METTLER WALLOON LLC V MELROSE TWPAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
METTLER WALLOON, L.L.C.,
October 2, 2008
Charlevoix Circuit Court
LC No. 03-015220-CZ
MELROSE TOWNSHIP, MELROSE
TOWNSHIP PLANNING COMMISSION, and
MELROSE TOWNSHIP ZONING BOARD OF
Advance Sheets Version
Before: Markey, P.J., and Saad, C.J., and Wilder, J.
Plaintiff Mettler Walloon, L.L.C. (Mettler Walloon), appeals as of right the trial court’s
final judgment upon the remaining claims and its decision after trial. The trial court’s orders
decided the pertinent issues in defendants’ favor, finding no cause of action on plaintiff’s
damages claims.1 We affirm.
The principal member of plaintiff is Louis P. Mettler (Mettler). Mettler acquired the
property at issue in various parts in 2002 and 2003. Mettler acquired parcels on Walloon Lake
(lakeside parcels) and parcels across the highway from the lake (dry side parcels). The lakeside
parcels in question were zoned C-3 (village commercial) at all relevant times. The zoning
ordinance states that the village commercial “[d]istrict is intended to provide areas for business
uses that serve the township and that are located in the village area.” Melrose Township Zoning
Ordinance (MTZO), art IV, § 6.6(A). Numerous uses are permitted in the village commercial
The trial concerned the damages claims. Plaintiff’s claim regarding its ability to develop the
subject property was resolved by a partial consent judgment.
zone, including boathouses and wet storage, dry boat storage, marinas, and “[a]partments above
all of the allowed uses[.]” MTZO, art IV, § 6.6(B).
At the time Mettler purchased the initial parcels, he had a marina permit and was
considering using the lakeside parcels for the sale of antique boats. Mettler was also
contemplating boathouses with living spaces above them. Mettler initially planned to develop
his property as a planned unit development (PUD).
In March of 2003 plaintiff entered into a purchase agreement with the Hass brothers for
the acquisition of nine additional parcels, three on the lakefront and six on the opposite side of
the highway. There had been a fire on one of the Hass parcels, and some people encouraged
Mettler to buy the Hass properties. After purchasing the Hass properties, Mettler incorporated
them into the site plan.
Before the purchase of the Hass properties, the plan for the lakeside parcels was to build
two buildings, each in turn with two units (four total), and move an existing building across the
street to be used for restoration of wooden boats. But the acquisition of the Hass properties
doubled the site plan size from two buildings to four with two living units in each (eight total
living units), and then one large boathouse underneath them.
Mettler initially attempted to purchase the Hass properties on land contract. It was
alleged, however, that Mettler’s plan subsequently began to be disfavored. Plaintiff testified at
trial that at that time “there was a definite turn in the direction of the feeling . . . most definitely
by Mr. [Michael] Webster,” the township supervisor.
On March 28, 2003, David Drews, a project manager for Mettler, sent an e-mail to W.
Randolph Frykberg, the township zoning administrator, discussing PUD issues. On March 28,
2003, Frykberg notified Webster of a meeting with Drews to discuss PUD details, but on that
same date, David Drews notified Frykberg that plaintiff would not pursue a PUD, would seek
approval of its development under existing zoning, and was no longer contemplating the sale of
antique wooden boats.
On April 24, 2003, the Melrose Township Zoning Board of Appeals (ZBA) held a
meeting. Among those present were Richard Hermann, the chairman of the planning
commission and a planning commission representative on the ZBA, as well as Frykberg and
township attorney Bryan Graham. Graham stated that the meeting was convened to define the
term “boathouse.” The ZBA acknowledged that a boathouse is a use permitted by right in the C3 zone, and that “boathouse” is not defined in the ordinance. The ZBA interpreted “boathouse”
to mean “a building or shed, usually built partly over water, for sheltering a boat or boats, but
which excludes any residential use.”
On April 29, 2003, Webster removed Hermann from his position on the planning
commission. On May 2, 2003, Mettler submitted a site plan for the lakeside parcels. The plan
proposed marina and boathouses uses. The township directed the site plan to Graham for review.
On May 23, 2003, Graham sent a letter to plaintiff indicating deficiencies in the site plan.
On June 20, 2003, Webster sent an e-mail to Frykberg, with copies to various township
I want to reiterate the importance of having the amendments completed
prior to continuing with any receipt of application or review of the Mettler project
or any large scale project. These types of projects must meet the amended
standards, particularly the “performance guarantee” amendment to protect the
interest of the community.
I realize that delays will frustrate Mr. Mettler and others, but if the policy
has been “no condominiums allowed on the waterfront in the Village” then that is
the policy we must follow until zoning is clarified or changed. I have made it
clear that condominiums under the guise of boathouses was [sic] not appropriate
and that there would be public discontent, but some people just did not want to
listen. I continue to get negative comments and letters in regard to the
I feel that the priority of the Township Board is to remedy any
misunderstandings as to zoning interpretations before proceeding with any large
scale projects such as Mettler’s. Allowing the Zoning Board of Appeals and the
Planning Commission to clearly define the interest of the township will take the
onus of such a momentous decision off of a single individual and place it on
In the long run, having taken deliberate steps to clarify and improve our
zoning ordinance will be best for the community. To expedite matters in the
interest of a developer is shortsighted and is a recipe for disaster. I expect that
you will act accordingly.
At a June 23, 2003, planning commission meeting, Graham recommended zoning
ordinance amendments. Thomas Swenor, the newly elected chairman of the planning
commission, announced a special meeting would be held on July 17, 2003, to conduct a public
hearing on the proposed amendments. Hermann, who was present, questioned the need for a
special meeting, but Frykberg explained that he was expecting a lengthy site plan review at the
next regular meeting and that the amendments should be considered first. Also at the June 23,
2003, planning commission meeting, it was announced that the commission would consider
amending the zoning ordinance to add the word “commercial” in front of “boat houses” in the C3 zone, and that a public hearing would be held at the July 17 special meeting to consider doing
On July 17, 2003, the planning commission held a special meeting, considered zoning
ordinance amendments, and conducted a public hearing. The commission considered the
proposed amendment to add “commercial” before “boathouses and wet storage” in the C-3 zone.
Swenor explained the purpose of the amendment, but commission member Wayne Ramsey
suggested that the amendment was unnecessary because the ordinance already designates C-3 as
a commercial zone. Frykberg indicated that questions and ambiguity were what prompted the
proposal, and that it was requested by the township board. He agreed that the purpose and intent
of the zoning ordinance would be unchanged, but stated that it was being proposed in the interest
of clarity. The commission unanimously passed a motion to recommend acceptance of the
amendment to add “commercial” in front of the phrase “boat houses and wet storage” that are
allowed uses in a C-3 zone.
On July 21, 2003, the ZBA met. Chairman Errol Lee stated that the meeting was a
continuation of the earlier meeting regarding interpretation of the zoning ordinance provisions,
as requested by the township board. A motion was filed, based on findings of fact, to rule that a
boathouse must be commercial to be allowed in a C-1 or C-3 zone. The motion passed.
On July 18, 2003, Mettler’s development plan became available for public view at the
library. On July 28, 2003, the planning commission held a regular meeting. The commission
first dealt with the unfinished business of reviewing Mettler’s preliminary development plan.
The meeting had to be moved to the fire hall to accommodate the additional persons who wanted
to attend. There was substantial public discussion about whether Mettler’s proposed
development was an allowed use in a C-3 zone. There was concern that the duplex concept
would result in the boathouses below being sold or leased on a long-term basis to the upstairs
occupant, effectively eliminating any semblance of a commercial enterprise. When asked for his
definition of a “commercial” use of the proposed buildings, John Turner, plaintiff’s counsel,
repeatedly responded that the terms and conditions of access would be determined by the owner.
Following the close of the public hearing portion of the July 28, 2003, meeting, the commission
deliberated, but was not prepared to decide whether the proposed project was commercial in
nature and adjourned the issue to a meeting on August 1, 2003.
On July 30, 2003, Frykberg provided a memorandum to the planning commission, for
purposes of the August 1, 2003, meeting. Frykberg noted that the site plan included two garages
on the street side of the first floor and two boathouses on the lakeside of the first floor in each of
the four buildings. Frykberg opined that the proposed use of the garages and boathouses “is not,
to me, a commercial use.” Frykberg opined that the proposed use of the garages and boathouses
“does not, to me, meet the purpose of the C-3 Village Commercial” zone, viz., to provide areas
for business uses. Frykberg recommended denial of the site plan:
Because the proposed use of the property for garages and boathouse[s]
does not meet the common or standard utilization of the word commercial, nor
does it meet the intent of the C-3 Village Commercial district, I recommend that
the Planning Commission deny the Site Plan review as presented. This is not to
say that the project, with some modifications, or a re-submittal as a PUD, could
not be approved, just that the present form of the application does not meet the
Ordinance. [Emphasis added.]
On August 1, 2003, the planning commission reconvened. Graham referenced exhibits
made available to members, including two sets of proposed findings of fact. The two sets of
proposed findings of fact were called “option one” and “option two.” The proposed findings of
fact for option one supported a decision not to approve the plan, while the findings of fact for
option two supported a decision to permit the use and allow the review process to proceed to the
next step (actual site plan review). The commission ultimately adopted the findings of fact in
Number 15 of the findings of fact for option one states in relevant part: “the Planning
Commission finds that the long-term rental of a boathouse in close proximity to the apartment
unit is the functional equivalent of the person owning both the apartment condominium unit and
the boathouse condominium unit.” The commission found that merely labeling the boathouses
as commercial uses does not ipso facto make them commercial, and “[b]ased on all of the
information before it, the Planning Commission [found] that the proposed boathouses are not
commercial in nature.” The commission found that the ordinance “does not permit a residential
use as the princip[al] use of property within the C-3 zoning district.” Therefore, the commission
found “that the applicant’s proposed development is not a use allowed by right in the C-3 zoning
After the proposed findings of fact for both options were read, Ramsey opined that “the
currently proposed plan does not meet the definition of a commercial use.” Planning
commission member William Stetson essentially agreed, because “rentals could vary in length
and the condo owners may have first choice at a long-term rental.”
Ramsey moved, seconded by planning commission member Al Reeves, that on the basis
of the findings of fact, the development plan as a use by right in the C-3 zone be denied. After
the motion, additional discussion by members occurred. Ramsey encouraged Mettler to work
with Frykberg to alter the plan to provide an acceptable proposal. He indicated that a PUD
proposal should be explored. Swenor expressed support for the mixed-use PUD idea. Swenor
and Graham noted that the option to apply as a PUD is the applicant’s choice and the township
cannot force it to do so. The commission unanimously passed a motion to deny the development
On September 2, 2003, Mettler filed with the ZBA an appeal of the planning
commission’s rejection of the development plan. On September 23, 2003, Graham prepared a
memorandum noting that the scope of the ZBA’s authority (in considering Mettler’s appeal from
the planning commission’s denial) is limited to considering the evidence presented to the
On October 8, 2003, the ZBA met to consider Mettler’s appeal. Chairman Lee stated that
the ZBA was to review the procedures that the planning commission used to deny the site plan.
Graham added that the ZBA should look at the planning commission’s findings of fact to
determine if the decision was correct, i.e., was the decision supported by the findings of fact.
Frykberg stated that the available documentation was the same as what had been available to the
Turner gave a lengthy presentation. Turner argued that Webster removed Hermann from
the planning commission because Webster thought that Hermann did not share the vision of the
township. Turner argued that this was done to slow down consideration of the application.
Turner disagreed with Graham’s memorandum about the ZBA’s review being limited to the
evidence that was available to the planning commission. Turner argued that Graham could not
“establish the rules at the beginning of a meeting,” and that the ZBA should establish the rules,
not the township’s attorney. Turner argued that there were no findings of fact allowed at the
second commission meeting, no policy was set ahead of time, no public comment was allowed,
and that due process is fundamental. Turner argued that the site plan was not subjected to the
same procedures as other site plans.
Members of the public made various comments. After the public hearing closed, the
ZBA deliberated on the appeal, considering the findings of fact made by the planning
commission. The ZBA affirmed findings of fact 1 through 13, but made no decision on findings
of fact 14 and 15, determining “[t]his needs more work.” The minutes state that “[m]uch
discussion followed on the long and short-term rental issue and Mr. Turner stated he felt there is
no real evidence to substantiate the short term vs. long-term rentals as far as commercial use is
concerned.” The ZBA adjourned to its October 30, 2003, meeting.
On October 30, 2003, the ZBA met. The ZBA discussed and agreed unanimously to only
deliberate on whether the planning commission decision was made properly and to not rehear the
entire planning commission case. The ZBA made 29 findings, including finding that the
planning commission’s conclusion that the proposed development was not commercial in nature
was proper. Accordingly, the ZBA affirmed the planning commission’s decision. Chairman Lee
noted that the applicant had the option of submitting new plans to the planning commission.
Plaintiff then commenced this action, seeking damages as well as authorization to
develop the property. Facilitative mediation resulted in a partial consent judgment, allowing
development to proceed under a revised development plan containing new commercial elements.
The consent judgment requires that the boathouses be available for rent to the general public, and
be rented for periods not longer than two years. The marina’s commercial space (4,000 square
feet) is required to be maintained as commercial in perpetuity. But the partial consent judgment
did not resolve plaintiff’s damages claims.
Defendants filed a dispositive motion concerning the remaining damages claims. The
trial court denied it. The parties then participated in a bench trial regarding the damages claims.
The trial court eventually held that there was no cause of action.
First, plaintiff argues that the trial court applied an incorrect legal standard to its claim
under 42 USC 1983 when it stated that plaintiff failed to prove that township officials had a
pecuniary interest behind their decisions. We disagree.
Following a bench trial, this Court reviews the trial court’s conclusions of law de novo,
and its findings of fact for clear error. Ligon v Detroit, 276 Mich App 120, 124; 739 NW2d 900
(2007) (a taking claim), citing Glen Lake-Crystal River Watershed Riparians v Glen Lake Ass’n,
264 Mich App 523, 531; 695 NW2d 508 (2004). A finding is clearly erroneous if panel
members are left with a definite and firm conviction that a mistake has been made. American
Federation of State, Co & Muni Employees v Bank One, NA, 267 Mich App 281, 283; 705
NW2d 355 (2005).
42 USC 1983 is the all-purpose federal civil rights statute, providing a remedy for
violations of the federal constitution and other federal law. A plaintiff must demonstrate that the
defendants, acting under color of state law, deprived it of a right secured by the constitution or
the laws of the United States. American Manufacturers Mut Ins Co v Sullivan, 526 US 40, 4950; 119 S Ct 977; 143 L Ed 2d 130 (1999). In other words: “Any person who, under color of
state law, deprives another of rights protected by the constitution or laws of the United States, is
liable under 42 USC 1983.” Morden v Grand Traverse Co, 275 Mich App 325, 332; 738 NW2d
278 (2007), citing Monell v Dep’t of Social Services of the City of New York, 436 US 658, 690691; 98 S Ct 2018; 56 L Ed 2d 611 (1978).
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects . . . any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress . . . .
“[I]n any action under § 1983, the first step is to identify the exact contours of the underlying
right said to have been violated.” Co of Sacramento v Lewis, 523 US 833, 841 n 5; 118 S Ct
1708; 140 L Ed 2d 1043 (1998). There must be an underlying violation of the federal
constitution or a federal law, in order for a § 1983 claim to lie. Manuel v Gill, 270 Mich App
355, 374-375; 716 NW2d 291 (2006). Here, plaintiff’s § 1983 count (count IV) asserts that
defendants “deprived Plaintiff of its constitutionally protected rights to substantive due process
and to the reasonable use and enjoyment of its property, as protected by the Michigan and United
Section 1983 does not provide a remedy for a violation of the Michigan Constitution;
rather, there must be an underlying violation of the federal constitution or federal law. Morden,
supra at 332. “By the terms of the statute itself, a section 1983 claim must be based upon a
federal right.” Ahern v O’Donnell, 109 F3d 809, 815 (CA 1, 1997) (emphasis in original).
Therefore, plaintiff’s count IV, insofar as it asserts a § 1983 claim for violation of the Michigan
Constitution, was correctly rejected.
Count IV expressly states a substantive due process claim, but does not expressly state a
procedural due process claim. However, the trial court and defendants essentially consented to
the trial of both a substantive due process claim (pleaded) and a procedural due process claim
(unpleaded). We therefore address both claims.
We first consider the substantive due process claim. The Due Process Clause provides
that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of
law[.]” US Const, Am XIV, § 1. But despite the clause’s reference to process, the United States
Supreme Court has interpreted this clause to “guarantee[ ] more than fair process,” Washington v
Glucksberg, 521 US 702, 719; 117 S Ct 2258; 138 L Ed 2d 772 (1997), and to cover a
substantive sphere as well, “barring certain government actions regardless of the fairness of the
procedures used to implement them,” Co of Sacramento, supra at 840 (internal quotation marks
and citation omitted).
In disputes over municipal actions, the focus is on whether there was egregious or
arbitrary governmental conduct. In City of Cuyahoga Falls, Ohio v Buckeye Community Hope
Foundation, 538 US 188, 198-199; 123 S Ct 1389; 155 L Ed 2d 349 (2003), the Court stated:
[T]he city engineer’s refusal to issue the [building] permits while the
petition [for repeal of a municipal housing ordinance authorizing construction of
the low-income housing complex at issue] was pending in no sense constituted
egregious or arbitrary government conduct. See County of Sacramento v. Lewis,
523 U.S. 833, 846 [118 S Ct 1708; 140 L Ed 2d 1043] (1998) (noting that in our
evaluations of “abusive executive action,” we have held that “only the most
egregious official conduct can be said to be ‘arbitrary in the constitutional
Thus, when evaluating municipal conduct vis-à-vis a substantive due process claim, only the
most egregious official conduct can be said to be arbitrary in the constitutional sense.
To sustain a substantive due process claim against municipal actors, the governmental
conduct must be so arbitrary and capricious as to shock the conscience. In Co of Sacramento,
the parents of a motorcycle rider killed in a high-speed police chase of the motorcycle brought a
§ 1983 claim against the county, the sheriff’s department, and a deputy, alleging deprivation of
the rider’s life without substantive due process. The Supreme Court applied a “shocks the
conscience” standard and held that the court of appeals erred in reversing the district court’s
summary judgment in the deputy’s favor. The Supreme Court’s discussion is worth quoting at
We have emphasized time and again that “[t]he touchstone of due process
is protection of the individual against arbitrary action of government,” Wolff v.
McDonnell, 418 U.S. 539, 558 [94 S Ct 2963; 41 L Ed 2d 935] (1974), whether
the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v.
Shevin, 407 U.S. 67, 82 [92 S Ct 1983; 32 L Ed 2d 556] (1972) (the procedural
due process guarantee protects against “arbitrary takings”), or in the exercise of
power without any reasonable justification in the service of a legitimate
governmental objective, see, e.g., Daniels v. Williams, 474 U.S. [327, 331; 106 S
Ct 662; 88 L Ed 2d 662 (1986)] (the substantive due process guarantee protects
against government power arbitrarily and oppressively exercised). While due
process protection in the substantive sense limits what the government may do in
both its legislative, see, e.g., Griswold v. Connecticut, 381 U.S. 479 [85 S Ct
1678; 14 L Ed 2d 510] (1965), and its executive capacities, see, e.g., Rochin v.
California, 342 U.S. 165 [72 S Ct 205; 96 L Ed 183] (1952), criteria to identify
what is fatally arbitrary differ depending on whether it is legislation or a specific
act of a governmental officer that is at issue.
Our cases dealing with abusive executive action have repeatedly
emphasized that only the most egregious official conduct can be said to be
“arbitrary in the constitutional sense,” Collins v. Harker Heights, 503 U.S. [115,
129, 112 S Ct 1061; 117 L Ed 2d 261 (1992)], thereby recognizing the point made
in different circumstances by Chief Justice Marshall, “‘that it is a constitution we
are expounding,’” Daniels v. Williams, supra, at 332 (quoting McCulloch v.
Maryland, [17 US 316, 407] 4 Wheat. 316, 407 [4 L Ed 579] (1819) (emphasis in
original)). Thus, in Collins v. Harker Heights, for example, we said that the Due
Process Clause was intended to prevent government officials “‘“from abusing
[their] power, or employing it as an instrument of oppression.”’” 503 U.S., at 126
(quoting DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. [189,
196; 109 S Ct 998; 103 L Ed 2d 249 (1989)] in turn quoting Davidson v. Cannon,
474 U.S. [344, 348; 106 S Ct 668; 88 L Ed 2d 677 (1986)]).
To this end, for half a century now we have spoken of the cognizable level
of executive abuse of power as that which shocks the conscience. We first put the
test this way in Rochin v. California, supra, at 172-173, where we found the
forced pumping of a suspect’s stomach enough to offend due process as conduct
“that shocks the conscience” and violates the “decencies of civilized conduct.” In
the intervening years we have repeatedly adhered to Rochin’s benchmark. See,
e.g., Breithaupt v. Abram, 352 U.S. 432, 435 [77 S Ct 408; 1 L Ed 2d 448] (1957)
(reiterating that conduct that “‘shocked the conscience’ and was so ‘brutal’ and
‘offensive’ that it did not comport with traditional ideas of fair play and decency”
would violate substantive due process); Whitley v. Albers, 475 U.S. 312, 327 [106
S Ct 1078; 89 L Ed 2d 251] (1986) (same); United States v. Salerno, 481 U.S.
739, 746 [107 S Ct 2095; 95 L Ed 2d 697] (1987) (“So-called ‘substantive due
process’ prevents the government from engaging in conduct that ‘shocks the
conscience,’ . . . or interferes with rights ‘implicit in the concept of ordered
liberty’”) (quoting Rochin v. California, supra, at 172, and Palko v. Connecticut,
302 U.S. 319, 325-326 [58 S Ct 149; 82 L Ed 288] (1937)). Most recently, in
Collins v. Harker Heights, supra, at 128, we said again that the substantive
component of the Due Process Clause is violated by executive action only when it
“can properly be characterized as arbitrary, or conscience shocking, in a
constitutional sense.” While the measure of what is conscience-shocking is no
calibrated yard stick, it does, as Judge Friendly put it, “point the way.” Johnson v.
Glick, 481 F.2d 1028, 1033 (CA2), cert. denied, 414 U.S. 1033 (1973). [Co of
Sacramento, supra at 845-847 (emphases added).]
Thus, when executive action is challenged in a substantive due process claim, the claimant must
show that the action was so arbitrary (in the constitutional sense) as to shock the conscience.
In Butler v Detroit, 149 Mich App 708, 721-722; 386 NW2d 645 (1986), the plaintiff’s
decedent died in a fatal shooting involving the police, and, in addition to state-law tort claims,
the plaintiff brought a § 1983 claim for deprivation of life without substantive due process. The
jury found in the plaintiff’s favor on all counts and awarded compensatory and punitive damages
on the § 1983 claim. This Court held that the plaintiff failed to adequately prove a substantive
due process violation under the “shocks the conscience” test:
[W]e must then inquire whether plaintiff “proved a case which fits the
other prong of substantive due process—official acts which ‘may not take place
no matter what procedural protections accompany them’”. Wilson v Beebe, 770
F2d  586 [(CA 6, 1985)]. As explained by the Wilson court, there “is a
substantive due process right akin to the ‘fundamental fairness’ concept of
procedural due process”. Id. Applying the “shocks the conscience test” as
described in Wilson v Beebe, supra, to the facts and evidence presented in this
case, we find that the plaintiff had failed to establish a cause of action under 42
USC 1983. The complained-of official conduct does not “shock the conscience”
of this Court nor does it “offend those canons of decency and fairness which
express the notions of justice of English speaking peoples even towards those
charged with the most heinous crimes”. Wilson v Beebe, 770 F2d 586. [Butler,
supra at 721-722 (emphasis added).]
Thus, the shocks-the-conscience test has been applied in Michigan to a substantive due process
claim. Michigan courts have acknowledged that the essence of a substantive due process claim
is the arbitrary deprivation of liberty or property interests. Landon Holdings, Inc v Grattan Twp,
257 Mich App 154, 176; 667 NW2d 93 (2003).
Sundry decisions, both federal and state, including those involving land use planning,
apply the shocks-the-conscience standard. In Mongeau v City of Marlborough, 492 F3d 14 (CA
1, 2007), a developer claimed a deprivation of property without substantive due process. Eugene
Mongeau alleged that Stephen Reid, the city’s commissioner of inspectional services, denied him
a building permit and interfered in the zoning process for improper reasons. Id. at 16. The court
held that the shocks-the-conscience standard applied to the substantive due process claim, and
that the city official’s conduct in opposing the developer’s building permit did not shock the
conscience. The court stated:
If Mongeau believes that the City or Reid has wrongly charged or
demanded too much for his building permit, he may find recourse in other laws,
but not in the substantive component of the Due Process Clause of the Fourteenth
Amendment. Such conduct, without more, cannot be said to transgress “some
basic and fundamental principle . . . [such] that ‘the constitutional line has been
crossed’” and our conscience is shocked. [Id. at 20 (citation omitted).]
In Mitchell v McNeil, 487 F3d 374, 377 (CA 6, 2007), the court stated:
To state a cognizable substantive due process claim, the plaintiff must
allege “conduct intended to injure in some way unjustifiable by any government
interest” and that is “conscience-shocking” in nature. Lewis, 523 U.S. at 849, 118
S.Ct. 1708; see Stemler v. City of Florence, 126 F.3d 856, 869 (6th Cir.1997);
Lewellen v. Metro. Gov’t of Nashville & Davidson County, 34 F.3d 345, 350-51
Mitchell held that the defendants’ municipal policy of allowing police officers to loan their
personal vehicles to informants did not deprive the plaintiffs of liberty without substantive due
process. Id. at 377-378.
In Torromeo v Town of Fremont, New Hampshire, 438 F3d 113 (CA 1, 2006), the court
held that the town’s unjustified delay in issuing previously approved building permits after
enacting a growth control ordinance did not shock the conscience, and thus did not deprive the
plaintiff of property without substantive due process, even though the town did not follow
procedures mandated by state law in enacting the ordinance. Torromeo is worth quoting at
. . . We recently explained the limits on substantive due process claims
arising from land-use disputes:
“This Court has repeatedly held that rejections of development projects
and refusals to issue building permits do not ordinarily implicate substantive due
process. Even where state officials have allegedly violated state law or
administrative procedures, such violations do not ordinarily rise to the level of a
constitutional deprivation. The doctrine of substantive due process does not
protect individuals from all governmental actions that infringe liberty or injure
property in violation of some law. Rather, substantive due process prevents
governmental power from being used for purposes of oppression, or abuse of
government power that shocks the conscience, or action that is legally irrational in
that it is not sufficiently keyed to any legitimate state interest. Although we have
the left door [sic] slightly ajar for federal relief in truly horrendous situations, the
threshold for establishing the requisite abuse of government power is a high one
SFW Arecibo Ltd. v. Rodríguez, 415 F.3d 135, 141 (1st Cir.2005) (internal
In Arecibo, real estate developers sued after a state planning board
incorrectly determined that their building permit had expired. Id. at 137. When
suit was filed, the state court had already determined that the permit had been
wrongly revoked. Id. at 138. We affirmed the dismissal of the substantive due
process claim because the complaint stated “[i]n its strongest form . . . that the
[p]lanning board made an erroneous decision in violation of state law,” which is
insufficient to establish a substantive due process violation. Id. at 141. So too
here. Plaintiffs allege that the Town violated substantive due process by enacting
the growth control ordinance without following the procedures mandated by New
Hampshire law. But, as in Arecibo, the claim is only that the Town’s violation of
state law caused Plaintiffs harm. This is not enough. See id. at 141; see also
Licari v. Ferruzzi, 22 F.3d 344, 349 (1st Cir.1994) (affirming dismissal of
substantive due process claim based on allegations that a town planning board
improperly revoked the developer’s building permits and delayed processing and
approval of an application for an amended permit); PFZ Properties, Inc. v.
Rodríguez, 928 F.2d 28, 32 (1st Cir.1991) (affirming dismissal of substantive due
process claim where developer alleged that government agency failed to comply
with agency regulations or practices in the review and approval process of
construction plans). [Torromeo, supra at 118 (emphasis added).]
Thus, under federal law, even a violation of state law in the land use planning process does not
amount to a federal substantive due process violation.
In Koscielski v City of Minneapolis, 435 F3d 898 (CA 8, 2006), the court held that the
plaintiffs, operators of a firearms dealership, failed to show that a city zoning ordinance
restricting where firearms dealerships could operate was so irrational and egregious as to shock
the conscience, so as to violate their substantive due process rights, where there were vacant lots
meeting the requirements of the zoning ordinance. The court stated:
Due process claims involving local land use decisions must demonstrate
the “government action complained of is truly irrational, that is something more
than . . . arbitrary, capricious, or in violation of state law.” Anderson v. Douglas
County, 4 F.3d 574, 577 (8th Cir.1993) (internal quotation omitted). The action
must therefore be so egregious or extraordinary as to shock the conscience. See
County of Sacramento v. Lewis, 523 U.S. 833, 846-47, 118 S.Ct. 1708, 140
L.Ed.2d 1043 (1998); Burton v. Richmond, 370 F.3d 723, 729 (8th Cir.2004).
[Koscielski, supra at 902 (emphasis added).]
In United Artists Theatre Circuit, Inc v Twp of Warrington, PA, 316 F3d 392 (CA 3,
2003), Judge (now Justice) Samuel A. Alito held that the proper standard for evaluating the
substantive due process claim was whether the supervisors’ actions (allegedly delaying approval
of a proposed theater development so that the township could obtain an impact fee offered by a
competing developer) shocked the conscience.
In Co Concrete Corp v Roxbury Twp, 442 F3d 159, 170 (CA 3, 2006), the plaintiffs
argued that the township impeded their efforts to expand their sand and gravel extraction
business “through false accusations, verbal disparagement and the imposition of illegal
conditions and restrictions on their business in violation [of] a 1993 agreement.” It was allegedly
“[o]n the heels” of this animus between the appellants and the township that the township
enacted an ordinance rezoning the plaintiffs’ land from industrial to rural residential or open
space. Id. The plaintiffs alleged that the only motivation for enacting an ordinance was to
rezone the plaintiffs’ property, constituting an improper use of the zoning authority. The land
had been zoned industrial for almost 50 years, and the rezoning action was alleged to have been
taken with the knowledge that it would violate the plaintiffs’ legal and contractual rights, and
with the desire to prevent the plaintiffs from operating their business. Id. The United States
Court of Appeals for the Third Circuit concluded that the plaintiffs had sufficiently alleged a
claim of substantive due process violations providing that they “‘had the right to be free from
harassment in [its] land development efforts.’” Id. (citation omitted). However, Co Concrete
Corp relied on Blanche Road Corp v Bensalem Twp, 57 F3d 253, 258 (CA 3, 1995), which
applied a lower standard than the “shocks the conscience” test and was abrogated on that ground.
United Artists Theatre Circuit, Inc, supra at 400 (holding that Blanche Road Corp applied the
“improper motive” test and, therefore, could not be reconciled with the “shock the conscience”
test applied in Lewis, supra at 847).
In Uhlrig v Harder, 64 F3d 567, 573 (CA 10, 1995), the panel noted that “the standard
for judging a substantive due process claim is whether the challenged government action would
shock the conscience of . . . judges.” (Internal quotation marks and citations omitted.) The panel
[T]o satisfy the “shock the conscience” standard, a plaintiff must do more
than show that the government actor intentionally or recklessly caused injury to
the plaintiff by abusing or misusing government power. That is, the plaintiff must
demonstrate a degree of outrageousness and a magnitude of potential or actual
harm that is truly conscience shocking. The level of conduct required to satisfy
this additional requirement cannot precisely be defined, but must necessarily
evolve over time from judgments as to the constitutionality of specific
government conduct. We do know, however, that the “shock the conscience”
standard requires a high level of outrageousness, because the Supreme Court has
specifically admonished that a substantive due process violation requires more
than an ordinary tort . . . . [Id. at 574, citing Collins v City of Harker Hts, Texas,
503 US 115, 128; 112 S Ct 1061; 117 L Ed 2d 261 (1992).]
“The Due Process Clause ‘is not a guarantee against incorrect or ill-advised [governmental]
decisions.’” Collins, supra at 129 (citation omitted).2
It is also worth noting that even a violation of state law relating to land use planning (such as a
supervisor’s discharging a planning commission member without approval from the township
board of trustees) does not necessarily constitute a substantive due process violation. In
Eichenlaub v Indiana Twp, 385 F3d 274 (CA 3, 2004), the plaintiffs asserted that zoning officials
refused certain permits and approvals and applied unnecessary enforcement actions and
subdivision requirements to the plaintiffs’ property that were not applied to other parcels. The
plaintiffs alleged that “zoning officials applied subdivision requirements to their property that
were not applied to other parcels; that they pursued unannounced and unnecessary inspection and
enforcement actions; that they delayed certain permits and approvals; that they improperly
increased tax assessments; and that they maligned and muzzled the Eichenlaubs.” Id. at 286.
The panel noted that such complaints were “examples of the kind of disagreement that is
frequent in planning disputes.” Id. The panel distinguished a zoning dispute with the kind of
gross misconduct that would shock the conscience as cases involving claims of unconstitutional
taking without just compensation or an improper seizure in violation of the fourth amendment.
Id. at 285, citing Conroe Creosoting Co v Montgomery Co, 249 F3d 337, 340 (CA 5, 2001)
(allegation that “officials fraudulently converted a tax levy for a $75,000 deficiency into an
unauthorized seizure and forced sale and destruction of an $800,000 ongoing business”).
In Eichenlaub, Judge Michael Chertoff wrote: “[E]very appeal by a disappointed
developer from an adverse ruling of the local planning board involves some claim of abuse of
legal authority, but it is not enough simply to give these state law claims constitutional labels
such as ‘due process’ or ‘equal protection’ in order to raise a substantial federal question under
section 1983.” Eichenlaub supra at 286, quoting United Artists Theatre Circuit, Inc, supra at
402, quoting Creative Environments, Inc [680 F 2d 822, 833 (CA 1, 1982)] (some internal
There are decisions from sister states applying the “shocks the conscience” test to land
use planning disputes. In Plemmons v Blue Chip Ins Services, Inc, 387 NJ Super 551; 904 A2d
825 (2006), the court held that actions by Shirley Himmelman, the chairperson of the borough of
Audubon’s zoning and planning board, and by the borough secretary that delayed the plaintiff’s
(a property owner’s) efforts to convert property from residential to commercial uses did not
constitute “egregious official conduct” that “shocked the conscience,” id. at 569, and thus the
plaintiff did not have a substantive due process claim under § 1983 against such officials for
damages that occurred to the property as a result of a storm and construction delays.
Himmelman had only notified Robert Scouler, the borough inspector, that the owner was
apparently engaged in unlawful construction work. There was no evidence that the board’s delay
in approving the site plan departed from its general practice, or that the owner demanded timely
quotation marks omitted).
In PFZ Properties, Inc v Rodriguez, 928 F2d 28, 32 (CA 1, 1991), the United States
Court of Appeals for the First Circuit rejected a substantive due process claim arising from land
use planning, after construction plans for a residential and tourist project in Puerto Rico were
denied. The court stated:
This Court has repeatedly held . . . that rejections of development projects
and refusals to issue building permits do not ordinarily implicate substantive due
process. Even where state officials have allegedly violated state law or
administrative procedures, such violations do not ordinarily rise to the level of a
constitutional deprivation. The doctrine of substantive due process “does not
protect individuals from all [governmental] actions that infringe liberty or injure
property in violation of some law. Rather, substantive due process prevents
‘governmental power from being used for purposes of oppression,’ or ‘abuse of
government power that shocks the conscience,’ or ‘action that is legally irrational
in that it is not sufficiently keyed to any legitimate state interests.’” [Id. at 31-32
The panel further reasoned:
[W]e hold that PFZ’s allegations that ARPE [Regulations and Permits
Authority of the Commonwealth of Puerto Rico] officials failed to comply with
agency regulations or practices in the review and approval process for the
construction drawings are not sufficient to support a substantive due process
claim under the Fourteenth Amendment to the United States Constitution. See
Amsden v. Moran, 904 F.2d 748, 757 (1st Cir.1990) (noting that “even bad faith
violations of state law are not necessarily tantamount to unconstitutional
deprivations of due process”), cert. denied,  U.S. , 111 S.Ct. 713, 112
L.Ed.2d 702 (1991). Even assuming that ARPE engaged in delaying tactics and
refused to issue permits for the Vacia Talega project based on considerations
outside the scope of its jurisdiction under Puerto Rico law, such practices, without
more, do not rise to the level of violations of the federal constitution under a
substantive due process label. [Emphasis added.]
issuance of a resolution memorializing the site plan approval. When Claire Remenicky,
Scouler’s secretary, failed to provide the owner with a new construction permit application, she
was only complying with Scouler’s directions, and there was no evidence that Remenicky was
aware that Scouler was pursuing some nefarious objective. The appellate court affirmed the trial
court’s summary judgment for the municipal defendants (the borough, Himmelman, and
Remenicky). Plemmons acknowledged that “[t]he [federal] Courts of Appeals have routinely
utilized the “shocks the conscience” test in reviewing claims that the actions of officials
responsible for passing upon land use and other related applications were so egregiously
arbitrary that they violated a property owner’s substantive due process rights.” Plemmons, supra
It is worth noting that a developer does not always have a protected property interest in a
particular outcome of land use planning.3 As indicated in Aegis of Arizona, LLC v The Town of
Marana, 206 Ariz 557, 568-569; 81 P3d 1016 (Ariz App, 2003), there must be a reasonable
expectation of entitlement:
“A threshold requirement to a substantive or procedural due process claim
is the plaintiff’s showing of a liberty or property interest protected by the
Constitution.” Wedges/Ledges of California, Inc. v. City of Phoenix, 24 F.3d 56,
62 (9th Cir.1994). “A protected property interest is present where an individual
has a reasonable expectation of entitlement deriving from ‘existing rules or
understandings that stem from an independent source such as state law.’” Id.,
quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L. Ed.
2d 548, 561 (1972).
Again, because only Marana’s final decision denying the CUP
[conditional use permit] application was subject to review in connection with
Aegis’s substantive due process claim, it is clear that Aegis could not have had a “
reasonable expectation of entitlement” to have the CUP application granted.
Although [Joel] Shapiro [Marana’s then-acting planning director] supported the
CUP application and recommended its approval, no evidence in the record shows
that anyone on either the Planning and Zoning Commission or town council had
told Aegis that the CUP application would be approved. Thus, once the
application for the CUP was submitted, Aegis was subject to the inherently
unpredictable and often politicized process of seeking permission from a local
legislative body to conduct certain activity on a piece of property. In short, Aegis
had no protected property interest in having its CUP application granted.
RRI Realty Corp v Incorporated Village of Southampton, 870 F2d 911 (CA 2, 1989) (the
developer did not have a property interest protected by substantive due process in a building
permit for the second stage of its mansion renovation project, because the local regulating body
had discretion to deny such a permit).
Aegis of Arizona, LLC, id. at 569, next considered the substantive due process claim
under the “shocks the conscience” standard:
Moreover, even if we assume, arguendo, that Aegis did have a protectable
interest in the granting of the CUP, its substantive due process claim still fails.
After determining that a party has a protectable property interest, the issue
becomes, in the context of a § 1983 suit, whether any deprivation of that interest
resulted from an abuse of governmental power of sufficient degree to be deemed a
constitutional violation. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,
1577 (11th Cir.1989). In order to show a substantive due process violation, the
abuse of governmental power must be one that “shocks the conscience.” United
Artists Theatre Circuit, Inc. v. Township of Warrington, 316 F. 3d 392, 401 (3rd
Cir. 2003) (holding that in the land-use context, substantive due process is
violated only when government action “shocks the conscience”); cf. County of
Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (in
context of search and seizure, substantive due process is violated only when the
government’s action shocks the conscience in a constitutional sense); Eller Media
Co. v. City of Tucson, 198 Ariz. 127, ¶ 6, 7 P.3d 136, ¶ 6 (App.2000) ([in case in
which billboard company sought to enjoin city from enforcing outdoor lighting
code prohibition against bottom-mounted illumination of billboards, alleging a
valid nonconforming use and substantive due process violation] noting that
substantive due process “precludes government conduct that shocks the
conscience”); Martin v. Reinstein, 195 Ariz. 293, ¶ 66, 987 P.2d 779, ¶ 66 (App.
1999) (applying “shocks the conscience” standard in context of substantive due
process claim challenging application of Sexually Violent Persons Act).
Aegis of Arizona, LLC, held that the trial court did not err in denying the plaintiff’s motion for
judgment as a matter of law.
California also applies the “shocks the conscience” standard. In Clark v City of Hermosa
Beach, 48 Cal App 4th 1152, 1186; 56 Cal Rptr 2d 223 (1996), the court concluded that the
developer did not have a protected property interest in the development project permits in
question. The court also held that the city’s action in allowing a particular council member with
a conflict of interest to participate was not irrational or conscience-shocking:
In this case, regardless of whether the City Council’s decision was proper
under state law, we cannot say that its conduct, for due process purposes, was
arbitrary or oppressive or that it “shocks the conscience.” Although we have
concluded that Councilmember [Robert] Benz had a conflict of interest in voting
on the project, the city attorney advised the Council at the public hearing that
there was no conflict. That advice was incorrect, but it was not irrational. In light
of the city attorney’s opinion, the Council did not act irrationally by allowing
Benz to participate in the proceedings. [Id. at 1186.]
Clark further held: “the Council erred in considering and deciding issues raised for the first time
after the public hearing was over. Further, it may have misconstrued or misapplied the
provisions of the zoning ordinance concerning lot coverage and usable open space. Nonetheless,
the Council’s ultimate decision to deny the permits did not lack a rational basis.” Id.
Massachusetts is deferential toward local land use planning bodies. In K Hovnanian at
Taunton, Inc v City of Taunton, 37 Mass App Ct 639, 647; 642 NE2d 1044 (1994), the court
Had Hovnanian asserted a specific property interest under State law, any
arbitrary misapplication of that law reflected by the denial of the tie-in
nevertheless does not involve procedural or substantive due process rights.
Rosenfeld v. Board of Health of Chilmark [27 Mass App Ct 621, 627-628; 541
NE2d 375 (1989)]. “[T]he ordinary state administrative proceeding involving
land use or zoning does not present [a violation of a Federal constitutional right],
regardless of how disappointed the license or privilege seeker may feel at being . .
. turned down.” Id. at 628, 541 N.E.2d 375, quoting from Creative Envts. . . . See
Bobrowski, Handbook of Massachusetts Land Use & Planning Law § 2.6.1 at 77
(1993 & Supp.1994) (“The Creative Environments holding has led, in the First
Circuit, to a long line of land use decisions rejecting the use of § 1983 actions.”[)]
Moreover, we are not involved here with corrupt or egregious conduct that so
shocks the conscience as to give rise to a due process claim. See Raskiewicz v.
Town of New Boston, 754 F.2d 38, 44 (1st Cir.), cert. denied . . . .
Rosenfeld v. Board of Health of Chilmark [27 Mass App Ct 621, 628; 541 NE2d
K Hovnanian at Taunton, Inc, supra at 648, also noted that the developer had no constitutionally
protected property interest in the approval of a subdivision plan:
Hovnanian’s claim of a right to approval of its subdivision plan is
similarly unavailing. This court held in K. Hovnanian at Taunton, Inc. v.
Planning Bd. of Taunton, 32 Mass.App.Ct.  485-486, 590 N.E.2d 1172
, that the decision of the Taunton planning board to reject Hovnanian’s
subdivision plan was correct given the failure of the plan to comply with the
board’s regulations and the absence of approval by the Taunton board of health
based upon the unavailability of a sewer tie-in. It is significant that with respect
to the absence of the Taunton board of health approval, this court, in effect,
indicated that administrative discretion was not involved. We concluded that “the
planning board had no choice but to disapprove the plans....” Id. at 486, 590
N.E.2d 1172. In any event, no “property” interest is involved in the approval of a
subdivision plan. Cote v. Seaman, 625 F.2d 1, 2 (1st Cir.1980). Rosenfeld v.
Board of Health of Chilmark, supra 27 Mass.App.Ct. at 627, 541 N.E.2d 375.
The existence of such an interest is “a necessary prerequisite to a fourteenth
amendment due process claim.” Cote v. Seaman, supra at 2.
Pennsylvania also gives deference to local planning officials. In Anselma Station, Ltd v
Pennoni Assoc, Inc, 654 A2d 608, 614-615 (Pa Commw Ct, 1995), the defendants were township
engineers who advised the township to delay development of a site until pollution could be
remediated. The court applied the “shocks the conscience” standard.
Here, plaintiff has not presented evidence of any conduct by township officials that is so
outrageous or arbitrary as to shock the conscience. Rather, the evidence indicated conduct
intended to further the legitimate land use planning interests of the township (maintaining the
integrity of the commercial zone in the village, and furthering the vitality of the village’s
commercial center). Therefore, the trial court did not err in rejecting the substantive due process
Next we consider the procedural due process claim. Plaintiff argues that the trial court
applied an incorrect legal standard when it held that plaintiff had failed to prove that Webster had
a personal pecuniary interest in the outcome of the township’s land use planning proceedings.
Procedural due process serves as a limitation on governmental action and requires a
government to institute safeguards in proceedings that might result in a deprivation of life,
liberty, or property. Kampf v Kampf, 237 Mich App 377, 382; 603 NW2d 295 (1999).
Procedural due process generally requires notice, see In re Nunn, 168 Mich App 203, 208-209;
423 NW2d 619 (1988), an opportunity to be heard, Traxler v Ford Motor Co, 227 Mich App
276, 288; 576 NW2d 398 (1998), before an impartial trier of fact, Newsome v Batavia Local
School Dist, 842 F2d 920, 927 (CA 6, 1988), and a written, although relatively informal,
statement of findings, Verbison v Auto Club Ins Ass’n, 201 Mich App 635, 641; 506 NW2d 920
(1993). In other words, procedural due process requires that a party be provided notice of the
nature of the proceedings and an opportunity to be heard by an impartial decision maker at a
meaningful time and in a meaningful manner. Reed v Reed, 265 Mich App 131, 159; 693 NW2d
Logically, where a governmental actor has a personal pecuniary interest in the outcome
of proceedings, he might not be an impartial decision maker. See, e.g., Connally v Georgia, 429
US 245; 97 S Ct 546; 50 L Ed 2d 444 (1977) (due process violated when a justice of the peace
personally received $5 for each search warrant he issued, collected nothing when he denied a
warrant, and had no other salary); Gibson v Berryhill, 411 US 564; 93 S Ct 1689; 36 L Ed 2d 488
Similarly here, it might be said that plaintiff did not have a reasonable expectation of
entitlement to plan approval, where the site planning documents (such as the master deed) did not
provide for a commercial use (a use of right), but more of a residential use.
(1973) (due process violated when members of a board with the power to bar optometrists from
practice had their own private practices in competition with those who came before the board);
compare Alpha Epsilon Phi Tau Chapter Housing Ass’n v City of Berkeley, 114 F3d 840, 845
(CA 9, 1997) (Byron R. White, retired associate justice of the United States Supreme Court,
sitting by designation, held that a rent board’s dual role as adjudicator and as executive body
funded by its own registration fees did not render it a biased decision maker so as to violate due
In DeBlasio v Zoning Bd of Adjustment for Twp of West Amwell, 53 F3d 592 (CA 3,
1995), overruled on other grounds by United Artists Theatre Circuit, Inc v Twp of Warrington,
Pennsylvania, 316 F3d 392, 400 (CA 3, 2003), the court held that New Jersey provided full
judicial process for challenging adverse zoning decisions, thus precluding relief on a
landowner’s procedural due process claim, but a genuine issue of material fact existed regarding
whether the ZBA’s decisions were influenced by the ZBA secretary’s personal financial interest
in resolution of the landowner’s zoning problems. See also Spokane Co Legal Services, Inc v
Legal Services Corp, 614 F2d 662 (CA 9, 1980) (the plaintiffs were not denied procedural due
process in the action taken by the Legal Services Corporation to terminate financial support for
their programs, even though the Legal Services Corporation appointed the special assistant to its
president to conduct the hearing on the proposed transfer of funding; there was no suggestion
that the hearing examiner had any personal bias or animosity against the plaintiffs or had a
pecuniary interest in the controversy, and the appointment of a Legal Services Corporation
employee to conduct the hearing was specifically authorized by federal regulation).
In light of the fact that having a personal pecuniary interest in the outcome of the land use
planning proceedings would indicate a lack of an objective decision maker, it was logical for the
trial court to conclude that not having such an interest (and not being motivated by such an
interest) would point to the existence of an objective decision maker, and to the lack of merit of a
procedural due process claim. Accordingly, it was not erroneous for the trial court to use, as part
of its ratio decidendi in resolving that claim, the factual finding that plaintiff failed to prove that
Webster had a personal pecuniary interest in the outcome of the planning process.
Next, plaintiff argues that the trial court erred when it held that the township officials’
actions that the trial court found were wrongful were excused for purposes of 42 USC 1983
because the trial court believed that such officials acted in a way that they may have perceived to
be in the best interest of the township. We disagree.
Following a bench trial, this Court reviews the trial court’s conclusions of law de novo,
and its findings of fact for clear error. Ligon, supra at 124. Questions of law are reviewed de
novo. Morden, supra at 340.
Plaintiff argues that the township officials’ actions are attributable to the township
because the actions were taken pursuant to a custom or policy of the township or under color of
law, citing Monell, supra at 690. This argument lacks merit.
Plaintiff’s argument regarding attribution is beside the point. The trial court never
concluded that the township officials’ actions were not attributable to the township. The trial
court simply used, as part of its reasoning for denying parts of the procedural due process claim,
its conclusions of fact (1) that Webster did not have a personal pecuniary interest in the outcome
of the land use planning proceedings and (2) that Webster’s conduct was not motivated by
personal pecuniary interest. Plaintiff does not challenge these conclusions of fact on appeal;
therefore, they must be accepted.
The only authority cited by plaintiff, Monell, does not show that the trial court erred as a
matter of law by considering as relevant its findings regarding Webster’s lack of personal
pecuniary interest and lack of motive to further a personal pecuniary interest. Therefore, no error
can be found under this issue on appeal.
Next plaintiff argues that the trial court erred by reviewing, for purposes of the § 1983
claim, only selected instances of conduct from the evidence presented at trial and then viewing
those limited instances in isolation. We disagree.
In this argument section, plaintiff argues that the trial court reached an erroneous factual
conclusion regarding all its remaining claims. But plaintiff does not identify the allegedly
erroneous factual conclusion. Also, plaintiff fails to argue that any factual finding by the trial
court was clearly erroneous. Therefore, the trial court’s factual findings must be accepted.
Plaintiff argues that the trial court addressed only limited instances of the defendants’
actions in isolation, citing Bynum v ESAB Group, Inc, 467 Mich 280; 651 NW2d 383 (2002), for
the proposition that the record should have been viewed as a whole. Plaintiff argues in this
section that Webster acted improperly in terminating Hermann as the planning commission
chairman. This argument lacks merit.
The trial court found that although Webster acted improperly in terminating Hermann as
a planning commission member, “plaintiff has failed to meet its burden of proof that Mr.
Hermann’s departure proximately caused the result it complains of,” pointing out that the
planning commission’s vote against plaintiff’s development was five to zero, and that the ZBA’s
relevant vote was also five to zero. This conclusion is sound.
Proximate cause is an essential element of a § 1983 claim. Morden, supra at 335
(“Plaintiff’s theory of causation is also insufficient as a matter of law to establish the requisite
proximate cause for a § 1983 claim.”), citing Horn v Madison Co Fiscal Court, 22 F3d 653, 659
(CA 6, 1994) (“proximate causation is an essential element of a § 1983 claim for damages”).
Proximate cause has, in turn, two components. “‘Proximate cause’ is a legal term of art that
incorporates both cause in fact and legal (or ‘proximate’) cause.” Craig v Oakwood Hosp 471
Mich 67, 86; 684 NW2d 296 (2004). Cause in fact requires the plaintiff to show that but for the
defendant’s actions, the injury would not have occurred, while legal or proximate cause normally
involves examining the foreseeability of consequences. Id. at 86-87. Cause in fact requires more
than a possibility of causation:
It is important to bear in mind that a plaintiff cannot satisfy this burden by
showing only that the defendant may have caused his injuries. Our case law
requires more than a mere possibility or a plausible explanation. Rather, a
plaintiff establishes that the defendant’s conduct was a cause in fact of his injuries
only if he sets forth specific facts that would support a reasonable inference of a
logical sequence of cause and effect. A valid theory of causation, therefore, must
be based on facts in evidence. And while the evidence need not negate all other
possible causes, . . . [it must] exclude other reasonable hypotheses with a fair
amount of certainty. [Id. at 87-88 (emphasis in original; internal quotation marks
and brackets omitted).]
Speculation in proving causation is prohibited, e.g., Skinner v Square D Co, 445 Mich
153, 166, 516 NW2d 475 (1994); Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 524-525;
687 NW2d 143 (2004), even on a statutory claim, McManamon v Redford Charter Twp, 273
Mich App 131, 139; 730 NW2d 757 (2006) (claim under the Employee Right to Know Act).
The proof must “‘amount to a reasonable likelihood . . . rather than a possibility. The evidence
need not negate all other possible causes, but . . . must exclude other reasonable hypotheses with
a fair amount of certainty.’” Skinner, supra at 166 (citation omitted).
Plaintiff’s implied5 argument that Webster’s improper removal of Hermann caused the
rejection of its development plan amounts to speculation and conjecture because it does not
exclude other possibilities to a reasonable degree of certainty. See Wiley v Henry Ford Cottage
Hosp, 257 Mich App 488, 496; 668 NW2d 402 (2003). The removal of Hermann from the
planning commission did not likely make a difference in the outcome of the planning
commission’s vote, because a planning commission majority would still have existed for
disapproval of the development plan, unless Hermann’s presence and advocacy would have
Plaintiff does not even expressly address causation in fact. Other than essentially to plead for a
rule requiring that such causation need not be proved, arguing that it would be too difficult to
prove, because township officials would never admit that they would have approved the
development plan if Hermann had not been removed from the planning commission. Plaintiff
argues: “Plaintiff was only required to show that the project was an allowed use under the
Ordinance . . . . The trial court imposed an impossible requirement . . . that Plaintiff was
required to elicit from the wrongdoers that the project would have been approved because they
had violated the law and would have changed their votes. If this standard were imposed, no
1983 claim would ever succeed.” Plaintiff’s complaint, that a number of § 1983 claims fail
because of the difficulty in proving causation, notwithstanding, causation is, nevertheless, an
essential element of a § 1983 claim. Morden, supra at 335; Horn, supra at 659.
swayed a sufficient number of the other members of the commission. But there was no evidence
to that effect.
In short, the trial court did not view certain instances of conduct in isolation. It
considered whether the improper termination of Hermann could have been a cause in fact of the
rejection of the development plan, and found a lack of evidence in support of the required proof
of causation in fact. Therefore, no error can be assigned here.
Plaintiff next argues that the trial court committed error requiring reversal when it
rejected plaintiff’s claim for violation of § 1983 because the members of the planning
commission voted five to zero against plaintiff’s project and would not admit their wrongdoing
or intimidation at trial. Again, we disagree.
The gist of plaintiff’s argument is undeveloped, but it appears to repeat the argument that
plaintiff should not be required to prove causation. As noted above, however, proximate
causation is an essential element of a § 1983 claim. Morden, supra at 335; Horn, supra at 659.
Because plaintiff cites no authority for its argument, we reject it as abandoned on appeal. Etefia
v Credit Technologies, Inc, 245 Mich App 466, 471; 628 NW2d 577 (2001). An appellant may
not merely announce its position and leave it to this Court to discover and rationalize the basis
for its claims. In re Petition by Wayne Co Treasurer for Foreclosure of Certain Lands for
Unpaid Prop Taxes, 265 Mich App 285, 299-300; 698 NW2d 879 (2005). This Court is not
required to search for authority to sustain or reject a position raised by a party without citation of
authority. In re Reisman Estate, 266 Mich App 522, 533; 702 NW2d 658 (2005); Peterson
Novelties, Inc v City of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). “It is not enough
for an appellant in his brief simply to . . . assert an error and then leave it up to this Court to . . .
unravel and elaborate for him his arguments, and then search for authority either to sustain or
reject his position.” Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). See,
generally, Derderian v Genesys Health Care Systems, 263 Mich App 364, 388; 689 NW2d 145
Plaintiff argues that the trial court erred by dismissing plaintiff’s claim seeking
declaratory relief and its taking and promissory estoppel claims. We disagree.
Plaintiff first argues that the trial court erred in dismissing its inverse condemnation
claim. This issue is not contained in the statement of questions presented; it is therefore deemed
abandoned. Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 553;
730 NW2d 481 (2007), citing MCR 7.212(C)(5). Also, plaintiff fails to cite authority for this
position, and the issue is therefore deemed abandoned. Etefia, supra at 471.
Next, plaintiff argues that the trial court erred in dismissing its claim for declaratory
relief. But, declaratory relief is a remedy (equitable in nature,6 because it is not a damages
remedy), Sturm, Ruger & Co, Inc v Occupational Safety & Health Admin, 186 F3d 63, 64 (CA 1,
1999) (“declaratory relief is a remedy committed to judicial discretion and . . . the exercise of
that discretion is properly informed by considerations of equitable restraint” [internal quotation
marks and citation omitted]), not a claim. Therefore, the trial court did not dismiss any such
In addition, all claims other than the damages claims were resolved by the partial consent
judgment. Therefore, the trial court did not err in considering the request for declaratory relief to
be moot. See Ewing v Bolden, 194 Mich App 95, 104; 486 NW2d 96 (1992).
Next, plaintiff argues that the trial court erred in “dismissing” its taking claim. We
disagree. Although plaintiff cites Penn Central Transportation Co v New York City, 438 US
104; 98 S Ct 2646; 57 L Ed 2d 631 (1978), plaintiff provides no analysis for this argument,
merely stating, conclusorily, that “Plaintiff’s reasonable investment-backed expectations (per the
Ordinance) were denied due to Defendants’ conduct.” Plaintiff dedicates only one sentence in a
50-page brief to analysis of alleged error in rejecting the taking claim.
Further, plaintiff makes a more fundamental error in its characterization of and challenge
to the trial court’s decision. The trial court did not “dismiss” the taking claim. The taking claim
was tried. In its verdict (or “decision after trial”), the trial court found no cause of action on the
taking claim. The decision after trial concluded that “there was no unconstitutional temporary
taking of the plaintiff’s property” and “no cause for action for damages.”
Plaintiff points to no basis on which the trial court’s finding of no temporary taking was
erroneous as a matter of law. Rather, plaintiff essentially challenges the trier of fact’s conclusion
that no taking occurred, stating that “the conduct discussed above should have been sufficient to
establish the elements of Plaintiff’s taking claim . . . .” An appellant cannot challenge a verdict’s
merits as such; an appellant must either show that the verdict was against the great weight of the
evidence (which plaintiff does not argue), or that after a bench trial the trial court’s findings of
fact were clearly erroneous, or that its conclusions of law were legally erroneous. Ligon, supra
at 124. With regard to the taking claim, plaintiff makes none of these arguments. Therefore
plaintiff’s assigned error regarding the taking claim must fail.
E.g., East Bay Muni Utility Dist v Dep’t of Forestry & Fire Protection, 43 Cal App 4th 1113,
1121; 51 Cal Rptr 2d 299 (1996) (noting that declaratory relief is an equitable remedy and that it
is often sought as a cumulative remedy in conjunction with requests for injunctive relief and
mandamus). On questions of state law, Michigan courts are not bound by foreign authority,
Campbell v Kovich, 273 Mich App 227, 231; 731 NW2d 112 (2006), but may find it persuasive,
Ammex, Inc v Dep’t of Treasury, 273 Mich App 623, 639 n 15; 732 NW2d 116 (2007).
Plaintiff also argues that the trial court erred in “dismissing” its promissory estoppel
claim. However, plaintiff cites no authority for this argument. Therefore, it is deemed
abandoned on appeal. Etefia, supra at 471.
(1) (a)The trial court did not err in rejecting the substantive due process claim, because
plaintiff failed to show evidence that defendants’ behavior was so arbitrary as to shock the
conscience. (b) The trial court did not apply an incorrect legal standard to plaintiff’s procedural
due process claim, because whether an official has a personal pecuniary interest in the outcome
of a matter is relevant to whether there was an objective decision maker. (2) Plaintiff has failed
to show that the trial court erred as a matter of law in considering as relevant its findings
regarding Webster’s lack of personal pecuniary interest and lack of motive to further a personal
pecuniary interest. (3) The trial court did not view certain instances of conduct in isolation; it
considered whether the improper termination of Hermann could have been a cause in fact of the
rejection of the development plan, and found a lack of evidence of causation in fact. (4) The trial
court did not err as a matter of law in considering that the planning commission voted five to
zero against plaintiff’s preliminary development plan. (5) (a) Plaintiff abandoned its claim that
the trial court erred in dismissing its inverse condemnation claim. (b) The trial court did not
dismiss a claim for declaratory relief; declaratory relief is a remedy, not a claim. (c) The trial
court did not err in finding no cause for action on the temporary taking claim.
/s/ Kurtis T. Wilder
/s/ Jane E. Markey
/s/ Henry William Saad