Golf Village North v. City of Powell, Ohio ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0504n.06
No. 19-3920
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GOLF VILLAGE NORTH LLC; TRIANGLE ) FILED
PROPERTIES, INC., ) Aug 27, 2020
) DEBORAH S. HUNT, Clerk
Plaintiffs-Appellants, )
)
ON APPEAL FROM THE
v. )
UNITED STATES DISTRICT
)
COURT FOR THE
CITY OF POWELL, OHIO; DAVID BETZ, in his )
SOUTHERN DISTRICT OF
official capacity as Powell, Ohio’s Director of )
OHIO
Development, )
)
Defendants-Appellees. )
)
BEFORE: BOGGS, GRIFFIN, and READLER, Circuit Judges.
GRIFFIN, Circuit Judge:
This zoning dispute between a land developer and the City of Powell, Ohio stems from the
developer’s plan to build a hotel on a piece of vacant land. The developer, Golf Village, argues
that the applicable zoning ordinances (which are frozen for fifty years by contract) permit this use,
while the City argues that they don’t. Golf Village’s efforts in the state administrative system and
courts failed because it declined to file an application for a zoning certificate, and the City refused
to issue an official land-use determination without one. So Golf Village filed this § 1983 action
alleging due process violations and seeking declaratory relief.
No. 19-3920, Golf Vill. N. LLC v. City of Powell
The district court granted summary judgment in favor of the City after holding that Golf
Village could not establish a constitutionally protected property interest in developing its land for
use as a hotel. In doing so, the court found that the applicable “Development Plan” limited the
land’s use by implication—that is, it did not include any reference to a hotel, so that use must not
be permitted—and the court also identified two provisions that it interpreted as prohibiting such
use. We disagree. Guided by well-established rules of statutory construction, we conclude that
the Development Plan’s text and structure do not support the district court’s limitation-by-
implication construction. Moreover, we do not read the purported limitations as prohibiting use
of the land as a hotel. We therefore reverse the district court’s judgment and remand for further
proceedings.
I.
A.
Plaintiff Triangle Properties, Inc. has long had ambitious plans for its land holdings in
Delaware County, Ohio, which total over 900 acres. Triangle and its subsidiary, plaintiff Golf
Village North LLC (collectively, “Golf Village”), envisioned a “planned, comprehensive
development” called “Golf Village Community” with “a full complement of residential,
commercial, office[,] and light industrial uses.” The Community would include, among other
things, several types of residential dwellings, a golf course, a “commercial retail center,” and
offices.
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This appeal concerns Golf Village’s plan to build a “residential hotel”1 on two parcels of
vacant land (“permanent parcels 319-314-01-001-011 and 319-314-01-001-012”) that together
comprise about 8.1 acres within “Subarea G” of the Golf Village Community (the “Property”). In
2000, Triangle applied to rezone most of its land in Delaware County. As relevant here, it wanted
to rezone Subarea G from “FR-1” (“Farm Residence District”) to “PC” (“Planned Commercial and
Office District”) and listed in its rezoning application two proposed uses for the land: “commercial
retail center” and “offices.” At the time, the land was located in Liberty Township, which struck
a deal with Triangle. The Township agreed to rezone the land and Triangle agreed to “plan,
develop, and construct the public infrastructure for the Community with private monies.” Liberty
Township approved Triangle’s rezoning applications in February of 2000, as did the Delaware
County Regional Planning Commission. Triangle upheld its end of the bargain as well, putting
“tens of millions of dollars into the infrastructure of the Golf Village Community.”
In addition to the rezoning applications, Triangle submitted a “Development Plan” to
Liberty Township, “setting forth the development standards for the . . . PC Districts within the
Golf Village Community.” The Development Plan described Subarea G as a “community scale
office park.” It also included a “Concept Plan” prepared by a design firm, showing a map of
Subarea G and describing various parcels of land as “Retail,” “Retail/Office,” or “Office/Retail.”2
1
Ohio law defines this term as follows: “‘Residential hotel’ means any structure or
structures consisting of one or more buildings, with more than five dwelling units, that are
specifically constructed and approved through a valid certificate of occupancy issued by the
building official having jurisdiction, as having both dwelling unit features for non-transient
residence purposes and all of the transient residential occupancy features of a transient hotel in
accordance with the residential group R-1 use and occupancy classification adopted by the board
of building standards pursuant to Chapter 3781 of the Revised Code, and that are kept, used,
maintained, advertised, operated as, or held out to the public to be a place where non-transient
dwelling units are offered for pay to persons for a minimum stay of more than thirty days.” Ohio
Rev. Code Ann. § 3731.01(A)(4).
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
The Township’s zoning commission and later its trustees approved the Application and
Development Plan in the summer of 2000. At some point, Triangle assigned ownership of the
Property to Golf Village North.
In 2002, Triangle submitted an application to amend the Development Plan, “requesting
that the sub areas E and G of Golf Village be modified from Planned Office to Planned Office and
Commercial to allow for a mixture of these types of uses.” It’s important to note that this was not
a request to rezone the land. Before and after this amendment, the land remained zoned “PC”
(“Planned Commercial and Office District”).
A development plan, which must be included with a zoning application, limits the uses of
land separately, and on a more granular level. The Zoning Resolution provides that the permissible
uses for PC-zoned land must be “developed in compliance with the approved Development Plan
and standards.”
The Development Plan here (as it appeared in the Amendment Application) included a
section for “specific limitations or controls to be placed on,” among other things, “commercial
uses, operations, locations or types of tenants” for Subarea G. Within that section, it listed the
following under “Types of tenants”:
Retail
Office
Restaurants
Other uses as per code
It also listed seven “restricted uses” for Subarea G:
Auto Body Repair
Storage of wrecked/salvaged vehicles
Enclosed drive through beverage distribution of alcohol & related beverages
Operations involving distribution of paraphernalia for illegal drug use
2
The land on which the Property is located was labeled “Retail.”
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
Operations involving rehabilitation of criminals
Adult oriented stores distributing pornography and sexually oriented products
Operations involving slaughtering of livestock and other animals[.]
The Liberty Township Trustees approved the Amendment Application with two exceptions
relevant here. First, they mandated that, in the “Types of tenants” section, “Other uses as per code”
be changed to “Other uses as per plan.” Second, they mandated that the “restricted uses” section
be renamed “prohibited uses.”
Later in 2002, Triangle, Liberty Township, and the City of Powell, Ohio “began
negotiations for the City’s annexation of the Golf Village Community.” These negotiations
produced two agreements: a “Pre-Annexation Agreement” and a “Cooperative Economic
Development Agreement” (“CEDA”). “[P]ursuant to the Agreements, the City agreed to adopt,
maintain, and administer the existing zoning restrictions - set forth in the [Zoning] Resolution and
the Development Plan as previously adopted by the Township - on the Golf Village Community.”
Also, “Triangle sought and received commitments in the CEDA that the zoning for its property
would apply as long as the CEDA was in effect, which was a fifty-year term. Finally, pursuant to
the CEDA, the City cannot unilaterally change the zoning of property located within the Golf
Village Community.”
B.
Fast forward to May 2013. Golf Village contacted David Betz, the City’s Development
Director, about its plan to build a “residential hotel” on the Property. Nine months later, Betz
responded in an email. He concluded that Golf Village’s proposed use for the Property was “not
specifically permitted by the Golf Village Zoning Plan,” and would amount to a “‘Major
Modification’ to the Township Zoning Plan” under the CEDA. Thus, in Betz’s view, the proposal
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
would “require[ ] the review and approval by both the Liberty Township Trustees and Powell City
Council.”
Golf Village disagreed, and several emails between City officials and Golf Village’s
employees or attorneys followed. At one point, Tre Giller, Triangle’s president, suggested a
“condominium development” as an alternate use, but Betz responded that it would “not fall within
the allowed zoning as outlined in this plan” either. Betz suggested that an independent living
facility for seniors “would work very nicely” on the Property, but Giller responded that “we do not
develop that particular product.” Throughout these exchanges, Betz’s position—that a residential
hotel was not a permitted use under the Zoning Resolution and the Development Plan—remained
consistent.
In 2016, Golf Village, through its counsel, sent a letter to Betz formally requesting approval
to develop the Property as a residential hotel and arguing that “such use is clearly permitted” under
applicable zoning and law. A Concept Plan attached to the letter included illustrations of the
proposed “Residence of Golf Village.” Betz responded, characterizing Golf Village’s letter as a
“request for . . . an advisory opinion” and refusing to issue such an opinion:
[T]he City’s Zoning Code does not establish a process whereby an applicant may
seek an advisory opinion from the Zoning Administrator. Rather, the zoning code
clearly contemplates that an applicant must submit a full and complete application
for a recommendation by staff and review and consideration by the appropriate
boards and commissions.
Betz recommended that Golf Village “prepare an appropriate application for a Zoning Certificate
approval pursuant to the applicable zoning requirements.”
Golf Village did not do so. Instead, it attempted to appeal to the City’s Board of Zoning
Appeals. The City responded through its counsel, stating that “no action will be taken with regard
to your purported Application for Appeal to the Board of Zoning Appeals” because “there is no
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appealable administrative action.” The response concluded thus: “If your client desires to submit
an appropriate application for Zoning Certificate approval pursuant to the applicable Golf Village
zoning requirements, the City would be happy to process such application in due course.”
Golf Village then attempted to appeal the City’s refusal to consider the zoning appeal to
the Delaware County Court of Common Pleas. See Golf Vill. N., LLC v. City of Powell, No. 17
CAH 04 0024, 2018 WL 456217, at *1 (Ohio Ct. App. Jan. 11, 2018). The court dismissed the
appeal for lack of subject-matter jurisdiction, holding that there was no final order from which to
appeal. See id. at *3. The Ohio Court of Appeals affirmed the dismissal, id. at *1, and the Ohio
Supreme Court denied review, Golf Vill. N., L.L.C. v. Powell, 98 N.E.3d 296 (Ohio 2018) (table).
C.
Golf Village filed suit against the City and Betz (collectively, “the City”) in the United
States District Court for the Southern District of Ohio. The amended complaint asserted four
claims under 42 U.S.C. § 1983, alleging violations of the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. It also sought “a declaration that the Proposed
Development is a Permitted Use of the Property.” Defendants filed a motion to dismiss based on
ripeness and Younger abstention, which the district court denied. Golf Vill. N., LLC v. City of
Powell, 338 F. Supp. 3d 700 (S.D. Ohio 2018).
Following discovery, the parties filed cross-motions for summary judgment. The district
court granted the City’s motion and denied Golf Village’s. It held that Golf Village had not
pleaded a substantive due process claim, and, on its procedural due process claim, could not
“establish any dispute of material fact that it has a constitutionally protected property interest in a
residential hotel or a liberty interest in an informal ‘use determination’ or other state procedure.”
Central to this conclusion was the district court’s analysis of the Development Plan. It found that
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
a residential hotel was not a permitted use of the Property because the Development Plan did not
expressly allow such use. The court also interpreted language in the “Types of Tenants” section
and the Concept Plan as limiting Subarea G to “retail” and “office” uses.
The district court rejected the declaratory judgment claim for similar reasons. Finally, the
court opined that the litigation was “really about[ ] obtaining a work-around amendment to the
Development Plan via federal litigation instead of through the Agreements’ amendment
procedures.”3 Golf Village timely appealed.
II.
We review a district court’s summary judgment decision de novo. Parker v. Winwood,
938 F.3d 833, 836 (6th Cir. 2019). Summary judgment is proper “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if the evidence permits a reasonable jury to
return a verdict in favor of the nonmovant, and a fact is “material” if it may affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Viewing the evidence in the
light most favorable to the nonmoving party, our task is to determine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Id. at 251–52.
On appeal, the standards we use to “evaluate motions for summary judgment do not change
when, as here, both parties seek to resolve the case through the vehicle of cross-motions for
summary judgment.” Craig v. Bridges Bros. Trucking LLC, 823 F.3d 382, 387 (6th Cir. 2016)
(brackets, citation, and internal quotation marks omitted). Moreover,
3
The district court also rejected Golf Village’s equal protection and vagueness claims under
§ 1983, but those claims are not at issue in this appeal.
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
[t]he fact that both parties have moved for summary judgment does not mean that
the court must grant judgment as a matter of law for one side or the other; summary
judgment in favor of either party is not proper if disputes remain as to material facts.
Rather, the court must evaluate each party’s motion on its own merits, taking care
in each instance to draw all reasonable inferences against the party whose motion
is under consideration.
Id. (citation omitted). This is not an onerous task here, as the main issue on appeal is a legal one:
the proper interpretation of zoning ordinances.
III.
In its motion for summary judgment, Golf Village argued that the City violated its
substantive due process rights by refusing “to issue a determination in this case” or “acknowledge
the hotel is a permitted use” of the Property. But the district court declined to consider this
argument, stating in a footnote that Golf Village did not plead a substantive due process claim in
its complaint.4
The district court’s action here amounts to a dismissal for failure to state a claim, which
we review de novo. In re Fifth Third Early Access Cash Advance Litig., 925 F.3d 265, 275 (6th
Cir. 2019); see Fed. R. Civ. P. 12(b)(6). “We must construe the complaint in the light most
favorable to the plaintiff and accept all allegations as true.” Keys v. Humana, Inc., 684 F.3d 605,
608 (6th Cir. 2012). “A pleading that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a).
“Specific facts are not necessary; the statement need only give the defendant fair notice of what
the claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007)
4
The district court also stated that, even if it did consider Golf Village’s substantive due
process claim on the merits, it “would fail for the same reason that its procedural due process claim
fails: Golf Village was not deprived of any protected property or liberty interest.”
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
(ellipsis and internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007)).
Golf Village properly pleaded a substantive due process claim in its amended complaint.
Golf Village’s complaint pleaded three separate § 1983 claims based on the Due Process Clause:
Counts One, Two, and Four. None of these claims specified whether they were “substantive” or
“procedural,” but Count Two included the following allegations:
• “Defendants have deprived Golf Village of its property and liberty interests
under color of law without due process . . . .”
• “Golf Village’s property and liberty interests are of a type protected by the
Fifth and Fourteenth Amendments to the United States Constitution[.]”
• “The Zoning Administrator’s and City’s acts were arbitrary, irrational,
[and] capricious[.]”
Compare these statements to the elements of a substantive due process claim “in the context of
zoning regulations”: “(1) a constitutionally protected property or liberty interest exists, and (2) the
constitutionally protected interest has been deprived through arbitrary and capricious action.”
Braun v. Ann Arbor Charter Twp., 519 F.3d 564, 573 (6th Cir. 2008). Combined with the
complaint’s numerous factual allegations, these statements in Count Two sufficiently state a claim
under Rule 8, despite not specifying that the due process claim was “substantive” in nature. “The
Federal Rules of Civil Procedure simply do not require any magic words or recitations to be made
in a complaint.” Knapp v. City of Columbus, 93 F. App’x 718, 720 (6th Cir. 2004).
Moreover, the City demonstrated its awareness of Golf Village’s substantive due process
claim long before Golf Village filed its motion for summary judgment. In a reply brief in support
of its motion to dismiss, the City argued that it “did not violate [Golf Village’s] substantive due
process rights” because Golf Village did not have a “protected property interest.” Then, in its
motion for summary judgment, the City included a long quote from a district court case addressing
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substantive due process claims. See Wedgewood Ltd. P’ship I v. Twp. of Liberty, 456 F. Supp. 2d
904 (S.D. Ohio 2006). These arguments indicate that Golf Village’s complaint put the City “on
notice” of the substantive due process claim. See Brown v. Chapman, 814 F.3d 436, 443 (6th Cir.
2016). Beyond that, the district court itself was aware of Golf Village’s substantive due process
claim. In its order denying the City’s motion to dismiss, the district court mentioned “substantive
due process” three times in its discussion of ripeness. Golf Vill., 338 F. Supp. 3d at 707.
For these reasons, we reverse the district court’s dismissal of Golf Village’s substantive
due process claim.
IV.
The Fourteenth Amendment prohibits states from “depriv[ing] any person of life, liberty,
or property[ ] without due process of law.” U.S. Const. amend. XIV, § 1. “Due process has both
a substantive and a procedural component.” Tollbrook, LLC v. City of Troy, 774 F. App’x 929,
933 (6th Cir. 2019). “Procedural due process is traditionally viewed as the requirement that the
government provide a ‘fair procedure’ when depriving someone of life, liberty, or property;
substantive due process ‘protects individual liberty against certain government actions regardless
of the fairness of the procedures used to implement them.’” EJS Props., LLC v. City of Toledo,
698 F.3d 845, 855 (6th Cir. 2012) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125
(1992)).
Both types of due process claims require that the plaintiff have a constitutionally protected
life, liberty, or property interest. Wedgewood Ltd. P’ship I v. Twp. of Liberty, 610 F.3d 340, 349
(6th Cir. 2010); Braun, 519 F.3d at 573. Golf Village asserts only a property interest on appeal.
“Property interests . . . are not created by the Constitution.” Bd. of Regents of State Colls. v. Roth,
408 U.S. 564, 577 (1972). Instead, “[w]hether a person has a ‘property’ interest is traditionally a
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
question of state law.” EJS Props., 698 F.3d at 855 (citation omitted). “[A] protectable property
interest can arise under Ohio law when a government entity restricts a landowner’s ability to use
his property.” Wedgewood, 610 F.3d at 353 (discussing SuperValu Holdings, Inc. v. Jackson Ctr.
Assocs., LP, Nos. CA2005-09-085, CA2005-09-089, 2006 WL 1843588, at *4 (Ohio Ct. App. July
3, 2006)). Here, Golf Village must show it has a “legitimate claim of entitlement or a justifiable
expectation in the approval of [its building] plan.” Id. at 352 (citation and internal quotation marks
omitted).
A.
Golf Village’s lawsuit in state court failed because it never obtained a final, appealable
decision from the City as to whether it could develop the Property as a residential hotel. The City
argues that Golf Village’s federal lawsuit should fail for the same reason. Fitting this into the
context of the due process claims, the City contends that any property interest Golf Village could
potentially have in developing the Property as a residential hotel has not “vested” because Golf
Village has refused to apply for a zoning certificate. The City relies on general statements of Ohio
law from this court’s decision in Wedgewood:
In Ohio, it is well-established that a landowner’s right to an existing zoning
classification vests upon his submission of an application for a building or zoning
certificate. Gibson v. Oberlin, 167 N.E.2d 651, 654 ([Ohio] 1960). However,
vesting does not occur unless the
property owner has complied with all the legislative requirements
for the procurement of a building permit and his proposed structure
falls within the use classification of the area in which he proposes to
build it, [—if these conditions are met] he has a right to such permit,
and there is a duty on the part of the officer charged therewith to
issue it.
Zaremba Dev. Co. v. Fairview Park, 616 N.E.2d 569, 571 ([Ohio Ct. App.] 1992)
[(per curiam)] (quoting Gibson, 167 N.E.2d at 654).
610 F.3d at 352 (second alteration in original) (parallel citations omitted).
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Ordinarily, the City would be right. “Zoning is not a contract which forecloses its
subsequent amendment.” City of Ann Arbor v. Nw. Park Const. Corp., 280 F.2d 212, 216 (6th Cir.
1960). Zoning ordinances can change on the whims of local governments, so a “justifiable
expectation” of a municipality’s zoning laws staying a certain way typically cannot exist in the
abstract. See Wedgewood, 610 F.3d at 352. Once a zoning application has been filed, however, a
city may not “enact a law retroactively, in an attempt to deny a property owner a right to the use
of his property when the use of that property is in accordance with the law at the time of the
property owner’s application.” Zaremba, 616 N.E.2d at 570–71 (discussing Gibson, 167 N.E.2d
651). In other words, filing a zoning application “freezes” the zoning laws at the time of the
submission.
Here, however, the zoning laws were already frozen. The Pre-Annexation Agreement and
the CEDA provide that the City cannot unilaterally change the zoning of Subarea G for fifty years.
Under Ohio law, “[t]he interests created by contracts are . . . property interests.” EJS Props., 698
F.3d at 857 (citing Joseph Bros. v. Brown, 415 N.E.2d 987, 990 (Ohio Ct. App. 1979)). And Golf
Village contends that a residential hotel is a permitted use of the property pursuant to the zoning
laws frozen by contract here (the Liberty Township Zoning Resolution and the Development Plan).
Thus, Golf Village has a “vested” interest in developing its property within those limitations. Even
the City admitted below that it “does not dispute that Golf Village has a right to use its Property
for all uses permitted by the existing zoning.” And the district court noted that “the
Agreements . . . show that Golf Village has a property interest in using its land for retail or office
purposes.” The real question, however, is whether that interest also includes developing the
Property as a residential hotel.
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B.
Answering this question requires interpreting the Zoning Resolution and the Development
Plan. While the state of the zoning laws here is preserved by contract, the Zoning Resolution itself
originated as a local ordinance passed by the Liberty Township Trustees. The City of Powell
agreed to “adopt” the “Township Zoning Plan” in the CEDA (in addition to agreeing to accept,
incorporate, administer, maintain, and enforce it). Similarly, the Pre-Annexation Agreement states
that the City “agrees to approve the Development Plan” and that “[t]he City Council and the
Planning Commission have each accepted the Development Plan.” These adoptions by the City
make the Zoning Resolution and the Development Plan local ordinances that carry the force of
law, rather than mere contractual terms.
The interpretation of these zoning ordinances is a question of law. Key Ads, Inc. v. Dayton
Bd. of Zoning Appeals, 23 N.E.3d 266, 272 (Ohio Ct. App. 2014); see Kenkel v. Hamilton Cty. Bd.
of Cty. Comm’rs, No. C-010347, 2001 WL 1635770, at *3 (Ohio Ct. App. Dec. 21, 2001) (per
curiam) (discussing a zoning resolution and development plan together and interpreting both as
zoning ordinances). “When a zoning ordinance is unambiguous, a court needs to merely apply the
law as written.” Key Ads, 23 N.E.3d at 272. If it is “subject to various interpretations, a court
called upon to interpret its provisions may invoke rules of statutory construction in order to arrive
at legislative intent.” Id. (quoting Cline v. Ohio Bureau of Motor Vehicles, 573 N.E.2d 77 (Ohio
1991)). “[W]hen terms are not defined in a zoning regulation, a court should consider the common
and ordinary meaning of those terms.” Id.Additionally, the Ohio Supreme Court has made clear that “zoning decisions, whether on
an administrative or judicial level, should be based on the following elementary principles which
underlie real property law”:
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Zoning resolutions are in derogation of the common law and deprive a property
owner of certain uses of his land to which he would otherwise be lawfully entitled.
Therefore, such resolutions are ordinarily construed in favor of the property owner.
Restrictions on the use of real property by ordinance, resolution or statute must be
strictly construed, and the scope of the restrictions cannot be extended to include
limitations not clearly prescribed.
Terry v. Sperry, 956 N.E.2d 276, 279 (Ohio 2011) (quoting Saunders v. Clark Cty. Zoning Dep’t,
421 N.E.2d 152, 154 (Ohio 1981)).5 “In other words,” the Ohio Supreme Court has stated, “we
do not permit zoning ‘limitations by implication.’” Cleveland Clinic Found. v. Cleveland Bd. of
Zoning Appeals, 23 N.E.3d 1161, 1169 (Ohio 2014) (citation omitted).
1.
Starting with the Zoning Resolution, Subarea G is zoned “PC” for “Planned Commercial
and Office District.” The enumerated “permitted uses” for PC-zoned land include the following:
A. Commercial and Office Establishments of all types developed and
maintained within an organized development of associated commercial
activities in accordance with the approved Development Plan.
B. Community Facilities such as libraries, offices or educational facilities
operated by a public agency or government.
C. Commercial Establishments normally associated with and intended to
service the traveling public with motels, service stations, restaurants, travel
trailer parks for overnight parking or any other allied activity.
D. Other Office and Commercial ventures not provided by this or other
sections of this Resolution.
5
It is unclear whether the language of a development plan should, like that of a zoning
resolution, be construed in favor of the property owner. See Saunders, 421 N.E.2d at 154. On the
one hand, development plans are approved by municipalities and place limitations on land use “in
derogation of the common law,” same as other zoning ordinances. Id. On the other hand, the land
developer rather than the municipality is typically the primary drafter. Here, Golf Village does
not argue that the Development Plan should be construed in its favor and we need not resolve the
question in order to decide this case. As explained below, the plain text of the Development Plan
does not prohibit use of the Property as a residential hotel. This is true under a neutral construction
of its land-use limitations (as well as a narrow one).
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According to the City, the Zoning Resolution does not permit a residential hotel to be built
on the Property because that use “is not specifically provided in the Resolution.” The City first
points to Article III, which states that “[w]here a particular use is not specifically provided for in
this Resolution, nor reasonably construed to be included within a use otherwise specifically
provided for, the particular use shall not be permitted.” Similarly, Article XIV, which concerns
PC-zoned land, provides that “[n]o use not specifically authorized by the express terms of this
article of the Zoning Resolution shall be permitted.”
Here, the City focuses on the Zoning Resolution’s limiting language while ignoring its
permissive language. First, there’s the “reasonably construed” language above. Second, the
Resolution specifically permits “motels” “intended to service the traveling public” on PC-zoned
land. Combining these provisions, Golf Village persuasively argues that a “residential hotel”
amounts to a “reasonable constru[ction]” of a “use specifically provided for” in the Resolution:
“motels” “intended to service the traveling public.” Compare Random House Webster’s
Unabridged Dictionary 925 (2d ed. 2001) (defining “hotel” as “a commercial establishment
offering lodging to travelers and sometimes to permanent residents, and often having restaurants,
meeting rooms, stores, etc. that are available to the general public”), with id. at 1253 (defining
“motel” as “a hotel providing travelers with lodging and free parking facilities, typically a roadside
hotel having rooms adjacent to an outside parking area or an urban hotel offering parking within
the building”). Moreover, we must construe the Zoning Resolution’s language in favor of Golf
Village, which further strengthens its argument. Saunders, 421 N.E.2d at 154. Thus, a residential
hotel is a permissible use of PC-zoned land pursuant to the Zoning Resolution.
The City also argues that because the term “residential hotel” “is identified in the Ohio
Revised Code as a residential—not commercial—use,” it is not a permissible use of PC-zoned
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land. This argument is misleading. Ohio Revised Code § 3731.01(A)(4), which defines the term
“residential hotel,” includes the phrase “residential group R-1 use,” but in the context of “building
standards,” not zoning ordinances. In fact, defendant Betz admitted in an email to Golf Village’s
counsel that “[a]lthough the building plan may be rooted within the [Ohio Revised Code] as a
‘residential hotel’, that is a review matter for the Building Department and has no bearing upon
local zoning regulations.” This makes sense, as “zoning . . . power is usually delegated in state
enabling legislation to local levels of government,” and it was here. City of Cleveland v. City of
Brook Park, 893 F. Supp. 742, 751 (N.D. Ohio 1995) (citation omitted); see also Cook-Johnson
Realty Co. v. Bertolini, 239 N.E.2d 80, 84 (Ohio 1968) (“[T]his court has already recognized the
validity of a statutory grant of authority by the General Assembly to township trustees to legislate
as to matters of purely local concern, such as zoning.”).
The City argued for the first time at oral argument that the residential hotel Golf Village
plans to build on the Property is actually an apartment complex. Because an apartment building
is a residential use, the City contends—and the dissent agrees—that it does not fall within the
permitted uses of PC-zoned land. But “a party does not preserve an argument by raising it for the
first time at oral argument.” United States v. Huntington Nat’l Bank, 574 F.3d 329, 331 (6th Cir.
2009). The City forfeited this argument by failing to raise it in its brief on appeal, and we will not
consider it. See Cent. Ohio Coal Co. v. Dir., Office of Workers’ Comp. Programs, 762 F.3d 483,
490 (6th Cir. 2014).
2.
The district court found that whether the Zoning Resolution’s permitted uses for PC-zoned
land include a residential hotel “is irrelevant here” because the Development Plan limits Subarea
G to “a much narrower set of uses.” Under the Zoning Resolution, the permitted uses for PC-
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zoned land must be “developed in compliance with the approved Development Plan and
standards.” A development plan must describe “[t]he general development character of the tract
including . . . [t]he specific limitations or controls to be placed on commercial uses, operations,
locations or types of tenants.” And the Zoning Resolution provides that “[i]n their interpretation
and application, the provisions of this Resolution shall be held to be minimum requirements. . . .
[W]here the provisions of this Resolution are less restrictive, the more restrictive provision of other
laws, rules, regulations or restrictions shall control.”
The district court identified two limitations in the Development Plan that, in its judgment,
precluded use of the Property as a residential hotel. First, it found that the Development Plan
“designates Subarea G as a ‘retail/office site[ ]’” and “does not reference a hotel, let alone a
residential one.” This language appears in the “Concept Plan” Golf Village submitted as an exhibit
to the Development Plan in the 2002 Amendment Application. The Concept Plan is a map showing
the various parcels in Subarea G and describing them as “Retail,” “Retail/Office,” or
“Office/Retail.” The second limitation appears in the section of the Development Plan listing
“specific limitations or controls to be placed on commercial uses, operations, locations or types of
tenants,” among other things. Under “Types of tenants,” it lists “Retail,” “Office,” “Restaurants,”
and “Other uses as per plan.” The district court noted that “[t]hose uses do not include, at least by
the Development Plan’s express terms, a residential hotel.”
Both of these limitations are by implication. Neither one (or any other provision of the
Development Plan, for that matter) specifically prohibits use of the Property as a residential hotel.
And unlike the Zoning Resolution, the Development Plan does not contain a provision stating that
all uses not listed (or reasonably construed to fall within a listed use) are prohibited. This falls in
line with the Zoning Resolution’s requirements for development plans. The Zoning Resolution
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does not state that development plans must specifically list every permitted use. Instead, it
provides that development plans must list “specific limitations or controls to be placed on
commercial uses, operations, locations or types of tenants.” (Emphasis added.) Consistent with
that requirement, the Development Plan here enumerates seven specific “prohibited uses,” none of
which encompasses residential hotels.
To conclude that the Development Plan does not permit use of the Property as a residential
hotel because it does not specifically list that use would violate a basic rule of statutory
construction. “[W]ords in statutes should not be construed to be redundant, nor should any words
be ignored. . . . No part should be treated as superfluous unless that is manifestly required, and the
court should avoid that construction which renders a provision meaningless or inoperative.”
D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 773 N.E.2d 536, 543 (Ohio 2002) (citation and
internal quotation marks omitted). This interpretation would render the “prohibited uses” section
of the Development Plan “meaningless or inoperative.” That is, if the only permitted uses for the
Property were the ones specifically named, then there would be no need to enumerate specific uses
that are not permitted. What’s more, the Zoning Resolution requires that development plans list
“specific limitations,” not “specific permitted uses.” So under the district court’s interpretation,
every development plan drafted in compliance with the Zoning Resolution would have a
superfluous section. That result cannot be correct. Interpreting the Development Plan as allowing
all uses under PC-zoned land, except for those it specifically identifies as “prohibited uses,” is the
better reading. Cf. Fettro v. Rombach Ctr., L.L.C., No. CA2012–07–018, 2013 WL 2423797, at
*3–4 (Ohio Ct. App. June 3, 2013) (finding that a church was a permitted use of a property where
no provision in the parties’ development agreement expressly prohibited churches).
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Against this backdrop, the structure of the Development Plan provides additional evidence
that the “limitations” identified by the district court do not prohibit use of the Property as a
residential hotel. Take the Concept Plan and its labeling of various portions of Subarea G as
“retail,” “office,” or both. The Concept Plan was included as an exhibit to the Development Plan,
and § 14.06(B) of the Development Plan incorporates the Concept Plan by reference. Section
14.06(B)(2), a separate subsection, contains the following heading with language taken from
Zoning Resolution: “specific limitations or controls to be placed on commercial uses, operations,
locations or types of tenants, numbered lots and sizes, approximate location of roads, entry
features, retaining ponds and utility lines, and description of other development features including
landscaping.” The list of “prohibited uses” appears in that subsection. At the end of that
enumerated list, it provides that “[s]pecific limitations or controls to be placed on commercial and
office uses may be found in the Development Standards portion of this text” (and gives some
examples of “[s]pecific issues to be addressed” therein, like “building setbacks” and “side and rear
yards”). Detailed descriptions of “General Development Standards” and “specific statements of
divergence from [other ordinances’] development standards” appear in other sections.
Thus, the Development Plan lists its “specific limitations or controls to be placed on
commercial and office uses” in specific sections labeled as such, and the Concept Plan does not
appear in that section, nor does any reference to it. If Golf Village or the Liberty Township
Trustees had intended for the Concept Plan to limit the use of Subarea G (after choosing not to say
so specifically), they would have included some reference to it in this specific section. Because
they did not, it would be improper to infer such a narrow limitation from it. See Univ. Circle, Inc.
v. City of Cleveland, 383 N.E.2d 139, 141 (Ohio 1978) (“[I]n determining the legislative intent of
an ordinance, the provision to be construed should not be reviewed in isolation. Its meaning should
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be derived from a reading of the provision taken in the context of the entire ordinance.”); see also
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012)
(“[T]he whole-text canon . . . calls on the judicial interpreter to consider the entire text, in view of
its structure and of the physical and logical relation of its many parts.”).
As for the “other uses as per plan” language, the district court interpreted it as “limit[ing]
the permitted uses of the planned commercial properties covered by the Development Plan to a
subset of the broader categories of permitted uses allowed by Section 14.03 of the Township’s
Zoning Resolution.” Unlike the Concept Plan, this language does appear in the “specific
limitations” section of the Development Plan. But within that section, it is included in the list of
“Types of tenants,” along with “Retail,” “Office,” and “Restaurants.” Definitions of “tenant”
include “a person or group that rents and occupies land, a house, an office, or the like, from another
for a period of time; lessee”; “a person who holds or possesses for a time lands, tenements, or
personalty of another, usually for rent”; and “an occupant or inhabitant of any place.” Random
House Webster’s Unabridged Dictionary 1955 (2d ed. 2001); see also Black’s Law Dictionary
1695 (10th ed. 2014) (“Someone who holds or possesses lands or tenements by any kind of right
or title.”).
Golf Village argues that this list was included in the Development Plan “should the
developer decide to rent the property to commercial or office tenants,” and that it “is not a tenant
but [rather] the owner and developer of the Property.” But the ordinary meaning of the word
“tenant” is broader than “an occupant of land who pays rent to the owner.” As a “hold[er] or
possess[or of] lands,” Golf Village qualifies as a tenant. See Kniebbe v. Wade, 118 N.E.2d 833,
836 (Ohio 1954) (referring to co-owners of property as “tenants in common”). And even though
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Golf Village itself is not listed in the “Types of tenants” section, no one in this case argues that
this means Golf Village is not entitled to occupy or use its land in Subarea G.
Meanwhile, the City argues that the “Types of tenants” list provides specific “permitted
uses for the properties in Subarea G,” to the exclusion of all other uses. But the words “tenant”
and “use” are not synonymous. See Black’s Law Dictionary 1775 (10th ed. 2014) (defining “use”
as “[t]he application or employment of something; esp., a long-continued possession and
employment of a thing for the purpose for which it is adapted”). The “prohibited uses” list in the
same section shows that Golf Village and the Liberty Township Trustees knew how to distinguish
between the two terms.
But the “other uses as per plan” language that appears under “Types of tenants” obviously
complicates matters.6 Even if we assume, as the district court did, that the City’s interpretation is
correct though, use of the Property as a residential hotel qualifies as one of the “other uses as per
plan.” The parties seem to agree that the word “plan” here refers to the Development Plan. But
they disagree as to the legal effect of that provision. According to Golf Village, “‘other uses as
per plan’ means ‘other uses as per the Development Plan, a catch-all encompassing all permissible
uses in the PC District under the Resolution for Subarea G.’” The City maintains that this provision
limits the use of the land in Subarea G to the labels found in the Concept Plan. As discussed above,
we have already resolved that issue in Golf Village’s favor. The Concept Plan does not limit the
uses of Subarea G, and the limitations that do appear in the Development Plan do not prohibit the
use of the Property as a residential hotel. We therefore agree with Golf Village’s interpretation of
this provision.
6
The three specific terms that appear under “Types of tenants”—“Retail,” “Office,” and
“Restaurants”—could be fairly interpreted as “uses” or “tenants.”
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Why include this language, then, if all it does is state that all “other uses” permitted by the
Development Plan are permitted by the Development Plan? The drafting history of the document
contextualizes this clunky provision. Recall that the original language here was “other uses as per
code.” The district court noted that this passage could be interpreted as “allowing Golf Village to
develop Subarea G for any permitted purpose enumerated in the Township’s Zoning Resolution.”
In other words, Golf Village could use that language to try to circumvent the specific prohibitions
included in the Development Plan. The Liberty Township Trustees closed this potential loophole
by mandating that “code” be changed to “plan” before it adopted the Development Plan. Thus,
the self-referential nature of the “other uses as per plan” provision was intentional.
C.
We conclude that a residential hotel is a permitted use of the Property pursuant to the
Development Plan and the Liberty Township Zoning Resolution, and that Golf Village has a
constitutionally protected property interest (pursuant to the Pre-Annexation Agreement and the
CEDA) to such use of the Property. Golf Village is thus entitled to judgment as a matter of law as
to the first element of its due process claims, and we reverse the district court’s contrary
conclusion. The district court did not address the remaining elements of either due process claim.
“As a court of review, not of first view, we will remand this case to the district court” to consider
those issues in the first instance. Cavin v. Mich. Dep’t of Corr., 927 F.3d 455, 459 (6th Cir. 2019)
(citation and internal quotation marks omitted).
V.
In its complaint, Golf Village sought “a declaration that the Proposed Development [to
build a residential hotel] is a Permitted Use of the Property.” The district court dispensed with this
claim in short order, “ha[ving] already concluded that there is no dispute of material fact that,
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under the Agreements and Development Plan executed by the parties, Golf Village does not have
a property interest in the use of its land as a residential hotel.” Golf Village’s narrow request is
consistent with the conclusion that it does have property interest in developing the Property as a
residential hotel. Accordingly, we reverse the district court’s grant of summary judgment in the
City’s favor and its denial of summary judgment in Golf Village’s favor on this claim, and remand
with instructions to enter partial summary judgment in favor of Golf Village.
VI.
To summarize, we reverse
• the district court’s dismissal of Golf Village’s substantive due process claim for failure to
state a claim,
• the district court’s grant of the City’s motion for summary judgment as to Golf Village’s
procedural due process and declaratory judgment claims, and
• the district court’s denial of Golf Village’s motion for summary judgment as to the
declaratory judgment and due process claims.
Additionally, we remand
• with instructions to enter partial summary judgment in favor of Golf Village as to its
declaratory judgment claim and as to the first element of its due process claims,
• for consideration of the cross-motions for summary judgment as to the remaining elements
of Golf Village’s due process claims, and
• for further proceedings consistent with this opinion.
It is so ordered.
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
CHAD A. READLER, Circuit Judge, dissenting. As this dispute worked its way
through every level of the Ohio courts, not a single one believed the dispute had properly ripened.
Those courts uniformly agreed that because Golf Village had not obtained a formal threshold local
zoning decision, the matter was not justiciable. Golf Vill. N., LLC v. City of Powell, No. 17 CAH
04 0024, 2018 WL 456217, at *1 (Ohio Ct. App. Jan. 11, 2018), appeal denied, 98 N.E.3d 296(Ohio 2018) (table). Rather than stepping in to resolve a dispute that local regulators and the state
courts agree has not yet matured, I would affirm the district court’s rejection of Golf Village’s
various due process theories.
All agree that Golf Village submitted a development plan designating the parcel in question
as intended for “retail” and “office” use. Golf Village later proposed to build a “residential hotel”
on the property, a structure with many attributes of a traditional apartment building. Given those
residential (rather than commercial) features, the City of Powell’s Director of Development
explained that the proposal did not square with the zoning parameters previously agreed upon. At
the same time, the Director made clear that his determination was not final, and invited Golf
Village to apply for a zoning certificate, a multi-tiered administrative process codified in Powell’s
zoning ordinance. But Golf Village bypassed that formal application process, and instead
challenged the Director’s informal opinion with the Board of Zoning Appeals, then the state courts
(all the way to the Ohio Supreme Court), and now the federal courts.
In the interests of comity and federalism, we enter into local disputes reluctantly, typically
only to vindicate a right guaranteed by the Constitution or laws of the United States. See Pearson
v. City of Grand Blanc, 961 F.2d 1211, 1222 (6th Cir. 1992). To that end, Golf Village purports
to dress its claims in due process clothing. Viewing those claims through that same lens, the
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district court held that Golf Village had not shown a property interest in building a residential hotel
deserving of due process protection.
Had Golf Village properly developed its claims in administrative and state tribunals, this
dispute would be much easier for us to resolve, in the unlikely event it even reached the federal
courts. Without a doubt, the zoning certificate application process would have better informed the
question of whether Golf Village has a vested property interest in building a residential hotel. See
Powell Codified Ordinances § 1135.03(a) (listing fourteen categories of information to be included
in zoning certificate application). Between proceedings before the City’s planning and zoning
commissions, its City Council, and the sister Liberty Township Board of Trustees, Golf Village
would have made a record, articulated its position before local experts, and exhausted the remedies
available. Yet Golf Village short circuited that administrative process. And in that void, it is
difficult to see how Golf Village has established a property interest in building a residential hotel.
That is true whether one looks to the relevant zoning ordinance or to the subsequent development
plan submitted by Golf Village.
Start with the zoning ordinance. Golf Village proposes to build a “residential hotel” to be
known as the “Residence of Golf Village.” Ohio law generally describes a residential hotel as “a
place where non-transient dwelling units are offered for pay to persons for a minimum stay of
more than thirty days.” Ohio Rev. Code Ann. § 3731.01(A)(4) (emphasis added). Despite this
statutory backdrop and the “residential” label attached to the development, Golf Village claims its
proposed use nonetheless qualifies as a “motel” or other “commercial venture” permitted by the
ordinance. True, the ordinance allows for commercial establishments “normally associated with
and intended to service the traveling public with motels, service stations, restaurants, travel trailer
parks for overnight parking or any other allied activity.” But a residential hotel, as a “non-
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
transient” dwelling, would not “normally [be] associated” with the “traveling public.” Members
of the traveling public, rather, frequent “transient” dwellings. Ohio Rev. Code Ann.
§ 3731.01(A)(6) (“‘Transient’ means not more than thirty days.”). Put differently, the traveling
public’s “overnight” accommodations typically do not extend “for a minimum of more than thirty
days,” an unusually long time for a motel to leave the light on for you. See Residential Hotel,
Encyclopedia Britannica, https://www.britannica.com/technology/residential-hotel (last visited
July 16, 2020) (defining “residential hotel” as “basically an apartment building” offering certain
amenities).
Here again, pursuing this dispute through proper channels would have shed light on the
nature of Golf Village’s proposal. What we know at this point is that the residential hotel “will be
advertised in local apartment guides to local clientele.” “[M]ost of the occupants . . . will enter
into an occupancy agreement with a term of twelve (12) months.” And an occupied unit “will
likely be an occupant’s primary address and occupants will be responsible for their own utilities
as well as cable and telephone services.” These features share the hallmarks of an apartment
building more so than a retail store, office, or restaurant—or for that matter, a motel. Indeed, one
can easily distinguish between an overnight motel and an apartment leased for a year or more. Yet
even after years of negotiation, and now litigation, one is still scratching their head over what sort
of structure Golf Village would like to construct, the degree to which it differs from a traditional
motel, and why this proposed use would not more appropriately fall under a residential zoning
category. See Liberty Township, Ohio, Zoning Res. § 5.01 (June 20, 2002) (listing other available
zoning categories, to include the “Neighborhood Apartment District” and the “Planned Residence
District”). Tellingly, Golf Village alternatively proposed to build “either a residential hotel or a
condominium development,” confirming the long-term residential nature of its intended project.
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And I would not fault the City for any uncertainties in these proceedings—factual, legal, or
otherwise—when Golf Village is the master of its vision for the property, and the one that forewent
required administrative steps.
Golf Village fares no better under the development plan it submitted. In the section that
asked for “specific limitations or controls to be placed on commercial uses . . . or types of tenants,”
the plan initially listed “Retail,” “Office,” “Restaurants,” and “other uses as per code.” But the
City rejected the “other uses as per code” language, and the plan was revised to allow for “Retail,”
“Office,” “Restaurants,” and “other uses as per plan.” So even if the zoning ordinance, standing
alone, does not require that the development plan list every use, the “other uses as per plan”
language independently narrows the development plan to only those uses listed. And that “as per
plan” language understandably “complicates matters” for Golf Village, as none of the categories
of permitted uses reference a residential hotel, or anything that could be construed as one.
None of the majority opinion’s rationales overcome this plain reading. One is that a
residential hotel qualifies as an “other use[] as per plan” because the plan allows for any use
permitted by the code, unless specifically excluded. That rationale, however, simply replaces the
phrase “other uses as per plan” with “other uses as per code,” the latter of which the City expressly
struck from the plan.
Another is that the list of permissible development types is placed under “types of tenants,”
not “types of uses.” But the list itself expressly refers to “other uses.” Equally true, the majority
opinion concedes that Golf Village qualifies as a tenant. So whether the plan’s language limits the
types of tenants or the types of uses (or both), it prohibits Golf Village and other tenants from uses
that are not “as per plan.”
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
Yet another is that the “prohibited uses” in the development plan would be superfluous if
only the uses in the plan were permitted. At first blush, one could see why there would be no need
to add exclusions to the plan when the specific uses were the only uses allowed. But there are at
least two other ways to explain the list of exclusions.
One is that they are derived from uses the plan would otherwise permit—that is, retail
establishments, offices, restaurants, or other uses allowed by the plan. In that sense, the plan may
be read as saying that only these plan-specified uses are allowed, with a subset of those permitted
uses in fact also excluded, as they are expressly named exceptions.
A second is that the plan employs a practical “belt-and-suspenders” approach, ensuring
that its terms cannot be interpreted to permit the excluded uses, no matter how these uses might
otherwise be categorized (commercial, retail, etc.). Drafters sometimes include superfluous terms
to make certain that no question remains on a given point. See, e.g., Rimini St., Inc. v. Oracle USA,
Inc., 139 S. Ct. 873, 881 (2019) (“Redundancy is not a silver bullet. . . . Sometimes the better
overall reading of the statute contains some redundancy.”); King v. Burwell, 135 S. Ct. 2480, 2498
(2015) (Scalia, J., dissenting) (“Lawmakers sometimes repeat themselves—whether out of a desire
to add emphasis, a sense of belt-and-suspenders caution, or a lawyerly penchant for doublets (aid
and abet, cease and desist, null and void).”). And it takes little imagination to understand why the
City may have hoped to avoid, in a landmark commercial development, the slaughtering of
livestock and the distribution of sexually oriented products.
In short, under neither the development plan nor the ordinance has Golf Village established
a property interest in developing a residential hotel for purposes of either a substantive or
procedural due process claim. At the very least, it was not arbitrary and capricious for the City
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
not to approve this use without “the benefit of a full and complete application with detailed
information with regard to the proposed [use]”—as the City previously explained to Golf Village.
* * * * *
Even if Golf Village somehow established a property interest in its proposed development,
its failure to seek formal administrative approval further dooms its due process claims. Start with
substantive due process. Golf Village has the burden to show that the City deprived it of its lawful
property interest by means of “arbitrary and capricious action.” Braun v. Ann Arbor Charter
Township, 519 F.3d 564, 573 (6th Cir. 2008). But what was Golf Village denied? The Ohio courts,
remember, concluded that Golf Village never obtained a final decision from the City, as it never
sought (and in turn was never formally denied) a zoning certificate. Yes, the City refused to issue
an informal “use determination.” But it is unclear that a process for doing so even exists, or why
obtaining one would be anything more than a discretionary, non-binding “advisory opinion.” One
would thus be hard pressed to describe the City’s refusal as arbitrary or conscience-shocking
behavior. See EJS Props., LLC v. City of Toledo, 698 F.3d 845,862 (6th Cir. 2012).
Procedural due process fares no better. The City repeatedly invited—and indeed still
invites—Golf Village to follow the required path set out in local law for obtaining a zoning
certificate. See Powell Codified Ordinances § 1135.02 (“ZONING CERIFICATES
REQUIRED. No building, sign or other structure shall hereafter be located, erected, constructed,
reconstructed, moved, enlarged, added to, demolished, structurally altered, nor shall any work be
started on same . . . without a certificate therefor, issued by the Zoning Administrator.”). Yet
despite that formal notice and guidance from the City’s Development Director, Golf Village
forewent its “opportunity to be heard.” See Warren v. City of Athens, 411 F.3d 697, 708 (6th Cir.
2005). That failure fatally flaws its procedural due process claim. Quinn v. Shirey, 293 F.3d 315,
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No. 19-3920, Golf Vill. N. LLC v. City of Powell
321–22 (6th Cir. 2002) (explaining that a procedural due process claim fails where a party fails to
avail itself of adequate process provided by the defendant).
The district court is free to resolve the due process claims against Golf Village on remand.
But I would save it the trouble. I respectfully dissent.
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