal district court on August 29, 2009, alleging procedural
due process violations. Named defendants were Green Oak Township; Mark St. Charles, in his
official capacity as a Township Supervisor and in his individual capacity; Michael Kruszewski, in
his official capacity as Building Zoning Administrator and in his individual capacity; and Kim Hunt,
in her individual capacity.
During this back-and-forth, the Township issued the Dubucs a plumbing permit and a
mechanical permit for renovation of the property, but added a limitation to both noting that the
nonconforming use of the property was for indoor storage only. However, after the Dubucs filed
suit, the Dubucs allege that Kruszewski refused to process any more of their permit requests, and that
he did so in retaliation for the Dubucs’ legal action. The Dubucs state the following actions were
taken with respect to their requests for permits:
a) Prior to the initial complaint being filed, Plaintiff Dennis Dubuc applied for,
and received permits to extensively renovate a fire damaged building on the
property. However, after the Complaint was filed, his September 18, 2008
permit to rebuild a bath and office on the subject property was denied, despite
the fact that the electrical and plumbing permits had already been issued
(prior to this lawsuit) for the same bath and office. Plaintiff Dennis Dubuc
was told by Defendant Kruszewski that no further permits could be issued for
the subject property pursuant to the advice of Township Attorney Michael
Rosati. Defendant Kruszewski told Plaintiff Dubuc that if he had any
questions as to why permits could not be issued that she [sic] should call
attorney Michael Rosati.
b) On September 5, 2008 Defendants issued a permit to Preston Electric to
provide electrical service to a small restroom, office and a radiant tube
heating system at the subject property, in two separate buildings. However,
after this lawsuit was filed, Preston’s September 26, 2008 permit request was
rejected. Preston was advised by the Township that they were told by the
Township attorney not to issue any further permits for [the property at issue].
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c) On August 22, 2008, Radiant Energy Systems, Inc. applied for and received
mechanical permits from Defendants to install heating systems on the subject
property. However, Radiant’s October 10, 2008 permit was rejected.
Radiant was told by the Green Oak Township Building Department that the
permit request would not be processed because of the Plaintiff”s lawsuit.1
These actions prompted the Dubucs to seek leave to amend their complaint to include a retaliation
claim against Kruszewski pursuant to the First and Fourteenth Amendments and to add the
Township’s legal counsel, Michael E. Rosati in his individual capacity, as a named defendant to the
suit.2 The court granted leave to amend on December 15, 2008.
On March 10, 2009, the Dubucs filed a motion for partial summary judgment, asking the
court to enter an order in their favor regarding defendants’ liability and to set the case for trial on the
issue of damages. On April 27, 2009, the defendants filed their own motion for judgment on the
pleadings or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure
56(c) and/or 12(b)(6). In this motion, the defendants alleged that the Dubucs had failed to establish
a procedural due process claim because they did not have a protected property interest and because
they received notice and an opportunity to appeal Kruszewski’s determination to the ZBA and then
in state court. Moreover, the defendants argued that the individual defendants, St. Charles,
1
Though these dates indicate that at least one permit was issued after the Dubucs filed suit,
the Dubucs contend that any permits issued after the suit was filed were only issued because the
defendants were not yet aware that the suit had been filed since they had not yet been served. The
Dubucs allege that once the defendants became aware of the filing of the suit, they stopped issuing
the Dubucs permits.
2
However, the parties later stipulated to the court’s dismissal, with prejudice, of Rosati from
the suit.
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Kruszewski, and Hunt, were entitled to qualified immunity, and that they were entitled to dismissal
of the official-capacity claims against them, because the Dubucs’ amended complaint did not refer
to any custom, policy, or practice of the Township that gave rise to the alleged violation. Finally,
the defendants argued that the Dubucs failed to establish a valid retaliation claim against
Kruszewski, because the Dubucs presented no evidence that they were actually denied any permits
and because a retaliation claim is not ripe for review until a permit is applied for and denied.
On June 26, 2009, the district court issued an order denying the Dubucs’ motion for partial
summary judgment and granting defendants’ motion for summary judgment. Dubuc v. Green Oak
Twp., 642 F. Supp. 2d 694 (E.D. Mich. 2009). In regard to the Dubucs’ procedural due process
claim, the district court first noted that “[b]oth parties agree that, under Michigan law, a prior,
non-conforming use is a protected property right and is accordingly subject to due process
protections.” Id. at 701. The court found that the relevant date of the determination resulting in the
alleged deprivation of this protected property right was April 2, 2007. Id. at 703. The district court
found that the Dubucs had notice of this April 2, 2007 deprivation because they put together
information and presented it to Kruszewski before the determination was made. Id. Moreover, the
district court found that the Dubucs had an opportunity to be heard regarding this deprivation
through their right to appeal the zoning determination to the ZBA and, ultimately, to the state circuit
court. Id. at 704-05. The district court explained that “[d]ue process is not violated when Plaintiffs
simply do not avail themselves of the opportunity to have a hearing on their claim.” Id. at 705.
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Accordingly, the district court found that the Dubucs could not maintain a claim for violation of
procedural due process.
In regard to the Dubucs’ retaliation claim, the district court focused on the defendants’
ripeness argument. The district court noted that this court “has found that a finality determination
in connection with ‘various constitutional claims arising out of land disputes requires that the
government entity charged with implementing the regulations must have reached a final decision
regarding the application of the regulations to the property at issue.’” Id. at 706 (quoting Grace
Cmty. Church v. Lenox Twp., 544 F.3d 609, 615 (6th Cir. 2008)). Moreover, the district court
explained, “in order for a retaliation claim regarding land use to be ripe, there must be a final
determination by the ‘government entity charged with implementing the regulations.’” Id. (quoting
Grace Cmty. Church, 544 F.3d at 615-16). Because the Dubucs had failed to show any denial or
final decision in regard to their permit applications, the district court found that the Dubucs’
retaliation claim was not ripe for review. Id. Thus, the district court granted the defendants’ motion
for summary judgment. Id. The Dubucs now appeal.
II.
The district court properly granted summary judgment for defendants on the Dubucs’
procedural due process claim. This court reviews de novo a district court’s grant of summary
judgment. Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). Summary judgment should be
granted “if the movant shows that there is no genuine dispute as to any material fact and the movant
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is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). The Dubucs pursued their
procedural due process claim through a 42 U.S.C. § 1983 cause of action.
To establish a procedural due process claim pursuant to § 1983, plaintiffs must
establish three elements: (1) that they have a life, liberty or property interest protected
by the Due Process Clause of the Fourteenth Amendment to the United States
Constitution, (2) that they were deprived of this protected interest within the meaning
of the Due Process Clause, and (3) that the state did not afford them adequate
procedural rights prior to depriving them of their protected interest.
Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999).
Even if we assume that the Dubucs were deprived of a protected property interest in the
nonconforming use of their property,3 summary judgment was still appropriate as the Dubucs’
received ample process. “Generally, the process that is due before a property deprivation includes
prior notice and an opportunity for a predeprivation hearing.” Warren v. City of Athens, Ohio, 411
F.3d 697, 709 (6th Cir. 2005) (citing Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994)).
The Dubucs cannot claim that they did not have prior notice of this alleged deprivation, as they have
admitted that Mr. Dubuc submitted letters with information regarding the nonconforming use of the
property to Kruszewski on March 20, 2007 and March 23, 2007. This shows that Mr. Dubuc had
3
The Michigan Supreme Court stated in Heath Twp. v. Sall, 502 N.W.2d 627, 629 (Mich.
1993), that a “prior nonconforming use is a vested right in the use of a particular property that does
not conform to zoning restrictions, but is protected because it lawfully existed before the zoning
regulation’s effective date.” Because the available process in this case was obviously adequate, we
express no opinion on whether there was a property interest for federal due process purposes, and
if so whether the determination in this case amounted to a deprivation of the interest. See Hussein
v. City of Perrysburg, 617 F.3d 828, 832 (6th Cir. 2010) (holding that merely giving notice that a
particular use of property is illegal does not amount to a deprivation of a property interest).
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actual notice of the impending determination. In fact, Mr. Dubuc essentially initiated the alleged
deprivation by requesting that an official determination be made.4
In regard to a predeprivation hearing, we have explained,
The predeprivation process need not always be elaborate, however; the amount of
process required depends, in part, on the importance of the interests at stake. . . .
Moreover, the sufficiency of predeprivation procedures must be considered in
conjunction with the options for postdeprivation review; if elaborate procedures for
postdeprivation review are in place, less elaborate predeprivation process may be
required. In some cases, postdeprivation review may possibly be sufficient, and no
predeprivation process is required.
Leary v. Daeschner, 228 F.3d 729, 742-43 (citations omitted). The Dubucs were given an
opportunity to be heard on a number of occasions.5 Prior to Kruszewski’s determination, the Dubucs
4
In their reply brief, the Dubucs insist that the determination regarding the prior
nonconforming use of their property was made prior to Mr. Dubuc’s requesting an official
determination from Kruszewski, which suggests that they did not receive the appropriate notice.
However, in Sinclair v. City of Ecorse, this court rejected a similar argument by stating,
[The plaintiff] argues here that he should have been given notice that the
nonconforming use had lapsed at the time the lapse occurred. However, . . . this
lapse occurred months or years before Sinclair bought the property. Therefore, it was
not only impracticable but (since the City is not possessed as far as we are aware of
a crystal ball) impossible to give Sinclair notice at that time.
366 F. App’x 579, 583 (6th Cir. 2010).
5
The steps taken by the Township in this case fall in line with the normal processes when
making zoning determinations. This court noted as much in Sinclair, when we explained,
The administrative setup we see in this case is typical. An official, usually known
as the “building inspector” or “zoning official,” makes a preliminary determination
when a particular piece of property is sought to be developed or improved. This
determination includes whether the property conforms to the zoning ordinance or, if
not, whether there is a viable nonconforming use. Following this preliminary
determination, the landowner may appeal a decision that the property is
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were able to submit information in support of their position regarding the non-conforming use of the
property. In fact, the Dubucs even admit that Kruszewski requested additional information regarding
the intended use of the property and that the Dubucs were given an opportunity to submit further
explanations in this regard. After Kruszewski’s determination, the Dubucs had the ability to appeal
his decision to the ZBA and then to the state circuit court,6 but they did not take advantage of these
opportunities.7
The process provided to the Dubucs did not violate the due process clause. In Mathews v.
Eldridge, the Supreme Court laid out three factors to be considered when determining whether the
nonconforming to the Zoning Board of Appeals by seeking a variance—i.e., a
“license to use the property in a way not permitted under an ordinance,”—on grounds
such as hardship or based on the unusual features of the property. In addition to
seeking a variance, however, the landowner may also contest the designation that the
property was properly classified as nonconforming in the first place.
366 F. App’x at 583.
6
Specifically, the Township’s ordinances permit “an appeal [to] be taken to the ZBA by any
person . . . affected by a decision of any body charged with enforcement of this chapter or of an
administrative official of the department of building and zoning concerning the administering and
enforcing of the provisions of this chapter.” Green Oak Charter Township, Mich., Code ch. 38, art.
II, div. 3, § 38-94(a) (1998). The appeal must be taken within thirty days of the decision being
appealed. Id. Moreover, the appeal “shall stay all proceedings in furtherance of the action appealed
from, unless the building administrator certifies to the ZBA . . . that . . . a stay would, in his opinion,
cause imminent peril to life or property.” Id. at § 38-94(b). In addition, state law provides that “[a]
party aggrieved by the decision [of the ZBA] may appeal to the circuit court for the county in which
the property is located.” Mich. Comp. Laws § 125.3605.
7
Though the Dubucs did seek a variance on the property—to change the nonconforming use
to “commercial office and contractor equipment and material storage yard” on Parcel No. 1 and to
“commercial RV sales, service, repair and RV storage” on Parcel No. 2—and received a hearing in
relation to this request, they never directly appealed the nonconforming-use determination itself to
the ZBA.
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process provided was adequate: (1) “the private interest that will be affected by the official action;”
(2) “the risk of an erroneous deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards;” and (3) “the Government’s
interest, including the function involved and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.” 424 U.S. 319, 335 (1976).
In this case, the Dubucs assert an interest in avoiding lost business because of the inability
to offer outdoor storage, alleging that the property will suffer a twenty-five-percent reduction in its
market value without this non-conforming use. However, the Township’s interest in ensuring that
the property is used for the proper purpose is also important, as the Township must protect the
interests of the Township’s citizens. The final factor is the most significant in this case, as the
Dubucs have failed to demonstrate why the procedures provided do not adequately protect their
interests, or, in other words, they have not shown that they suffer a great risk of being erroneously
deprived of their property interest or that some other substitute procedure would be more valuable.
In fact, because the Dubucs did not even take advantage of all of the procedures available to them,
it would be difficult for them to argue the inadequacy of the procedures. If the Dubucs had as much
convincing evidence regarding the property’s prior use as they claim they did, a direct appeal to the
ZBA could have relieved them of Kruszewski’s adverse determination.8 Moreover, the Township’s
8
The Dubucs challenge any reliance on these appellate procedures because “a
post-deprivation appeal to an administrative body such as the ZBA does not allow an aggrieved party
the opportunity to assert constitutional questions.” See Houdini Props., LLC v. City of Romulus, 743
N.W.2d 198 (Mich. 2008). This argument is incoherent. The statement assumes that what the
Dubucs would be raising before the ZBA are their procedural due process arguments. Instead, the
ZBA would hear the merits of the Dubucs’ zoning dispute, that is whether the alleged prior
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ordinance provides for a stay of any actions in furtherance of the determination being appealed,
which would have allowed the Dubucs to continue the alleged outdoor storage non-conforming use
of the property until the ZBA made a final determination. However, the Dubucs did not avail
themselves of these opportunities, and they should not be able to now use their inaction against the
defendants in claiming a violation of due process. See Santana v. City of Tulsa, 359 F.3d 1241, 1244
(10th Cir. 2004) (“A party cannot create a due process claim by ignoring established procedures.”).
In Sinclair v. City of Ecorse, this court upheld similar processes. 366 F. App’x 579 (6th Cir.
2010). The plaintiff in Sinclair sued the city and some of its officials for refusing to grant him a
certificate of occupancy, based on the lapse of a nonconforming use, for a house he purchased from
the county in a tax sale. Id. at 581-82. The plaintiff’s sole argument on appeal was that the
defendants violated his due process rights “by not providing him a hearing prior to terminating the
property’s nonconforming use.” Id. at 582. We noted that “‘where a pre-deprivation hearing is
impracticable or quick action is necessary, a post-deprivation hearing may be adequate.’” Id. at 583
(quoting Mator v. City of Ecorse, 301 F. App’x 476, 479 (6th Cir. 2008)). Accordingly, “we h[e]ld
that [the plaintiff’s] appeal to the [ZBA], the hearing held therein, and the judicial review that
followed afforded him complete procedural due process.” Id. Though the Dubucs did not avail
themselves of the appellate processes like the plaintiff in Sinclair, that case shows that the
postdeprivation review provided, which is much like that which was available to the Dubucs,
nonconforming use of outdoor storage is still in effect. Accordingly, this argument is circular and
does not support the Dubucs’ procedural claims.
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satisfies due process. Accordingly, the Dubucs have not shown that they did not receive adequate
due process.
III.
Because the permit applications filed by the Dubucs were never denied, the Dubucs’
constitutional retaliation claim against Kruszewski is not ripe for review. Before the district court
even reaches the merits of the Dubucs’ retaliation claim, it is permitted to dismiss that claim if it is
not ripe for review. “Ripeness is one of several principles of justiciability predicated on both
‘Article III limitations’ and ‘prudential reasons for refusing to exercise jurisdiction,’” and “[t]he
doctrine is ‘designed to prevent the courts, through premature adjudication, from entangling
themselves in abstract disagreements.’” Insomnia Inc. v. City of Memphis, Tenn., 278 F. App’x 609,
612 (6th Cir. 2008) (quoting Ky. Press Ass’n v. Kentucky, 454 F.3d 505, 509 (6th Cir. 2006)). This
court has noted three factors to consider in determining if a claim is ripe: “‘(1) the likelihood that
the harm alleged by [the] plaintiffs will ever come to pass; (2) whether the factual record is
sufficiently developed to produce a fair adjudication of the merits . . . ; and (3) the hardship to the
parties if judicial relief is denied at [this] stage in the proceedings.’” Id. (first and third alterations
in original) (quoting Warshak v. United States, 490 F.3d 455, 467 (6th Cir. 2007)). The Supreme
Court broadened this ripeness inquiry in cases alleging a taking of a property interest by first
requiring that the government entity have reached a final decision regarding the interest at issue. Id.
(citing Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172,
186 (1985)). Moreover, we extended this finality requirement “beyond claims of regulatory takings
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to various other constitutional claims arising out of land use disputes,” including First Amendment
retaliation claims.9 Id. at 613, 615-16. Accordingly, the district court was warranted in requiring
a final decision on the Dubucs’ permit applications before entertaining their retaliation claim.
The Dubucs have failed to allege any facts to support a finding that their permit applications
were ever actually denied. In fact, Mr. Dubuc even admitted in his deposition that one of the permits
at issue was never denied, and the Dubucs note in their brief to this court that the electrical permit
in dispute was eventually issued and that two other permit applications were simply never processed.
However, on appeal, the Dubucs have asserted for the first time that their permit applications were
constructively denied pursuant to Mich. Comp. Law § 125.1511(1).10 Even if this court accepts that
9
We have explained the following four policy considerations that “underl[ie] the extension
of the Williamson County finality requirement to constitutional claims arising in land disputes:” 1)
development of a full record; 2) demonstration of precisely how a regulation will be applied to a
particular piece of property; 3) providing the relief the property owner seeks without judicial
entanglement in constitutional disputes, so that disputes can be decided on non-constitutional
grounds whenever possible; and 4) appreciating that land-use disputes are uniquely matters of local
concern more aptly suited for local resolution. Insomnia Inc., 278 F. App’x at 613 (quoting Murphy
v. New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir. 2005)). Notably, “the only type of case
in which we have not imposed the finality requirement on constitutional claims arising out of land
use disputes is that which presents a purported violation of procedural due process.” Id. at 614.
10
This provision states:
The enforcing agency shall examine an application for a building permit. If the
application conforms to this act, the code and the requirements of other applicable
laws and ordinances, the enforcing agency shall approve the application and issue a
building permit to the applicant. An application shall be granted, in whole or in part,
or denied within 10 business days, except that in case of an unusually complicated
building or structure, action shall be taken within 15 business days. Failure by an
enforcing agency to grant, in whole or in part, or deny an application within these
periods of time shall be deemed a denial of the application for purposes of
authorizing the institution of an appeal to the appropriate board of appeals.
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this provision caused the constructive denial of the Dubucs’ permit applications, that does not
necessarily satisfy the finality requirement. Instead, Grace Community Church v. Lenox Township,
demonstrates that the permit applications’ denial would not be final until ruled upon by the ZBA.
544 F.3d 609, 613-18 (6th Cir. 2008). Pursuing this ability to appeal would allow the administrative
record to be further developed, so that the issue might be resolved at the administrative level and the
underlying retaliation claim deemed unnecessary. “‘We do not want to encourage litigation that is
likely to be solved by further administrative action and we do not want to put barriers to litigation
in front of litigants when it is obvious the process down the administrative road would be a waste
of time and money.’” Id. at 616-17 (quoting Bigelow v. Mich. Dep’t of Natural Res., 970 F.2d 154,
158 (6th Cir. 1992)). In the Dubucs’ case, however, it is not apparent that their issues could not be
resolved with further administrative action, especially considering the Dubucs’ concession that at
least one of the permits was eventually issued and that communications were received in regard to
(Emphasis added.)
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the other two applications.11 Thus, the Dubucs’ permit applications have not yet reached a final
determination, and their retaliation claim is not ripe for review.
IV.
During the pendency of this appeal, one of the individual defendants, Michael Kruszewski,
died, prompting the defendants to file a suggestion of death with the district court on April 19, 2010.
Because Kruszewski is the only party to the defendants’ retaliation claim, this court requested that
the parties submit letter briefs addressing whether that claim should be dismissed. The defendants’
letter brief alleged that because the Dubucs failed to file a motion for substitution or any motion for
extension of time within ninety days of the service of the suggestion of death, the Dubucs’ retaliation
11
In regard to the status of their permit applications the Dubucs stated as follows:
Various permit applications were not processed for 3 months without any further
explanation as to why they were not processed other than Defendants-Appellees’
preference that the applications go to the township attorneys. R. 79, Response to
Motion for Attorney Fees, Exhibit A, affidavit of Steve Preston of Preston Electric,
stating that Green Oak Township personnel informed him that they were told not to
issue permits for Plaintiffs’ property. See also id., Exhibit B, affidavit wherein Mr.
Preston also states that after applying for an electrical permit in September of 2008
that he did not hear back from the township until January, 2009 (3 months later)
when he was called and told that the permit was ready. Apparently sometime in
January 2009 the Appellees realized that their refusal to process permit applications
was in violation of due process. Also see id., Exhibit C, affidavit of David Kuehnl
(Radiant Energy), wherein he states that on January 14, 2009 he called the township
about a permit application that was filed with the Township Building Dept., three
months earlier, on October 10, 2008 and that they told him he must fill out a new
application because his original could not be found.
There is also a third permit application that was not processed. After three
months of not being processed, the Township sent out their first response. It was a
letter stating that they had received the application and that it was deficient and could
not be processed. That permit has never been issued.
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Dubuc et al. v. Township of Green Oak et al.
claim should be dismissed pursuant to Federal Rule of Civil Procedure 25(a)(1) and Federal Rule
of Appellate Procedure 43(a). However, the Dubucs claimed that they were not late in seeking
substitution because the defendants failed to serve their suggestion on or indicate who was
Kruszewski’s representative, and because Appellate Rule 43 does not contain the same time
constraints as Civil Rule 25. In the alternative, the Dubucs argued that even if they were late, they
should be allowed to substitute Kruszewski’s representative to the suit pursuant to Federal Rule of
Civil Procedure 6(b) and because their failure to timely seek substitution constitutes excusable
neglect. The Dubucs then filed a motion for substitution with this court on November 29, 2010,
seeking to substitute Denise Kruszewski for defendant Michael Kruszewski.
Because we hold that the Dubucs’ retaliation claim is not ripe for review, the Dubucs’ motion
for substitution filed with this court on November 29, 2010 is moot.12
V.
For these reasons, we AFFIRM the district court’s grant of summary judgment on the
Dubucs’ procedural due process and retaliation claims.
12
In addition, because the district court was correct in granting summary judgment for the
defendants on the Dubucs’ procedural due process and retaliation claims, we need not address the
individual defendants’ argument that they are entitled to qualified immunity.
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