*1 ELECTRO-TECH, H F COMPANY INC v CAMPBELL 10). (Cаlendar Argued No. Decided 81866. October Docket No. 1, 1989. August Inc., Electro-Tech, brought in the an action under 42 USC 1983 against Campbell Company Wayne H. F. and the Circuit Court Westland, property alleging city took its compensation just of law and without due without by wrong- contrary Fourteenth Amendments to the Fifth and court, refusing building permit. fully The William J. to issue a Giovan, J., jury plaintiff. judgment on a verdict for the entered P.J., Appeals, and M. H. Cynar, and Weaver The Court of curiam, JJ., per holding opinion Cherry, reversed an permitting plaintiff proceed to the trial court erred required plaintiff first to 1983 and that the was trial under § (Docket city’s under state law No. review of the decision seek 86471). plaintiff appeals. joined by opinion by Riley, Justices In an Chief Justice Supreme Griffin, Court held: Boyle, Archer, proceeding under 42 USC owner Before governmental entity final decision from the must obtain a alleged unconstitutionally taken the and also to have compensation through attempt just inverse condem- to obtain case, approval of the nation. In this because the conditional matter, plaintiff’s plan disposition of the site was not a final ripe plaintiff’s adjudication. for claim under § provides remedy deprivation 1. 42 USC 1983 a civil for the acting rights by persons under color of state law. constitutional case, did not make a final determina- In this because disposition plaintiff’s property, regarding tion question an unconstitu- whether the has established ripe need not be decided. The claim was not tional review. 2. Exhaustion of state administrative remedies is not a bringing prerequisite to an action under 42 USC 1983. The References 2d, seq. Domain 375 et Am Jur Eminent §§ Remedies; Annotations under Exhaustion of In- See the Index to Condemnation. verse 433 Mich question whether administrative remedies must be exhausted is question conceptually from the whether an administra- distinct judicially tive action must be final before is reviewable. The finality requirement with whether the initial concerned position decisionmaker has arrived at a definitive on the issue *2 actual, require- injury; inflicts an concrete exhaustion judicial procedures by ment refers to administrative and which injured party may an seek review of an adverse decision and remedy a if the to obtain decision is found be unlawful or case, inappropriate. although plaintiff otherwise In this required appeal site-plan not to the council’s initial decision to zoning appeals, required board of it was to obtain a final city bringing an decision from the before action under 1983. § light surrounding ap- of circumstances the conditional proval plaintiff’s plan, plaintiff of the site had not com- pleted procedures finally the available to render the matter similarly plaintiff required resolved. A situated would be to body a obtain final decision from the administrative which allegedly uncоnstitutionally property. took its . law, Michigan property 3 a Under landowner whose has public been taken use without the of commencement formal for proceedings, alleges condemnation or who that the effect of a governmental regulation, although involving physical not a taking, prevents property any much the use of for profitable purpose, may an action institute for inverse condem case, just compensation. appears nation to obtain In this plaintiff attempted pursue to such an action and that the improperly disposed governmental trial court of the claim on However, immunity grounds. because the had not city, obtained a final decision from the its 1983 action was not § ripe adjudication. for
Affirmed.
joined by
Brickley,
Cavanagh,
Justice
Justices Levin and
dissenting,
deprived
property
stated that Electro-Tech was
of a
process
interest
due
when the
without
of Westland arbi-
trarily
capriciously required
portion
and
Electro-Tech to cede a
property
city
compensation
of its
to the
without
as a condition
building permit.
obtaining
a
majority seriously
misconstrues recent United States
Supreme
precedent
concluding
Court
that Electro-Tech’s
decision,
ripe
adjudication
by
want
a
claim is not
for
final
right
improve
gov-
treating
property
its
as a
Electro-Tech’s
benefit,
by concluding
that Electro-Tech did not
ernment
identify
protected property interest
of failure
a
because
legitimate
a
claim of entitlement.
demonstrate
claim,
process
regulatory
due
Unlike a
Electro-Tech’s
process
require proof
substantive due
claim
does
that the
application
regulation
property
of a
to its
caused an interfer-
property
ence with the use of
so drastic as to amount to a
taking.
requires
Electro-Tech’s substantive due
claim
proof only
deprived
constitutionally protected
that it was
of a
property
interest as
result of its refusal to
submit
arbitrarily
deliberately imposed
unconstitutional condition
by
Supreme
finality
council. The United States
Court
however,
requirement,
applied only
need
be
claim
when
alleges
regulatory taking
property
and therefore is not
Furthermore,
applicable
finality
in this case.
even where the
requirement
implicated,
it need not be
when
satisfied
at-
tempts
majority’s finding
to do so
would
futile. The
supposed
Electro-Tech’s claim fails
of a
because
failure to
requirement
satisfy
finality
imposes
unjustifiably high
an
proof
burden of
on the issue of causation and
exer-
mandates
futility.
cises in
right
improve
property subject
legiti-
Electro-Tech’s
permitting requirements
pro-
mate
awas
interest
tected
Process
Due
Clause of the
Amend-
Fourteenth
city’s illegitimate imposition
ment which was violаted
right
the dedication condition. The
to build on one’s own
is not to be treated as a
benefit. On the
*3
Supreme
law,
basis of United States
Court case
a
analysis,
requires proof
legitimate
benefit
which
of a
claim of
entitlement,
justified.
is not
practical
finality
analyses
The
effect of the
and entitlement
majority
endorsed
the
is to
on
reward obdurate action
the
part
governmental agency aiming
delay
of a
to
obfuscate
permit applications
those,
Electro-Tech,
of
like
whom
to
the
agency
granting
building permit
had no
of
intention
under
imposes
majority
upon
plaintiff
lawful conditions. The
thus
the
engaging
impractical
the
burden
in distant
maneuvers
anticipation
litigation
entirely
which are
inconsistent with
intelligent
operations
business
and common sense.
City
any justification
The
of Westland did not offer
for its
city
demand that Electro-Tech surrender its land to the
without
compensation,
city
appeal
and the
has
admitted
the
imposition
permit
wrongful.
of this
the
condition was
basis
On
precedent
Court,
Supreme
of recent
from the United States
condition violated the Fifth
Amendment
the United States
city arbitrarily
Constitution. The
forced Electro-Tech to choose
constitutionally protected rights.
between two
Electro-Tech was
compelled
yield
right
to
either its Fifth Amendment
to be
compensated
independent
property
for the
of its
or its
of Westland exchange facturing plant site-plan property. on its building per- subsequent approval and a city mit, strip of a demanded the dedication council adjacent Newburgh Road for an of land road-widening Although project. unrelated plaintiff repeatedly
requested re- council appeal restriction, move the it did council’s higher authority. to a Nor did decision attempt lifted have restriction way injunction or declaration. of a circuit court meeting 11, 1979,
At council on June *4 approved plaintiff’s plan subject to council site being conditions, one the dedication five stated prop- plaintiff give away land. The refused plan. erty Thus, the revised and submitted no site Opinion op the Court proposed building However, was never erected. Westland, through formal condemnation proceedings, eventually acquired strip of land abutting Newburgh Road.
Later, the plaintiff brought an against action under 42 alleging USC the city "took” its property without just compensation without due of law violation of the Fifth and Fourteenth asked, Amendments. are We case, this to determine whether this property owner is entitled damages to recover under USC 1983 for alleged taking caused "wrongful” denial of a building permit. Accord- ingly, we must first procedural determine the pre- requisites for such an action and whether plaintiff has met them.
We hold that proceeding before under 42 USC 1983, a property owner must first obtain a final decision from the particular governmental entity alleged to have unconstitutionally taken his property and also attempt just compensa- to obtain tion through inverse condemnation. In the instant case, because approval conditional plaintiff’s plan site was not the city’s disposi- final matter, tion of the we hold that the plaintiff’s 1983 claim was not ripe for adjudication. § We reach, therefore, need not the question whether the council’s actions actually constituted a "tak- ing” within the meaning of the Fifth and Four- teenth Amendments. affirm We the decision of the Appeals Court of the trial court erred in permitting proceed to trial on its claim. §
I. FACTS AND PROCEEDINGS Electro-Tech, Inc., Plaintiff-appellant, manufac- tures electrical products. electronic Much of *5 433 Mich op Opinion the Court the with involves contracts business Electro-Tech’s company’s military. manufac- The United States Newburgh turing in the facility Road is located City of Westland. president Beauchamp sole and is
Mr. Jack anticipation se- of Electro-Tech. of shareholder curing with additional contracts existing complete efficiently to more and in order Beauchamp another to build contracts, manufacturing plant decided Mr. existing
directly behind con- facility. 26, 1978, Electro-Tech On October Company, Campbell defendant, F.H. tracted with building. to the Pursuant new to construct agreement, obligated Campbell a to obtain was by complete building permit construction and to February 13,1979. Beauchamp Mr. March or about
On plan. Campbell’s approved However, before site beginning actually building permit obtaining required Campbell submit its construction, was departments. city plan The various for review departments are then of these recommendations planning for initial commission to the submitted planning approval. site-plan commission The city to the makes its recommendation thereafter plan passes approval. the the After a site council for council, finally matter submitted building department building department. building plans the final site and examines then building permit.1 approved, and, if issues representatives February 21, 1979, On Campbell’s departments to discuss met various meeting, represen- plan. proposed At that site compiled items which of thirteen a list tatives were before plan required in the site included to be planning commission submission testimony through the procedures at trial were verified These city employees. various Opinion Court council. This list was forwarded letter for Wagner, project Mr. Richard director list, in the Although included Campbell. made at apparently recommendation exchange site-plan ap- for meeting require, building permit, the dedi- proval subsequent and a strip along the front twenty-seven-foot cation of a widening of Electro-Tech’s *6 The instant lawsuit concerns Newburgh Road.2 requirement. this dedication 22, 1979, Wagner Mr. received a On March the commission would stating planning letter approve council site city recommend that among things, other Electro- plan contingent upon, strip dedication of the to New- adjacent Tech’s trial, burgh Beauchamp Road. At Mr. testified that, during the he attended four spring meetings protesting city’s or five council de- mand.
Nonetheless, 11, 1979, June meeting at a attendance, Mr. in coun- Beauchamp city with to five stated approved plan, subject cil site contingencies:
1) Loading designated as clearly area should be by striping signage. such and 2) A in addition is second access door the new required along building for the north side of the protection. fire 3) Engineering requirements must be Fire and engineering building plans.
met on final and
4) wide, approximately 210 Dedication of 27 feet Newburgh Road feet in front of K2da for future right-of-way.
5) graded greenbelt The front area is [Emphasis sodded. added.]_ request According testimony, was made the dedication to the trial plan, plan. goals city’s in master in furtherance of the stated adopted April at the time of trial. was still effect 433 Mich Opinion of the Court attempted Campbell Electro-Tech
Neither nor city appeal3 council or to take the decision of building department. directly It the matter Electro-Tech did not at- is also established that tempt condition removed to have the dedication way injunction or declaration. of a circuit court meeting 11, however,
Soon after the of June making plan Campbell began revisions to the site requests comply council. with except contingencies Plaintiff claims that all of the However, for the dedication were met. evidence suggests never adduced at trial plan a final to the counсil or to the submitted site (which building department ultimately responsi- issuing building permit) was, ble for revising through September fact, of 1979. still ap- procure site-plan failure to Because proval subsequent building permit, Camp- and a proceed bell could not with the construction of plant. additional Electro-Tech’s new Without space, alleged it work could not bid upcoming on several contracts and forced to *7 existing subcontract work on contracts order meet deadlines. City 15, 1979,
On October of Westland sent offering purchase strip Electro-Tech letter abutting Newburgh Beauchamp of land Road. Mr. rejected maintaining offer, the initial proposed purchase price January too low. city 1980, filed a condemnation action in Wayne Circuit Court.4 brought May 21, 1982, Electro-Tech
On 3 however, Beauchamp, Mr. heard of the testified that he had zoning appeals. board of 4 18, 1983, judgment On November the court entered a consent twenty-seven-foot parcel, awarding the condemnation of the Tech Electro $45,824.88, originally or four times the sum offered. 65 Campbell Electro-Tech Opinion of the Court Westland,5 alleging against action "wrongful” demand and city’s "extortionary” state building permit violated both denial of the for sum pretrial law. At the motions and federal Electro the trial court dismissed mary disposition, being by governmen state claims as barred Tech’s immunity. tal 11, 1985, proceeded to June
On 1983. jury under 42 USC The trial on its claim in the a verdict in favor of Electro-Tech returned 9, 1985, $433,052. July city On amount verdict, notwithstanding moved for judgment 23, 1985. July order entered which was denied Reaching raising four issues. city appealed, The reversed, first, hold Appeals the Court of only Elec permitting the trial court erred ing 42 USC 1983.6 proceed tro-Tech to to trial under Appeals stated "that no Specifically, the Court exists violation of constitutional or federal law de plaintiff merely erroneously where has been approval building permit by nied initial site and a council. Plaintiff must look for a review of App within the state.” 161 Mich that decision (1987). 629; 411 800 NW2d 22, 1988, granted appeal we leave to On March the plaintiff’s judg- limited to the issue whether ment under 42 USC 1983 should be reinstated.7
II. DISCUSSION
persons
provides
remedy
19838
a civil
Section
5
Campbell
This
also sued
for breach of contract.
prior to trial.
matter was settled
6 Electro-Tech,
Co,
App
161 Mich
411
Inc v H F
(1987).
NW2d
(1988).
immunities secured the Constitution States. US at 535. See also Collier the United [451 (CA 8, 1313 City Springdale, of 733 F2d 1984), (1984).] 857 cert den 469 US Parratt, here As in the Westland Council and, undoubtedly acting capacity its official therefore, "under of state law.” Our analysis, color therefore, focuses, Parratt, as it did in on whether or plaintiff right, privilege, has been denied immunity by secured the United States Constitu- tion.10 complaint, upon
In
fourth amended
which
its
tried,
alleged
this case was
plan
its site
city
approve
council’s refusal
to
compen-
building permit
rights
just
violated its
to
the Fifth and
process12
sation11 and due
under
Appeals
Fourteenth Amendments.
The Court of
ruled that Electro-Tech
could not maintain
an
that no
concluding
action under
constitu-
§
merely
has
plaintiff
tional violation exists "where
approval
denied initial site
and a
erroneously
been
10 Parratt,
deprivation
the Court found that the inmate’s
did not
deprivation
from
the Due Process Clause. The
did not result
violate
rather,
procedure;
it resulted from "a random
an established statе
and
employee.
Accordingly,
unauthorized act” of a state
While are Appeals, we believe reached the Court blurring analysis what we is flawed inquiries: the exis- three should be distinct believe violation, exhaustion tence of a constitutional ripeness. remedies, administrative state deprived actually whether Electro-Tech was issue Four- in violation of the Fifth and of its *10 from the issues is distinct teenth Amendments required exhaust whether Electro-Tech proceeding remedies before state administrative under garding city’s re- § 1983 and whether decision property and, was final Electro-Tech’s judicially therefore, thus, will, reviewable. We inquiries separately. these treat
A. VIOLATION CONSTITUTIONAL
1.
TAKING
REGULATORY
According
Supreme
of the United
to the
Court
governmental
taking may
States,
entity
a
occur where
power
its
of eminent domain
exercises
through
proceedings, see,
formal condemnation
e.g.,
Parker,
26;
L
98;
348
75 Ct
99
Berman v
US
S
(1954) (Fifth
taking),
27
or where
Ed
Amendment
power
governmental entity
police
a
through regulation
exercises
prop-
which restricts
use of
erty,
Pennsylvania
Mahon,
see
Co v
260 US
Coal
(1922) (this
393, 415;
158;
43
322
Ct
67 L Ed
S
may
tak-
framed as a Fifth Amendment
claim
ing
process”
or as Fourteenth Amendment "due
taking).
type
use
It is well
land
established
regulation
if
not effect
it "substan-
does
v
Opinion of the Court
legitimate
state
interests”
tially advance[s]
does not
an owner
"den[y]
economically viable use
Tiburon,
Agins
255, 260;
of his land.”13
US
(1980).
2138;
100 S Ct
The
in the instant
case relies on two
recent decisions of the
Supreme
United States
support
Court
its contention that
the actions of
Westland
Council constituted
a "taking”
violation of the Fifth and Four-
English Evangelical
First
teenth Amendments.
In
Co,
Lutheran
Angeles
Church of Glendale v Los
304;
(1987),
US
107 S Ct
ated a handicapped children. 1978, when a flood destroyed the and much facility area, surrounding Angeles Los County *11 passed an interim ordinance prohibiting re- any construction the flood area. The church then brought an inverse condemnation suit state court, claiming that the ordinance denied the plaintiff of all use of its property. _ 13 established, however, governmental It is also well that where regulation "permanent physical occupation” property, results in a of regard taking will be found "without to whether the action achieves important public only impact an heneñt or has minimal economic on Teleprompter Corp, the owner.” Loretto v Manhattan CATV 458 US 419, added). (1982) 3164; 434-435; (emphasis 102 S Ct 73 L 2d 868 Ed Mich 57
70
433
op
Opinion
the Court
the
successfully
to strike
moved
county
The
relief available
ground
only
on
that
the
claim
the
invalid
the
declaration
that
ordinance
was a
the
permitting
specifically
or writ of mandamus
Tiburon, 24 Cal
Agins
v
the
use of
land.
proposed
(1979),
372;
Electro-Tech contends anal- instant because council’s ogous case improper requirement of the dedication imposition a build- temporary resulted failure obtain Thus, ing Angeles County’s Los flood permit. like ordinance, argues the council’s "worked a of all use condition here [the "subsequent and that no ac- plaintiff’s] property” Westland, tion” not even even- parcel, twenty-seven-foot tual condemnation duty compensation relieve it of to provide "can principle English espoused by the in First Court evolved prior holding cases that when the intentional acts of from several government private property destroy the use of and its entire value to owner, just has "taken” without com pensation in Fifth and See violation Fourteenth Amendments. States, 164; 383; v 100 S 62 L Aetna United 444 US Ct Ed 2d Kaiser (1979) (the attempt public government’s to create a access to a taking requiring just compensa privately tion); pond to a owned amounted Dickinson, 745; 1382; v 67 S 91 L Ed United Stаtes US Ct (the (1947) flooding plaintiff’s government’s purposeful taking requiring just condemnation constituted a land absent formal 1062; Causby, compensation); 328 US 66 S Ct United States (1946) (the military airport plaintiff’s L use of over the Ed 1206 an upon compensa imposed a servitude the land for which chicken farm tion was required). *12 71 Opinion of the Court during for the period which the was effec- tive.” Id. Eng- between First
Recognizing the similarities
lish and the instant
case,
it should be noted that
English
the First
Court expressly declined to ad-
quite
dress
"the
different questions
that would
arise in the case of normal
delays
obtaining
building permits,
changes
ordinances,
in zoning
Id.,
variances,
and the like . . . .”
321.
p
English
Two weeks after First
decided,
was
Comm,
decided Nollan v California Coastal
Court
3141;
(1987),
US
107 S Ct
In Electro-Tech’s Nollan is also dispositive of the constitutional issue before this Court today. According plaintiff, to the the dedication condition petition The Nollans filed a for a writ of mandamus in the court, superior arguing imposition of the access condition vio Taking Amendment, incorporated lated the against Clause of the Fifth as Id., pp the states the Fourteenth Amendment. 828-829. Mich op Opinion the Court Nollan, here, does like easement condition public purpose related build- any serve *13 to requirement. plans Electro-Tech’s ing permit in manufacturing facility way its are no expand Newburgh plans the to widen city’s related to Thus, authorized to although Road. Westland is i.e., its goals plan, the set forth in master pursue Road, cannot, Newburgh the of it within expansion Amendment, compel Fifth the confines of the in nearby give away property landowners their goal. realization of that Nollan, Elec- English First the and
On basis of the "took” argues City tro-Tech that Westland the Fifth and Four- violation of Electro-Tech Accordingly, teenth Amendments. that it asserted a claim for properly contends has damages against city city, the under 1983.16 The § hand, that no argues on the other there was it did and "taking” pay because in fact condemn strip for of land twenty-seven-foot Electro-Tech the adjacent Newburgh Road._ 16 significant English It is 1983 is that neither First nor Nollan a § Thus, prerequisites bringing case. neither case addressed the for such municipality. example, Dep’t against a in Monell v an action For York, 2018; City of New 436 US 98 S Ct Social Services of (1978), Supreme Ed United Court held that L 2d 611 States Congress intended to include among municipalities those therefore, declaratory, . . local units . governing and other bodies, persons applies. Local § whom monetary, directly can be under for § sued where, here, injunctive or relief as the action that implements alleged or to be unconstitutional executes statement, ordinance, officially policy adopted regulation, or decision body’s promulgated at 690. officers. [Id. Emphasis added.] case, appears Applying Monell to the instant that Electro-Tech "implementation for or execu- could have sued Westland regulation, though perhaps not mere tion” of an unconstitutional resolution, regulation. such a council’s enactment of even Here Brickley asserts, implemented if final as Justice never back satisfied the four executed because never came n(c). requirements. valid See section Opinion of the Court case, Having reviewed the record in this we find "taking” involved 1983 action is § "taking” different than the in the involved city’s condemnation action. The subject § property upon suit is the which Electro-Tech in- build, while the subject tended of the condemna- tion suit was the twenty-seven-foot parcel abutting Newburgh Road. Nollan, agree,
We the basis of that had the enforced the dedication city actually requirement, "permanent physical occupation” of Electro- (i.e., Tech’s land twenty-seven-foot parcel) note, however, would have resulted.17 We city eventually paid parcel'of Electro-Tech for this Nollan, land. Similarly, permanent physical (i.e., plaintiff’s invasion the land *14 which the upon public placed) easement was to be did not occur the because commission’s threatened action never came about. The Nollan Court simply held that the easement condition did not advance Id., any legitimate p state interest. 841.18_ 17 (discussion id., p respect See 832 of the Loretto rule with 'permanent physical occupation’ easement occurred, permanent think condition: "We a has rule, purposes given for of that where individuals are .”). right pass and continuous to to and fro . . 18 Supreme The Court stated: abridgement prop cases describe the condition for of [O]ur
erty rights through
police power
as a "substantial advanc
ing]”
legitimate
of a
State
are
interest. We
inclined to be
particularly
veyance
adjective
careful about the
where the actual con
lifting
of
made a
is
condition to the
of a land
restriction,
heightened
use
that the
rather than the stated
since in that context there is
risk
purpose
compensation requirement,
is avoidance of the
police power objective.
left, then,
justification
We are
with the Commission’s
for the
requirement
....
access
required
permit
part
"The access
as a condition of this
is
of a
comprehensive program
along
provide
public
to
continuous
access
undergo development
Faria Beach as the lots
or redevel-
opment.”
simply
expression
That is
an
of the Commission’s belief that
57
433 Mich
74
Opinion of the Court
similarities
be-
acknowledge
obvious
We
Nollan, how-
tween Nollan the instant case.19
in-
ever,
from the
distinguishable
is procedurally
was never an
ripeness (finality)
case
stant
because
instant
council
in the
issue there. Unlike
Nollan
case,
apparently
placed
commission
condition,
the issu-
improper,20
one
albeit
only
strip
public
of
will be served
a continuous
the
publicly
interest
may
along
good
The Commission
accessible beach
the coast.
idea,
right
that does not establish
well be
that
compelled
free
using
that it is
but
residents)
(and
other
alone can be
Nollans
coastal
Rather,
its
is
contribute to
realization.
California
to
wishes, by
"comprehensive program,” if
its
it
advance
power
"public purpose,”
its
for this
of eminent domain
property, it
but if it
an easement across the Nollans’
wants
pay
[Id., pp
(cid:127)must
it.
841-842.Citations omitted.]
acknowledge the
the instant case
We also
similarities between
out, however,
English.
point
although
Supreme
First
We
taking
English
regulatory
doctrine to
Court in First
encompass
expressly
a
property.
extended the
seeking damages
temporary taking,
for a
the Court
actions
temporary
in kind from
stated that a
different
permanent taking
of his
in that a landowner must be denied all use
case,
English, supra, pp
In the
al
318-320.
instant
First
though
temporarily deprived
opportunity
expand
manufacturing
appears
facility,
still
its
it
that the
economically
present
use
condi
had an
viable
for the
its
tion.
permit
condition serves
Nollan Court stated
"unless
ban,
development
building
governmental purpose
the same
as
regulation
land use but an 'out-and-out
restriction is not a valid
plan
” Nollan,
Associates,
supra,
citing
JED
Inc v
of extortion.’
(1981),
Atkinson,
584; 432
on other
121 NH
A2d
overruled
grounds
McEvoy, 131
553 A2d
sub
Town of Auburn v
NH
nom
(1988).
Associates,
Hampshire Supreme
In JED
the New
Court examined
regulation
required
developers
zoning
percentage
condition
certain
all
dedicate a
which
playgrounds
as a
land for
or other town uses
approval.
regulation to
The court found the
subdivision
developers
required
pay
for the
because
"tо
be unconstitutional
purposes
privilege
using
even
land for
and reasonable
their
valid
*15
requirements
zoning
though it
of the town’s
satisñes all other
added).
Id., p
(emphasis
regulations.’’
subdivision
distinguishable
Unlike
from
instant case.
JED Associates
Electro-Tech,
developer
complied
had
all
in JED Associates
with
Associates,
requirements.
supra, p
585.
JED
of the "reasonable”
In the instant
requirements,
view,
case,
remedy
the four "valid”
Electro-Tech did
building plan.
site or
In our
nor did
submit a final
finally
City
of Westland.
was not
resolved
matter
Electro-Tech
Opinion of the Court
Thus,
the building permit.
plaintiffs
anee of
steps
go
there had no further
through before
coming to court
to contest
the improper condition.
case,
imposed,
the instant
council had
to the improper
requirement,
addition
dedication
four "valid”
on the
conditions
issuance
permit. Because Electro-Tech
failed
remedy
requirements
these valid
or to
submit
revised
plan evidencing
therewith,
site
compliance
it was
unclear whether or how much
improper
condi-
tion
interfered with
owner’s
investment-
expectations.
claim,
backed
Electro-Tech’s
there-
fore,
ripe
was not
for review. See discussion of
Regional
Williamson Co
Planning Comm v Hamil-
ton Bank of Johnson
City,
172;
US
105 S Ct
n(c).
3108;
(1985),
2. SUBSTANTIVE DUE PROCESS Brickley Justice asserts that a property owner like Electro-Tech may "advance a [substantive] process due claim separate and distinct from the regulatory taking due claim” discussed in Post, this opinion. Brickley p 94. Justice contends has, case, the instant estab- lished "arbitrary] and capricious[ action on the ]” part of the city council in imposing the dedication condition in violation of the Due Process Clause of Id., the Fourteenth Amendment. p 92.
In support
Brickley
assertions,
of these
Justice
Nollan,
relies on
supra, Williams,
Daniels v
337;
US
S Ct
employed due substantive process analyzing land use restrictions. similar (CA e.g., 9, Geisse, v 857 1300 See, Bateson F2d (CA 1988), 1988); 3, Walker, 840 F2d 1124 Bello v 176; 109 S 102 L 2d 868; 488 US Ct Ed cert den (1988). Enterprises, Chiрlin Inc see v 145 But (CA 1983). Lebanon, 1, We find it 712 F2d Supreme significant, however, that Court has approach involving yet employ to such an cases permit. wrongful a land use In Nol- denial of Supreme example, only lan, for Court regulatory taking analysis, applied a traditional repeatedly to the case as one in- but it referred volving taking.21 suggesting, however, that are not Electro-
We
asserting
substantive
Tech was foreclosed from
process
fact,
we
claim in
instant case.
due
claims, however,
"taking”
Supreme
Court has
In addition
protection challenges
governmen
process
equal
due
considered
regulatory taking
property. Despite
regulation
tal
doctrine
interests,”
fact
legitimate
(regulation
"substantially
must
advance
state
Coal, supra),
process
Pennsylvania
due
and the substantive
"reasonably necessary”
legitimate
(regulation
test
must be
to serve
interest,
595;
Hempstead,
v
369 US
82 S
state
Ct
Goldblatt
Town
identical,
987;
[1962])
analytically
L Ed
seem almost
2d
takings
in the
field
Court maintains that
"verbal formulations
[sic]
quite
applied
generally
been
different” from
standards
have
Id.,
n 3.
due
claims.
Campbell Co
Opinion of the Court
Brickley
that both the United
agree with Justice
this Court have ac-
Supreme Court and
States
pro-
of substantive
due
knowledged
possibility
regulation
governmental
response
cess claims
of Euclid v Ambler
e.g., Village
See,
property.
Co,
365; 47 S Ct
Furthermore, here tried clearly its taking case on a regulatory process due theory. The record reveals that the trial court instructed "deprivation on jury of property without process due of law.” There was no instruction relating to substantive process due or to the "arbi- or trary” "unreasonable” nature of the council’s dedication requirement.22_ 22 Brickley explain why Justice strains to is a "[Electro-Tech] post, p due case Nollan was not.” See 126. [substantive] [and] Brickley anomalous, therefore, find it rely
We Nollan to that Justice should support his conclusion that Electro-Tech’s substantive due process rights were violated: compels right
Nollan
the conclusion that Electro-Tech’s
to
433 Mich
Opinion op the Court
require-
subject
legitimate permitting
improve
property
admittedly illegitimate imposi-
city’s
was violated
ments
tion
parties
remaining contingencies
dispute
between
of the
condition.
dedication
actually complied
with
four
whether Electro-Tech
light
Nol-
not be resolved in
need
pp
[Post,
lan.
116-117.]
Brickley’s
fatally
process analysis
flawed
substantive due
Justice
pro-
constitutionally
of a
because it fails
establish
existence
liberty
According
Brickley,
property
to Justice
or
interest.
tected
Nollan eliminates
Electro-Tech’s "inter-
the need
establish whether
liberty
enjoyed
...
as
est
an
privilege
protected
as a
or
interest
should
treated
ownership
property,
as a
of its
incident
constitutionally
did not rise to
level of a
or benefit which
expec-
Electro-Tech’s 'unilateral
interest until such time as
receiving
'legitimate
permit
claim of entitle-
tation’ of
ment’ to it.”
became
Roth,
Post,
Regents
quoting
408 US
Bd
(1972).
2701;
577;
Ed 2d
92 S Ct
33 L
Brickley
stating
correctly quotes
as
the Nollan Court
Justice
though
right
"the
its exercise
to build on one’s own
—even
subjected
legitimate permitting requirements
re-
can be
—cannot
” Id., p 833,
'governmental
motely
n 2.
as a
be described
benefit.’
Brickley
However,
the fact that this statement was
Justice
overlooks
process.
due
in the context of substantive
discussed
case. The
made the above statement
Nollan is
Court
Co,
response
US
argument,
Monsanto
to an
based on Ruckelshaus v
(1984),
2862;
L
104 S Ct
Ed 2d 815
that because
*18
building permit
granting
on
that the
of a
would
Nollans were
notice
easement,
granting
being
they had
of the
no reason-
be conditioned
the
"
public’
'expectation
able
to exclude members
the
able
Nollan,
833,
walking
supra, p
2.
from
n
across their beach.”
case,
Monsanto,
taking
the
In
which is also
the Court held that
registration
granting of an
is a “valuable Government
insecticide
to
trade
benefit” which licenses
secrets in
use
disclose
registration application.
distinguished
The
Court
announcement
Nollan
Monsanto, stating simply that
"the
[commission’s]
(or
of)
granting
[building] permit
application
will entail
regarded
yielding
the
voluntary
of a
cannot
as . . . the
interest
'exchange’
. . . that
found to have occurred in Mon-
we
”
833,
Id., p
n 2.
santo.
Brickley
interprets
broadly.
2 of
too
He
Justice
footnote
Nollan
Nollan,
case,
taking
us
Roth
would have
believe that
renders the
process “government
due
benefit/entitlement” test unnec-
substantive
essary in the
Brickley,
use area.
Justice
we are not
RRI
land
Unlike
(e.g.,
post
Realty
"puzzl[ed]” that
due
cases
-Nollan
2,
Corp Village
Southampton,
1989])
870 F2d 911
do not
v
[CA
Post, p
118.
is a
case.
mention Nollan.
Nollan
was,
Furthermore,
assuming
as
even
the instant case
Justice Brick-
ley asserts,
process theory
tried on
due
and that Nollan
a substantive
context,
applies
premature
we
still
claim
would
find Electro-Tech’s
Co,
Herrington
final
v Sonoma
834
for want of a
decision.
Opinion of the Court
explained
As
Justice
"[r]egardless
Brickley,
of the manner
'regulatory taking’
which a
claim
framed,
whether
as a violation
of the Just
Fifth
Compensation Clause of the
Amendment
or
of the Due Process Clause of the Fourteenth
Amendment,
the claim
ripen
does not
until
landowner has received a final decision regarding
application
regulation
or ordinance
to
supra;
Williamson,
particular
piece
of property.
cDonald,
Co,
Sommer & Frates v Yolo
Ma
(1986).”
340;
2561;
US
106 S Ct
B OF STATE EXHAUSTION ADMINISTRATIVE REMEDIES v Florida In Patsy Regents, Bd of 457 US 550; 102 S Ct (1982), L Ed 2d 172 Supreme Court unequivocally stated that exhaus- tion of state administrative remedies is not a prerequisite an bringing action under USC 1983.23 in Patsy filed a plaintiff 1983 action § (CA 1988). F2d 1488 right person The Nollan Court stated that a has a subject “legitimate permitting require- to build on its land person ments." The Court right did not state that a has an automatic indisputable property building permit. or interest in a Nollan, plaintiffs were entitled to build on their land because they apparently legitimate permitting require- had satisfied all the only imposed ments. There was tion one condition there and that condi- Here, improper. imposed there were four valid conditions Thus, legiti- which were never satisfied. Electro-Tech did not have a and, building permit therefore, mate claim of entitlement has constitutionally protected liberty not demonstrated a interest. It is also well established that a need not exhaust state *19 judicial proceeding remedies before to federal court awith 1983 § 167, Pape, 183; 473; action. (1961), v Monroe 365 US 81 L S Ct 5 Ed 2d 492 grounds Monell, supra. overruled on other
80
57
433 Mich
op
Opinion
the Court
alleging
court,
that her em-
in federal district
ployer
oppor-
employment
intentionally
denied her
solely
race and sex.
on the
of her
tunities
basis
employer successfully
to dismiss be-
moved
available
had not exhausted
cause the
Supreme
However,
remedies.
administrative
Court,
legislative history
examining
42 USC
noting
paramount
Congress has
"the
role
1983 and
protect
assigned
constitu-
the federal courts to
prior
rights,”
its
decided not
overrule
tional
that exhaustion of state administrative
decisions
remedies is
prerequisite
§
to a 1983 action.24
unequivocally
Although Patsy
establishes
required to exhaust available
Electro-Tech was not
bringing
§ 1983
administrative remedies before
Supreme
claim,
federal
other
Court
lower
dealing specifically
regulatory
with
court cases
taking
importance
obtain-
have focused
governmental entity
ing
from the
a final decision
unconstitutionally.
alleged to have acted
that is
c
FINALITY
Planning
Regional
Comm v
In Williamson
City, supra, 192-193,
Bank of
Hamilton
Johnson
Supreme Court
stated:
The question whether administrative
remedies
conceptually
must
exhausted
24
Cahokia,
Ed,
668, 671-673;
US
See McNeese v
Illinois Bd of
373
Barchi,
55,
(1963);
63,
1433;
Barry v
Ct
The Williamson Court
set
forth two finality
requirements which must be satisfied before a
plaintiff may bring an action under
1983 for
§
damages
resulting from an
regu-
unconstitutional
latory
First,
taking.
the Court
required that
plaintiff obtain a ñnal decision regarding
appli-
cation of the zoning ordinance
and subdivision
regulations
Id.,
to its property.
citing Hodel
v Virginia Surface Mining
Ass’n,
& Reclamation
Inc, 452
264;
US
101 S
2352;
Ct
According to Williamson, requiring a final deci- sion from the appropriate administrative body prior to initiating a 1983 action compelled "is § the very nature of the inquiry required by the Just Compensation Williamson, Clause.” supra, p 190. Mich 57 op Opinion the Court constitutes a question of what Although "[t]he has 'taking’ the Fifth Amendment purposes of difficulty,” problem of considerable proved to abe City, York 438 US Transp Co v New Central
Penn (1978)], L 57 Ed 2d S Ct [98 among the consistently has indicated Court inquiry significance in the are particular factors the the extent investment-backed challenged impact action and economic with reasonable it interferes to which expectations. Those factors sim until the administrative ply evaluated cannot be *21 final, position a definitive agency has arrived at regulations at apply it the regarding how will [Id., question. pp to land in particular the issue 190-191. Citations omitted.][25] light Patsy, Court reasoned In of the Williamson required although plaintiff not be that to the would planning appeal decision to the commission’s zoning required appeals,26 of it would be the to board result in a conclu- variances which "would seek it the Commission whether sive determinatiоn plaintiff] develop the [the allow to subdivi- would sion p [originally] proposed.” Id., the manner added). (emphasis 193 Applying principles case,27 the these to instant 25 Williamson, eight city planning the commission had voiced In plat. objections initially rejected plaintiff’s preliminary when it the to had failed seek variances for each of Because objections, Commission determines that no variances will be unripe. claim the Court found its § "[U]ntil granted, is record, find, [plaintiff] jury impossible to 'will for the on this whether 191. be to economic benefit’ from the land.” Id. at In other able derive eight words, regarding application of final decision all a "[a]bsent objections, impossible of it is to tell whether the commission’s [plaintiff’s] any use or land retained expectation reasonable beneficial whether Id., 190, destroyed.” had n 11. interests been 26 [Respondent required appeal would to the Commis rejection plat Zoning preliminary to the Board of sion’s Appeals, that making. most, empowered, at to review because Board participate rejection, not to in the Commission’s decision- [Id., p 193.] Brickley majority applying the William- Justice criticizes Opinion of the Court we although would hold that Electro-Tech was not required appeal site-plan the council’s initial appeals, plain- decision the zoning board of required tiff was a final decision from the obtain city before an action under 42 USC bringing 1983.28 light surrounding of the circumstances finality requirements According son the instant case. to Justice finality requirement applied only Brickley, "the must be when a alleges taking regulatory landowner’s claim has Post, pp Brickley occurred.” 100-101. Justice asserts that Electro- alleged Tech regulatory taking has substantive due claim than rather Williamson, therefore, inapplica- claim is Post, p ble. 102. Brickley’s disagree We with Justice characterization of the plaintiff’s has, view, claim here. Electro-Tech in our asserted and regulatory taking process-type tried a due claim. Brickley has, view, Justice in our overlooked the similari- obvious example, ties between involved a certain conditions on the instant case Williamson. For each case whereby government imposed use land restriction a local permission Moreover, to build. each case was brought pursuant regulatory USC 1983 and was tried as a taking action. clearly applicable Regardless Williamson is in the instant case. regulatory framed, the manner in which a claim whether as Compensation a violation of the Just Clause the Fifth Amendment (as or of the Due Process Clause of the Fourteenth Amendment the until the case), ripe instant Williamson instructs that the claim is not property the regarding application owner obtains a final decision regulation Id., pp property. 197-200. acknоwledge zoning We that Williamson involved a ordinance *22 judice find, city while the case sub involves council resolution. We however, inapplica that this distinction does not render Williamson view, ble here. In our substantially outweigh the similarities these cases between two instance, For their dissimilarities. con both government’s regarding particular piece cern a local decision Moreover, property. process through both cases involve the which a body local renders its final decision. Williamson, property As in we hold that a owner resort need not to (like procedures” appealing state "review the council’s to the decision mandamus) zoning appeals seeking board of would violated action because such merely judgment "result in a whether the actions [council’s] Williamson, any rights.” 193. Instead we [the owner’s] procedures counsel the might to owner use the which available according plans it originally to enable build to the it had Williamson, approval. respon submitted for In meant that that the sought regarding objec eight dent should have variances each of the case, tions. In the instant it meant that at Electro-Tech should have plans reflecting compliance least submitted revised with the four way, only city "valid” conditions. the would be afforded Mich 57 Opinion op the Court approval” site of Electro-Tech’s
the "conditional plaintiff persuaded plan, had not the arewe procedures completed yet might which the available according to the it to build have enabled approval. originally plans for it submitted had meeting, city the 11, 1979, council At the June imposed, to the dedication in addition council had requirement, obtaining final
four conditions for building per- site-plan approval subsequent and a four that none mit.29 Electro-Tech admits objectionable, and, al- were additional conditions though proceeded remedy deficiencies, it the to (either plan the failed to a final site submit department) reflecting building at council or changes.30 least those although all of
The further indicates that record city departments participate in decision- the the making regarding process, decision the ultimate depart- requests building building lies with the building depart- previously, ment. As stated examining responsible the final site ment for is (as report building plans from as the final well everything engineering department) and, if is also, requirement, opportunity to but the assuming mine basis of the unlawful dedication reconsider the dedication trial, deter- went a factfinder would able to the case deprived solely on the of its whether Electro-Tech was requirement. original thirteen This had narrowed from number been February 21, planning 1979. commission on recommended along Electro-Tech 30 The of Westland has asserted all fаcility simply contractor, plans the new since decided to abandon its build start, already from the was months behind schedule already had since the passed. to secure certain contracts chance completed facility was record reveals that the entire to be However, by February not even submitted had 1979. as of March of Beauchamp proposed plans its site to Mr. plaintiff may approval. abandon the twenty-seven-foot parcel, decided Further evidence that have that, plans early as 1979 when fact as October of notified of its intention to condemn first dedication was aware yet requirement longer submit no obstacle and still failed to an plans. its final *23 Electro-Tech 85 Opinion the Court approved, ultimately issuing building per- for mit.31 support facts, view,
These our the conclusion obtaining permission city’s that yet completed. to build had not been The fact that approval the council’s was "conditional” indicates yet finally that the entire matter had not been resolved and Electro-Tech would have to sub plan begin mit an amended site before it could building. Williamson, As indicated in until all five including objections, of the council’s the four finally conditions, "valid” are addressed and re (either by compliance solved or to refusal com impossible ply), accurately it is to determine the plaintiff’s any extent to which the land retained reasonable or beneficial use the extent to which plaintiff’s expectation interest been had des troyed32_ Brickley building department Justice asserts that the does not regarding Post, building requests. pp make the ultimate decisions 107- However, testimony suggests unequivocally 109. adduced at trial
building approval department step process. is the final in the Justice Brickley building department himself states that the function of the plans requirements is "to of the may appeals.” inappropriately nondecisional.” determine whether ñnal conform the building zoning code and with ordinance such modifications as approved by city zoning have been council or board added). Id., Brickley (emphasis view, p 107 In our Justice "nondiscretionary characterizes this function as Id., p 110. agree department building While authority we that the no had resolution, disagree or revise override the June 11 council we no permit parcel. twenty-seven-foot could issue unless Electro-Tech dedicated the view, premature stage. In our such a conclusion at this By neglecting plan reflecting compliance submit an amended site conditions, only precluded any with the four "valid” (we obtaining building permit only chance speculate requirement from can council that the would not have reconsidered dedication complied had with the "valid” four condi- tions), impossible jury but also made fоr a to determine whether a "taking” could result have occurred as a of the unlawful dedication requirement. require The reason we would Electro-Tech to address each condi imposed by following tion Suppose the council is illustrated scenario. fact, comply was, Electro-Tech had refused unable to Mich *24 Opinion of the Court agree Brickley the build- Justice We with ing authority department "to override a has no city imposed by Post, 107. the council.” condition However, obtaining the need for fact obviate this does city the in from this a final decision department building cannot The that the case. overrule the fact
city not, as Justice council does finality suggests, Brickley the Williamson reduce futility.33 requirement in to a mere exercise purpose Supreme primary in man- Court’s The appropriate dating ad- decision from the a final body of to the existence was establish ministrative "taking” the to it has harmed a extent which by plaintiff. Thus, the the while final decision imposed by comply the council. one of the "valid” conditions with circumstances, regarding question the these would arise Under actually requirement affected unlawful dedication extent to which the the also arise as to whether Electro-Tech’s destroyed question plaintiff’s of the land. A similar would "beneficial use” "expectation interest” was requirement by improper or its own the dedication requirement The the conditions. failure to meet one of the "valid” building department on a final decision each the four issue indispensable in this conditions thus serves an function case. "valid” had in who asserted that the Like Williamson economically deprived county’s it an viable use of its actions had specifically property, deprived it had has asserted that been Electro-Tech property. right from its An to use and derive income theory precise was of the record confirms that this examination upon significant portion A of Electro-Tech’s case was tried. which profit estimating the amount of case in chief company devoted to was it able new could have realized had been to build its manufacturing facility. view, profits purely determining the value of lost In our speculative impose permit. those issue Electro-Tech point in of Westland was entitled to at that time. building on of the the four valid conditions the issuance any proof compliance failed submit with Electro-Tech to Thus, obligation legitimate was under no conditions. Furthermore, question- building permit. it was building in have able whether Electro-Tech could erected new anyway. building completion The presented date time to bid had run the the contracts plan had its first site time Electro-Tech city. jury prematurely, it was this case was submitted Because Williamson, impossible, accurately determine the as it was any plaintiff’s to which its which the land retained reasonable beneficial extent to use expectation de- interest had been extent stroyed. Opinion of the Court building department probably in the instant case approval would not have resulted of the site plan building permit, or the issuance of a it would any regarding have indeed resolved issue the four "valid” conditions and would have established a upon basis which a factfinder could conclude that improper requirement, "but for” the dedication Electro-Tech would have been able to "derive eco- supra nomic benefit” Williamson, from its land. at 191.34 light record the instant case as well purpose underlying finality
as the the Williamson requirement, reject plaintiff’s we assertion would have been futile to submit an *25 plan building department. amended site finality requirement The second set forth taking ripe Court is that Williamson claim is not plaintiff sought compensation through until a has procedures. state The Court reasoned: The Fifth Amendment proscribe does not property; proscribes taking without just compensation. Nor does the Fifth Amendment require of, just that compensation paid in advance with, or contemporaneously taking; all that " required is 'reasonable, is that a certain and ” adequate provision obtaining for compensation’ exist at the time . . . Similarly, if a taking. provides State adequate procedure an seeking for just compensation, the property owner cannot claim a violation of Compensation the Just Clause until it procedure has used the and been denied just compensation. [Id., pp 194-195. Citations omit- ted; emphasis added.]_ 34 Brickley’s Contrary assertion, to Justice requiring we are not ” "prove 'certainty’ Electro-Tech to city’s that [to a] dedication Post,
was the sole building permit. cause of its failure to receive a simply mandating, 112. We are requirements in accordance with the Williamson, plaintiff of regarding obtain a final decision from the property. its 57 433 Mich
88
op
Opinion
the Court
re-
finality
Supreme Court
reaffirmed
MacDonald,
v
Sommer & Frates
quirements
Co,
supra. Similarly,
the lower federal courts
Yolo
first
requiring
followed suit
have
governmental
decision from
a final
obtain
with-
to have taken
alleged
entity
proce-
utilize the state
compensation
just
out
before
obtaining
compensation
just
dures for
ripe
considered
1983 claim will be
plaintiff’s §
Bateson,
A A
Inc v
Profiles
supra;
adjudication.
(CA 11, 1988);
Lauderdale,
1483
of Ft
850 F2d
City
(CA
Honolulu,
678
Co of
840 F2d
City
Austin v
&
136; 102 L
852; 109 S Ct
9, 1988),
488 US
cert den
Cruz, 818
(1988); Kinzli
of Santa
City
v
Ed 2d
(CA 1987),
484 US
9,
cert den
1449, 1453-1455
F2d
Ochoa
(1988);
2d 861
775; 98 L Ed
1043; 108 S Ct
(CA 1,
Faria,
812,
v
F2d
816-817
Realty Corp
Co,
King
Inc v
801 F2d
Construction
Norco
1987);
v Franklin
(CA 9, 1986);
Anthony
1143,
1145-1146
(CA 11, 1986); Union
Co, 799 F2d
681, 683-684
Idaho,
1236, 1243-1244
F Supp
Pacific R Co v
&
City
Co v
Development
(D
Kaiser
Idaho, 1987);
(D
Honolulu,
926, 938-943
Ha
Supp
F
Co of
F Supp
Berkeley,
1986); Ross
waii,
JBK,
v Kansas
Inc
(ND
Cal, 1987);
820, 840-842
1986).
(WD Mo,
893,
641 F
908-909
City,
Supp
Williamson,
the State of
Like
Tennessee
action for
a cause of
Michigan recognizes
State of
Hart v
art
taking. Const
a de facto
*26
§
(1982); In re
Detroit,
438
488; 331 NW2d
416 Mich
Renewal,
Project,
376 Mich
Elmwood Park
Urban
Detroit, 405
(1965); Foster v
896
311; 136 NW2d
Virginia
of
Acquisition
In re
(CA
6, 1968);
138
F2d
(1982);
602
Park,
153; 328 NW2d
App
121 Mich
Clarke,
504; 280
v
App
89 Mich
Bd of Ed
Detroit
condem-
(1979).35
or reverse
An inverse
574
NW2d
Michigan
Survey
Richardson,
See,
of
generally,
1983 Annual
v
Opinion of the Court
nation suit is one instituted
a landowner
whose
has been
property
taken for public use "without
the commencement
of condemnation
proceedings.”
Hart, supra, p
law,
494.
Michigan
Under
a "tak-
ing”
purposes
of inverse condemnation means
that governmental
action has permanently
de-
prived the
owner
property
possession
or
any
use
Id.,
of the property.
pp 501-502. When such a
taking
occurred,
has
Michigan
Constitution
entitles
the property owner
to just compensation
Id.,
for the
value of the property taken.
494.
Further, Michigan
recognizes
law also
a cause of
action for
cases,
inverse
in
condemnation
like this
one, without a physical
taking of
where
property,
is alleged that
governmental
effect of a
regulation
"to prevent
is
the use of much of
plaintiff’s
...
property
for any profitable
pur
Detroit,
Grand Trunk W R Co v
pose.”
326 Mich
387,
(1949).
392-393;
Generally,
remedy
such cases is a declara-
tion that
regulation
is unconstitutional
Flint,
Schwartz v City
void.
295,
Mich
Delta
(1986);
NW2d 678
Twp
Charter
v Di-
nolfo,
253,
419 Mich
268-269;
hi In light of Williamson and its progeny*, we are persuaded Congress did not 42 intend USC 1983 to be an immediate tort recovery act for person every affected adversely by local agency’s initial zoning building decision. the instant case, because approval conditional of plaintiff’s plan site was disposi- not the final city’s matter, tion of the we hold that plaintiff’s action under 42 USC 1983 was ripe not for adjudi- cation. Accordingly, we affirm the decision of the Court of Appeals._ complaint] preventing amended . . . piece is the of the use of a [it] paying anything Additionally, contesting without it.” for verdict, plaintiff’s counsel, the defendant’s motion for directed for purposes appeal, theory reiterated the of inverse condemnation. In foregoing, plaintiff
view
attempted
we conclude that
pursue its inverse condemnation action in state court.
obligation
pay just compensation
Since the
arises under the
tort,
immunity
constitution and
the
not
doctrine does not insulate
liability.
Waterways Comm,
from
Tamulion v State
App
(1973);
50 Mich
Sanfilippo
NW2d 828
see also
v Santa
Co,
(ND
1976) (the
Supp
Cal,
Cruz
415 F
doctrine of
governmental immunity applies
certainly
to tort actions and
would
apply
brought
provisions guaran
"actions
under constitutional
teeing just сompensation
public takings
private property”).
for
noted, however,
It should be
did not raise this
application
inverse
appeal
condemnation issue in its
for leave to
(1988).
this Court.
Brickley, required capriciously arbitrarily Westland prop- portion to cede a plaintiff Electro-Tech as a condi- compensation city without erty result, As a building permit. obtaining a tion of interest of a deprived due process. without miscon- seriously majority opinion,
In my States the United from precedent recent strues that Electro- First, concluding Court. Supreme "final deci- want of a unripe Tech’s claim right regarding Electro-Tech’s from the sion” unjustifi- has property, majority to build on its set forth requirements ripeness ably expanded Comm v Planning Regional in Williamson 172, 190- City, *29 of Johnson 473 US Bank Hamilton (1985). Second, 126 3108; 87 L Ed 2d 191; 105 S Ct right improve treating Electro-Tech’s concluding benefit and aas property protected has not identified Electro-Tech that its failure to demon- interest because entitlement,” claim "legitimate strate v teaching of Nollan disregarded the has majority 833-834, n Comm, 483 US Coastal California (1987). 3141; 97 L Ed 2d 2; 107 S Ct
I. INTRODUCTION violations, of due allegations Regarding aptly Stevens has observed: Justice petitioners] enough to note It is not [the the Fourteenth Clause of rely the Due Process three Amendment, is the source of for that Clause First, it protection. kinds of constitutional different incorporates Bill in the specific protections defined v Dissenting Opinion by Bkickley, Second, Rights. . . . it contains a substantive component, sometimes referred to as "substantive process,” due arbitrary govern- which bars certain "regardless ment actions of the fairness of the procedures it referred Third, implement used to them.” . . . guarantee is a procedure, of fair sometimes "procedural process”: to as due the State execute, may not imprison, or fine a defendant giving trial, without him a may fair nor it take property safeguards. providing without appropriate procedural Williams, v 327, 337; 474 US [Daniels (1986) 662; (Stevens, S Ct 88 L J., Ed 2d 662 concurring).]
A claim governmental that a land-use decision has worked deprivation violation of the Due Process Clause may fall into one or more of these categories. Into Justice Stevens’ first classification, for example, fall asserting claims governmental action has resulted a "tak- ing” of property without just compensation violation of the Fifth Amendment aby physical occupation of the landowner’s Loretto property. Teleprompter Manhattan Corp, CATV 458 US 434-435; (1982). 102 S 3164; Ct 73 L Ed 2d 868
A landowner may also assert that a land-use regulation has denied the landowner all use of the property even though there is no physical inva- sion. Such a claim could fall into Justice Stevens’ first if category the landowner complains regulation has effected a "taking” of the property, English First Evangelical Lutheran Church of Glendale v Angeles Co, Los US 107 S Ct 2378; 96 L Ed 2d (1987), or, possibly, into the *30 second if category the complaint alleges not a "taking for which the Fifth Amendment requires just compensation” but that a regulation "goes so far it has the same effect as a taking by eminent domain is an invalid exercise of [and] 433 Mich Dissenting Opinion Brickley, power, police Due Process Clause of the violative Williamson, su- the Fourteenth Amendment.” of added). (emphasis pra, accomplish the government regulation, to Should the wish through proceed must goals of such and, power, of its eminent domain the exercise of course, any compensation property for pay just regulation goes a too remedy taken. far, process theory, "just is not under the due regulation, compensation,” but invalidation damages. appropriate, actual if authorized [Id.] "regulatory Regardless a of the manner in which taking” framed, of as violation claim is whether Compensation Amend- of the Fifth the Just Clause of the Four- or of Due Process Clause ment teenth ripen Amendment, until does not claim regard- received a final decision the landowner has ing application regulation or ordinance particular piece property. Williamson, supra; Co, MacDonald, Frates Yolo Sommer & (1986). 2561; L Ed 2d 285 477 US This is because 106 S Ct taking depend
regulatory claims property upon an interference with the use represent practical equiva- drastic is so as taking. has Until a final decision lent of a such impossible rendered, it is determine been interference. extent this challenging
Alternatively, owner may particular process advance a due land-use decision regu- separate from the and distinct claim process latory taking in the claim discussed due paragraph preceding owner’s —that process rights interfered have been otherwise due arbitrary governmental ac- irrational with process regulatory due tion. In contrast type claim, claims, due of substantive *31 95 v by Dissenting Opinion Brickley, falling into Justice Stevens’ second cate squarely require proof "does not that all use of the gory, Geisse, Bateson . . . property has been denied (CA Herring 1300, 9, 1988), 857 1303 quoting F2d (CA Co, 9, 1988), ton v Sonoma 834 F2d 1498 — (CA 9, 1988), 857 F2d 567 cert den US modified (1989).1 Rather, —; 1557; 103 L Ed 860 109 S Ct 2d government arbitrary "the deliberate and abuse right an individual’s to substantive power violates Walker, Bello v 1124, 1129 due 840 F2d process.” (CA 3, 1988), 176; cert den 488 US 109 S Ct Daniels, supra).2 (1988) 102 L 2d 145 (relying Ed II. THE OF THE SUBSTANTIVE LEGAL FRAMEWORK
DUE PROCESS CLAIM deliberate, It is well established irrational guar- governmental process action violate due may in Daniels and Justice antees. Both the majority emphasize aspect Stevens’ concurrence this Due Process Clause. As the Daniels ob- majority served,
guarantee process applied of due has been to delib- dеprive erate decisions officials to life, person of liberty, property. . . . Due [T]he Clause, Magna Process like its forebear " Carta . . . was 'intended to secure individual arbitrary powers from the government.’ exercise of the barring govern-
”... And certain regardless ment actions of the fairness of the procedures implement used to them ... it serves prevent governmental power being "used from 1 governmental involving Nor are such claims restricted to decisions 1983) (CA See, Johnson, e.g., land use. Wilkerson v F2d denied). (the right may arbitrarily to a barber’s license not be purposes opinion, generally type of For of this I will refer to this process type claim as a "substantive due claim” and to the of due process preceding paragraph "regulatory claim described in the as a due claim.” 433 Mich Dissenting Opinion Brickley, J. [Daniels, supra, . purposes oppression,” . . original.][3] Emphasis in the 331.
Applying theory context, the in the land use Appeals for the Third Circuit Bello Court of grant court’s of sum- reversed the federal district mary judgment in favor of council members plaintiffs where the *32 presented fact finder could evidence from which a members,
reasonably acting that certain council conclude capacity as officers of the munici- their process by pality improperly interfered with building permits, municipality which the issued they partisan political and did so personal application reasons unrelated to the merits of the [Bello, p permits. supra, for the 1129.] Looking general Daniels, court on the relied arbitrary rule that "the abuse of deliberate government power right violates an individual’s process.” p Bello, substantive due 1129. The court distinguished an earlier decision from the same zoning regulation circuit in to held not which was deprive process. of substantive due Twp, Shrewsbury Resources, Pace Inc v 808 F2d (CA (1987). 1987), 3, 1023 cert den 482 906 In US complaint alleged suggesting Pace, no facts zoning arbitrary, and it did "not present developer ning.” involving a case aimed at actions plan-
for reasons unrelated to land use Bello, 1129. federal
Other
courts have also found that a
a
permit may give
denial of a land
use
rise
e.g.,
process
See,
substantive due
claim.
Scott v
3
527,
Taylor,
1908;
See also Parratt v
451 US
101 S Ct
68 L Ed
(1981) ("there
that,
governmental
2d 420
undertaken with a full
of
are certain
actions
even if
are,
panoply
procedural protection,
in and
themselves,
process”).
antithetical
to fundamental notions of due
(Blackmun, J., concurring.)
97
v
Dissenting Opinion
Brickley, J.
(CA
Co, 716 F2d
1409,
4,
Greenville
1418-1421
1983)
caprice
of abuse of discretion or
(allegations
permit
refusal
issue
zoning administrator’s
claim); Southern
process
due
stated substantive
Driggers,
Fund v
Cooperative Development
696
(CA 11, 1983),
463
1347,
cert den
US
F2d
1356
(1983) (substantive
process
due
is violated
are
requirements
imposed
unauthorized
where
Afton,
v
Littlefield
applicant);
permit
1986)
(CA 8,
an
596,
(complaint
аlleging
F2d
an unconsti-
imposition
arbitrary
capricious
application stated a
permit
tutional condition on a
claim).
due
substantive
addition,
in the federal
judges
even those
disfavoring
pro-
substantive
due
appeals
courts of
in the land use context have admitted
cess claims
cases.
appropriate
of such claims in
viability
Environments,
Estabrook,
See Creative
Inc
1982)
(CA
(the
plaintiif
was not
F2d
develop-
due
the denial of the
process by
denied
plan-
the town
plan
dispute
ment
where
with
"not
with fundamental
ning agency was
tainted
*33
animus,
or
procedural
irregularity,
racial
(CA
Co,
like”); Lemke
469,
8,
v Cass
846 F2d
472
1987)
banc)
(en
(Arnold,
J., concurring)
(stating
that
claims should
process
substantive
due
limited to
land
challenged
cases
which
use
decisions
"no
whatever
bearing
relationship
Corp
Coniston
v
matter”);
pending
merits of the
Estates,
(CA
Village of Hoffman
461,
844 F2d
467
1988)
J.) ("Of
7,
(Posner,
zoning
if a
decision
course
specific
is based on considerations
that violate
invalid;
it is
but
in all
guarantees,
constitutional
deny
other cases the decision can be said to
sub-
irrational”); Chip-
if it
process only
stantive due
Lebanon, 712 F2d
Enterprises,
lin
Inc v
1983)
(CA
1524,
1,
1528
that substan-
(suggesting
"rec-
tive due
claims
be viable where
process
may
433 Mich
Dissenting Opinion
Brickley,
rights
constitutional
are
ognized fundamental
Estabrook, supra).
abridged,” quoting
significant
the United
majority
The
finds it
such an
Supreme
employ
States
Court "has
yet
involving
wrongful
in cases
denial
approach
Ante,
Vil-
However,
p
use
76.
permit.”
land
Co,
of Euclid v
365; 47
lage
Realty
Ambler
272 US
114;
(1926),
71 L
Court considered
S Ct
Ed 303
The
process
zoning
a due
attack on a
ordinance.
rejected
challenge
ground
Court
on the
municipality
the reasons advanced
on be-
zoning
half of the
provisions were
sufficiently cogent
preclude
saying,
from
as it
us
can
must be said before the ordinance
unconstitutional,
arbitrary
relation to the
be declared
provisions
clearly
that such
are
unreasonable,
having
no substantial
health,
morals,
public
safety,
or
[Id., general
welfare.
395.]
times,
In more recent
the Court has considered a
municipal
prohibiting
claim that a
ordinance
exca-
vations below a certain depth
process.
violated due
The Court held that
the failed to sustain
proving
its burden
the ordinance
to be an
Gold-
invalid exercise of
police power.
the town’s
Hempstead,
blatt v Town of
594-596;
369 US
(1962).4
987;
82 S Ct
accepted proposition the enactment of an zoning irrational ordinance may deny a landowner Id., 157-159, due process. pp substantive (Levin, J., concurring). majority quoted exten- Euclid, supra, from sively analysis claim, plaintiffs’ process substantive due which separately plaintiffs’ was considered from the tak- ing claim.5
hi.
electro-tech’s
due
claim in
LOWERCOURTS
Electro-Tech’s
fourth
complaint
amended
ade-
alleged facts to
quately
support
its substantive due
process claim. At the close of proofs,
Judge
Circuit
Giovan determined
if in fact
Westland imposed
requirement
the dedication
as a
then,
condition for obtaining
building permit,
a
as
law,
a matter of
Electro-Tech had established
constitutional
violation for
of 1983.6 The
purposes
§
reversed,
Court of Appeals
finding that “plaintiffs
Cryderman
City Birmingham,
App
See also
171 Mich
23-
(1988)
(following Kropf).
On rights deprived: property were that its "calculated, gov- abuse of deliberate [D]ue violating guilty power,” ernmental plaintiff’s right constitutionally to sub- protected Williams, [Citing v process. Daniels stantive due supra.] DUE THE OF ELECTRO-TECH’S PROCESS
IV. RIPENESS CLAIM ripeness require- my opinion, In the Williamson present an to our considera- ments do not obstacle substantive due tion of the merits Electro-Tech’s process claim.
A Initially, Electro-Tech’s sub- I note because require proof process claim does not stantive due of quirement taking, uncompensated re- an Williamson aggrieved property seek that an owner compensation inapplicable. supra, Williamson, is pp 194-195. obviously,
Perhaps the Williamson final de- less requirement inapplicable. is also William- cision supra, principled pp son, 190-191. I that a believe finality apply, apply, decision to requirement requires beyond us label to look use claim to attached to a constitutional land requirement policy underlying the na- governmental under ture of the conduct attack. requirement my opinion, finality must be In alleges applied only a landowner’s claim when Dissenting Opinion Brickley, regulatory taking that a has oc- regulatory requires A curred. claim a show- ing application regulation, usually that the of a facially legitimate police power, exercise has caused an interference with the use of represent practical is so drastic as to equivalent taking, though of a even there has been physical property. Although no invasion of the might such a claim be framed in two different ways, requirement finality appli- the Williamson plain- Williamson, cable both instances. challenged zoning tiff a local ordinance under both *36 Taking the Clause of the Fifth Amendment and under the Due Process Clause of the Fourteenth contending Amendment, application in both claims that the property of the ordinance to its had practical equivalent taking. resulted in the Because the of a request had failed to vari- regulations ances from the which formed the basis planning of plaintiff’s the commission’s denial of the application,
land use the Court found regula- that it could not determine the effect of the plaintiff’s prop- on Id., tions the use and value of the erty. p 190, n 11. determinations, Such the reasoned, Court cannot be made "until the admin- agency istrative final, has arrived at a definitive position regarding apply regula- how it will the particular question.” tions at issue to the land in Id., 191. See also Hoehne Co, v San Benito (CA 1989) (Williamson requirements F2d 529 applied regulatory taking to a due claim necessary govern- when it was to determine the position acceptable ment’s as to an use of the plaintiff’s property); Development Shelter Creek Corp (CA 1988) City Oxnard, 838 F2d 375 (same). Supreme case,
In a later the Court clarified the application finality require- of the Williamson 433 Mich Brickley, Opinion Dissenting property supra, p 344, owner Co, a In Yolo
ments. rejection municipality’s alleged of its property deprived plan subdivision ” " plaintiff’s The failure use.’ 'entire economic other some final whether determination secure permitted development led the would be sort taking plaintiff’s regulatory reject Court in several earlier Court observed The claim. cases, including Williamson, question whether to reach the requires we declined monetary remedy to re- Constitution dress some takings regulatory records because the prop- us uncertain whether in thosе cases left erty this Likewise, in in fact been taken. at issue had holdings case, below leave of both courts development open possibilitythat will be some again permitted, re- leave us doubt and thus appel- question garding the antecedent whether pp supra, property Co, [Yolo taken. lant’s has been Emphasis added.] 352-353. pur- requirement finality two related serves regulatory poses It cases. enables applicable judge jury to determine how applied particular piece regulations will resulting whether the inter- decide so as to consti- severe ference with *37 equivalent taking. practical of Neither tute determination case, in the instant need be made process plaintiff’s claim, substantive due because by the landowners Wil- unlike that advanced regulatory Co, Yolo is not liamson and process-claim. due apply merely did not
The defendant in case facially plaintiff’s property a valid ordinance similarly regulation requiring all situated builders property for the widen- to dedicate to Electro-Tech ing city so, had it If defendant done of streets. Campbell Co by Dissenting Opinion Brickley, might have made sense under Williamson insist attempted that Electro-Tech have at least to ob- by showing any tain a further determination resulting expan- increased traffic from the burden existing building would sion of its be insufficient to requirement. justify However, the dedication no present Rather, such ordinance existed in the the case. city pulled requirement council dedication imposed arbitrarily out thin of air and in a applicable only. resolution resolution, to Electro-Tech This in required
like the variance decision applica- Williamson, was a concrete determination particular piece property. ble to a Moreover, Electro-Tech’s due claim does require proof property has been words, "taken.” In other Electro-Tech does not city’s have to show that action resulted in physical occupation property either a of its or a property restriction on the use of its which was so represent practical equivalent drastic as to "taking” physical property. an actual of the Elec- only prove deprived need it was tro-Tech its rights property as a result of its refusal submit to the unconstitutional condition deliber- ately imposed arbitrarily by city council. plaintiffs Co, in Williamson and Yolo on the alleged property hand, other that their real had in effect been taken action. The Su- preme required plaintiffs Court those to obtain regarding application final decisions regulations particular pieces to their in order to enable the finders of fact to determine alleged whether interference with each plaintiff’s real was in fact so severe as to taking. constitute a
(Nor any further decision neces- sary even to determine whether the condition was, fact, itself violative of the Fifth Amend- *38 104 433 57 Mich Dissenting Opinion Brickley, complied actually ment. Had with the the Electro-Tech requirement in dedication order obtain physi- permit, permanent there is no doubt occupation cal of Electro-Tech’s land would have permit supra Nollan, resulted. See condition [a application to the which unrelated merits the occupation permanent physical threatened a compensation property landowner’s without was Watson, unconstitutional]; Parks v 716 F2d [same].7) [CA 9, 1983] 650-654 governmental in Because the action Nollan city, nearly significant it identical to the actions of the Supreme in Court Nollan did requirement, not even mention the final-decision despite contemporaneity its with decision ren- English, a landowner dered First which taking alleged regulatory in which the Court requirement explicitly found final-decision applicable. case, the In the instant final-decision requirement implicated Electro- is not because deprived process it was due claim—that Tech’s its irrational arbitrary right improve its any way not in action —does require illegitimate prove admittedly Electro-Tech to imposed by city actually
condition restriction on Electro- resulted Tech’s such severe ability as to violate to use independent right not to have its Electro-Tech’s compensation.8 just property taken without Long analysis, applying see cases a similar For Supp Lighting Cuomo, F Co v Island 1987) (ND (the satisfy finality NY, failure to requirement claim but barred unconstitutionality condition is discussed in of the dedication v(b). section imposed equally If, example, had instead council $1,000 to a that Electro-Tech contribute condition unconstitutional local required party, to show that political Electro-Tech would not be $1,000 actually paid party. Dissenting Opinion by Brickley, J. substantive due claim which was "not *39 dependent on the actual economic effect” of upon land use decision plaintiff’s Long property); Country Grove Club Estates Village Long (ND 1988) Grove, 640, Ill, 693 F Supp 657-658 (applying requirement finality taking challenge but not process substantive due claim in arising a suit from the denial of a land permit). use
Although a final decision test has been applied in at least one case from the Appeals Court of Circuit, the Ninth I applica- find that basis for the addition, tion to be flawed. In process the due claim in that distinguishable case is from that raised by Electro-Tech.
In Herrington, the court relied on an earlier decision from the same circuit for the proposition the finality requirement applies to substan- tive process Id., due claims. 857 F2d 569. In Kinzli (CA Cruz, 9, 1987), v Santa 818 F2d 1449 a differ- panel ent of the court found a lаndowner’s sub- process stantive due claim premature for want of a Id., final decision. 1456. p Although the nature of process substantive due claim is not discussed detail, it appears from the district court’s pub- lished opinion, Cruz, Kinzli v Santa 620 F Supp (ND Cal, 1985), to which the Appeals Court of details, Kinzli, referred for further 818 F2d plaintiff’s due process claim was in fact the sort of regulatory taking process due claim also raised in Williamson. challenge
Plaintiffs do not facially Measure as invalid or as an arbitrary City’s police use of the power; they challenge rather the Measure on the grounds applied that as to their it de- prives 620 F economically [Kinzli, them of an viable use. Supp emphasis 616. supplied.] Additional Mich Dissenting Opinion Brickley, Herrington court did not explain why
The in Kinzli to a regula- applied finality requirement process apply due claim should tory nontaking due claim. substantive support compelling analysis policy absence Kinzli, I extension of am unable to concur Herrington’s analysis point.9 on this with
B requirement application the final-decision not only misdirected proposed by majority it because assumes Electro-Tech erroneously ante, "taking,” demonstrate but also must an requires perform because Electro-Tech in futility imposes upon exercise *40 the issue unjustifiably high proof an burden of causation, which, effect, require in would a an "entitlement” to Electro-Tech establish a which I believe should not permit, requirement See applied in case. section v(A). majority The states: primary purpose in man- Supreme Court’s appropriate from the ad-
dating a final decision the body was to establish existence ministrative a it "taking” the to which has harmed and extent Thus, by a decision the plaintiff. while final the probably the building department instant case approval the site not have resulted would building permit, it would or the issuance of plan Herrington— observe, however, requirements applied that the 9 I plan application rejected development an for a variance —did and attempt plaintiff’s present the obstacle there because an Id., Assuming 857 F2d 569. comply have been futile. therewith would requirements Herrington in the applicability arguendo the by case, Electro-Tech secure it that further efforts is clear instant permit dedicating have been futile. their land would without Dissenting Opinion by Brickley, any regarding issue four have indeed resolved "valid” conditions and would have established a upon which a factfinder could conclude basis improper requirement, "but for” the dedication Electro-Tech would have nomic benefit” from its land. been able "derive eco- Williamson, supra at 191. light of the record in the instant case as well purpose underlying
as the requirement, finality the Williamson reject plaintiff’s
we assertion wоuld have been futile to submit an plan building department. amended site [Ante, pp 86-87.] true,
It as the majority suggests, "ultimate regarding decision building requests lies with the building department. . . . building [T]he department is responsible for examining the final and, site building plans . . . if everything is approved, Ante, ultimately issuing permit.” pp 84-85. But building department has no discretion to override a condition imposed by city council. Its sole function is to determine whether plans the final conform to require- ments of the building code zoning ordinance with such modifications as have may ap- been proved city council or board of zoning appeals.
The head of the building department, Robert Fritz, testified that "we do not make the final decision,” and that the ultimate decision is made "[zoning appeals], board of Planning Com *41 mission or City Council.”10 He said he would en position you employed In what are Q. there? Building A. I’m the Director. responsible A. building construction, I’m for all the and electrical, plumbing, hearing coordinates, zoning, everything goes City
that building. on within the for you jury, building Can tell requirements Q. the as far as Mich 57 by Dissenting Opinion Brickley, requiring city the dedi decision council’s force the opinion, parcel was, in his the whether cation of "right wrong,” the and on cross-examination or responsib part explained of his that it not was planning question ility1 A a condition. such City building, policies the of Westland who forms the of for making ture? restrictions, things contingencie of that na- [sic] zba, Planning City or Commission Council. A. It’d either be Building you’ve any the Director Q. time since been Is there together City gotten departments the have within various that to your city? buildings require policy you a on what would form recommending body. fully are not a are a We A. We are—we recommend, body. the final but do not make We we decision decision. Q. is . . . Building, Engineering We [sic] Planning. is A. ... the Department, Building Department, Engineering Q. the The Planning they’re recommending Department, recommending all bodies. the They’re bodies. A. City Q. whom? And ultimate decision made City Planning zba, Commission or the Council. A. Q. three those have to make decision? All of bodies No, not all of them. A. Any Q. how that work? one of the three or does them, them, possibly possibly of three of two A. Either all just of them. one surrounding particular Q. case the circumstances Under 11th, July though, resolution to voted Council contingent upon things including approve dedicating plan certain site portion Approximately property. two weeks Building City you Director of Westland. later Is that became true? That’s true. A. resolution, Q. when the owner Electro- Based on [sic] building permit, proceed his wanted to in order obtain Tech he ment go depart- through your through the still have to would — you were director of at that time? A. Correct. Q. Okay. particular time circumstances At that under those placed you wrong contingency was or im- if proper felt resolution, City had made that because Counсil you Building it as Director for the enforce would Westland? A. Yes. *42 Electko-Tech Dissenting Opinion Brickley, J. building department similarly examiner for the building department testified that would not building permit twenty-seven- issue a unless the parcel foot had been dedicated.12 It is immaterial that Electro-Tech "failed to (either plan submit a final site to the council or to building department) reflecting the pliance at least”13com- unobjectionable the four
with conditions. testimony city employees clearly of the estab- lishes that it would have been futile for Electro- building permit Tech to do so and that no would complied have been issued unless Electro-Tech had remaining illegal require- with the dedication assuming ment. Even for the moment that Electro- comply Tech in*fact failed to with the four unob- jectionable support conditions, there is no for the obtaining conclusion "that permission city’s yet to build had not been com- pleted.”14 city
From the fact that council "condition- ally” approved plan subject the site to the uncon- requirement, majority stitutional dedication right wrong your opinion? Whether that’s Q. A. Yes. . . . follow-up question you asked, Just to the last Q. were contingencies placed plan your when those are on a site is it responsibility question those? A, question No. To the restrictions? contingencies? TheQ. contingencies, A. The no. No. Planning Department your city places If the Q. a contin gency, get property, such as the dedication of 27 feet of in order to building permit approves and the Council that and adopts recommendation; Building Department will building permit issue a if that 27 feet is not dedicated or that portion is not dedicated? A. No sir ... . 13Ante, p 84.
14Ante, p 85. 433 Mich Brickley, Dissenting Opinion yet matter had not been "the entire
concludes that finally would have and that Electro-Tech resolved plan it could before an amended site to submit begin building.” council’s Ante, 85. But condition, on on the unconstitutional decision *43 approval depended, The was conclusive. which amendment majority, requirement, by contemplated and resubmission compliance the dedication with
absent no been to avail. would have agree sum, ultimate deci- I cannot that improve ability regarding its to sion Electro-Tech’s building department. vested in building only of the de- "ultimate decision” The partment building permit— to issue a —whether nondiscretionary The and nondecisional. was building department’s to decide sole function was building plans final conformed whether the they zoning may have ordinance as been code and by particular the board modified zoning appeals case building The or the council. department authority to the June had no revise building city permit nor to issue a council resolution property. Uncon- absent dedication conclusively at trial showed troverted evidence permit building would never have that a been contingencies required by if all issued even other the tion other than the dedica- Westland Council requirement had been fulfilled. finality requirement
Moreover, if the Williamson
require
broadly
a decision
were construed so
as
building department
body
from the Westland
—a
regarding
authority
discretionary
with no
West-
illegal
dedication of land—
land’s demand
abandoning
core of its
Court
the
proper
would
legal inquiry
a final relevant
as whether
Ill
Dissenting Opinion
Brickley,
city policy
context of this
was established
embarking, improperly,
instead be
and would
case
purely
inquiry
factual
which
on an extended
duplicates
jury.
already
undertaken
plaintiffs
require of
if we were to
It is true that
they prove
of law that the defen-
as a matter
possible
wrongful
only
cause
is the
conduct
dant’s
given
resulting
case, then we
in a
harm
every verdict unfavorable
rest assured that
could
majority
justified. The
defendant would be
to a
willing
appears
such an
hold Electro-Tech to
insisting
proof by
unprecedented
standard
certainty that
to a
Electro-Tech demonstrate
solely
permit
is attributable
failure to receive a
requirement
requirement.
the dedication
plaintiff,
proof
not-
from the
a standard of
such
withstanding
finality requirement of William-
special
uniquely justified by
son,
context
is not
as
"[F]ederal tort statutes such
§of 1983 actions.
*44
They are
1983 are not self-contained.
42 USC
background
against
law tort
a
of common
enacted
principles
damages.
governing
. .
.
causation and
applicable
principles
to federal
therefore
Those
are
civil-rights
them
unsuitable to
tort cases unless
(CA
Augle,
157,
161-162
. . . .” Taliferro v
F2d
J.).
1985) (Posner,
7,
v Conners-
See also Parrett
(CA 1984),
Indiana,
cert dis
ville,
737 F2d 690
(1985),
Appeals
in which the Court of
[n]othing any in of these cases proving of his plaintiff if succeeds in a violation rights, principles used to deter- constitutional the that the viola- mine whether he has demonstrated seeking which he is injury the tion caused applied those damages should be other than (Posner, J.).] [Id., p ordinary tort cases. Mich Beickley, Dissenting Opinion jury causation, case, issue on the of The in this had the burden that Electro-Tech was instructed proving of Westland, Defendant, knowingly City the of that imposed obtaining a of the Plaintiff a condition as give twenty-
building up the Plaintiff permit that City. the Or to state feet its seven another of re- City they prove must way, Plaintiff building permit grant fused unless the Plaintiff dedicated twenty-seven feet of charge. no to the Defendant at of part of on the complained the act [And] proximate dam- cause of the the Defendant was proxi- ages by the An act is a suffered Plaintiff. damages damages natu- if the are a mate cause of consequence probable of the act. rаl objection made no The Westland particular, never ar- instruction. has gued that trial court’s definition of causation consequences” probable in terms of "natural and any way incom- case or was unsuitable requirement patible set forth in Monell with the Dep’t Services, 694; 98 S Ct 436 US Social (1978), municipal 2018; 56 L 2d 611 Ed "moving policy or force” behind custom15 the constitutional violation. proposed application majority’s the Wil- finality requirement
liamson would transform question question of fact for of causation from a question jury law for the court. into a However, not the court’s function to conclude it is requirement dedication caused whether prin- any do common-law tort harm. Nor *45 ciples requiring prove justify "cer- Electro-Tech to proof beyond tainty” any other standard of 15See n 16. v Dissenting by Opinion Brickley,
given
by Judge Giovan
his instructions
circumstances,
Under some
it
jury.
may
proper
proof
for the Court to reexamine
of causation in a
But,
tort cause of action.
reasonable
jurors
"[i]f
disagree,
could
neither
the trial court nor
this
Court has the
authority
judgment
substitute
Co,
for that of the
Matras v
jury.”
Amoco Oil
(1986)
675, 682;
Mich
The proposition that Electro-Tech must prove verdict, Westland did move for a directed but did not do so on (let grounds inadequate evidence of causation alone a lack of a Rather, by building department). "final” decision the Westland West- Monell, land, citing supra, argued that more than one instance of wrongdoing necessary unconstitutional policy in order to find the official required municipal liability or custom under 1983. The § judge responded by quoting directly trial from Monell: altogether wrong "That consideration is absent where the done, all, municipal if done at is done makers decision themselves.” exactly And that’s what we have here .... And no less body in an official City City acting than the Council itself. Here’s a Council capacity imposing granting this condition for
building permit. example There couldn’t be a clearer of munici- pal themselves, making by decision the decision makers highest legislative authority City that the had. There could not expression making policy. be a clearer of their own decision attempt impose liability City This is not an on the [on who in employee, basis of some low level acts] individual rights. some random act violates someone’s civil This is virtu- itself, ally all, wrong making clearly if it was at of a legislative decision, you clear or executive whichever want [sic] it, affecting rights. to call the Plaintiff’s argued The defendаnt also on its motion for directed verdict that proving damages inadequate. Electro-Tech’s means of issue was unnecessary were The latter presented appeal Appeals, in the Court of which found it ruling to issue a on the issue. *46 433 Mich by Dissenting Opinion Brickley, approval for the but received would have essentially upon calls condition unconstitutional to the an entitlement to Electro-Tech permit. demonstrate following explained section, I do in the As requires to Electro-Tech the law not believe showing. make such DUE PROCESS THE MERITS OF ELECTRO-TECH’S
V. CLAIM Having claim is Electro-Tech’s concluded that ripe, First, the merits of the claim. I turn now process claim substantive due while Electro-Tech’s depend an demonstration not antecedent does that a may occurred, it nevertheless be has protected identify constitutionally necessary was de- of which Electro-Tech interest process. necessary prived Second, it is without due governmental action whether to determine arbitrary property interest was affected the which irrational. A Bello, did not look see whether court protected property liberty plaintiffs had a or holding law, instead that "the interest under state arbitrary abuse deliberate right power individual’s substantive violates an supra, p viability process.” Bello, 1129. The due the plaintiff’s case did claim that constitutional depend legal determination on an antecedent "legitimate plaintiff of enti- had a claim permit. Rather, the court held that tlement” the jury whether the interference must determine right plaintiff’s to build on his land was with permit requirement by legitimate or occasioned v Dissenting Opinion Brickley, J. an illegitimate governmental use of power by the issuing body.17 courts, however,
Some federal augmented have the Bello analysis with the preliminary inquiry whether had established the existence of a state-created liberty property right entitled e.g., Scott to federal See, constitutional protection. Co, Greenville 1983) (CA 716 F2d *47 (the applicant’s interest in a building permit was Rymer Douglas Co, v protected); 796, 764 F2d 801 (CA 1985) (real 11, Yale Auto Parts v property); Johnson, (CA 1985) 54, (there 2, 758 F2d 58 was no property interest in a certificate of operate use to Salem, Sullivan v Town of a junkyard); 805 F2d (CA 1986) 81, (there 2, 84 was a protectible inter- Tarry Corp est in a certificate of occupancy); Dean v Friedlander, (CA RRI 2, 826 1987); F2d 210 Corp Realty Village Southampton, v of 870 F2d 1989) (CA 2, (wide 911 discretion permit a deny under local law defeated a claim of inter- property est). See also Johnson, Wilkerson v 325, 699 F2d (CA 1983) 6, (the 328 applicant’s interest in a Packish v McMur- barber’s protected); license was trie, (CA 1983) 23, (there 697 1, F2d 25 was no protectible interest in indemnification for injuries).
If such a preliminary
inquiry into the existence
of a constitutionally
protected
interest were re-
quired in
case,
it would
paramount
be of
importance
in describing Electro-Tech’s
interest
building on its land to determine whether
Chiplin Enterprises,
Lebanon,
17 I
thus find
Inc v
of
712 F2d
(CA 1, 1983),
by
1524
Appeals,
relied on
and the Court of
help
city.
light
Nollan,
no
of Bello and
discussed in subsec
b, below, Chiplin’s
motivated,
tion
improperly
assertion that an
bad-
denying
faith
building permit
refusal to follow
state law
raises no
questionable. Chiplin, pp
more than a matter of local concern is
1527-
So, too,
1528.
is its conclusion that such action does not involve the
abridgement
quoting
rights
Id.,
1528,
p
of "fundamental constitutional
. . . .”
Environments,
(CA
Estabrook,
1,
Creative
Inc v
680
822
F2d
1982),
(1982).
cert den
Thus, it was immaterial Nollan whether legitimate presented claim enti- had Nollans tlement a Court was building permit. Presumably, such showing made, have since the could not been
willing to assume that California enjoyed enough discre- Coastal Commission broad request for a to the Nollans’ tion have denied permit altogether. Id., 835. compels my opinion, the conclusion
In Nollan right improve property that Electro-Tech’s v Dissenting Opinion by Brickley, subject legitimate permitting requirements18 city’s admittedly illegitimate was violated imposition of the dedication condition.19 The dis- pute parties between the whether Electro-Tech actually complied remaining with the four contin- gencies light need not be resolved of Nollan. right
Because Nollan makes clear that
property
build on one’s
is not to be treated as a
government
puzzling
benefit, it is
that some courts
apply
government
have continued to
benefit/
analysis
entitlement
in similar cases after
Supreme Court’s
decision
Nollan and without
mentioning
City,
that case. See Carolan v Kansas
(CA 1987); Spence
F2d 178
Zimmerman,
(CA
1989);
Realty, supra.
F2d 256
RRI
In
Realty,
court,
RRI
without
Nollan,
reference to
by pre-Nollan
considerеd itself bound
Second Cir-
precedent
apply
government
cuit
benefit/enti-
permit
tlement test in a land
case;
use
it neverthe-
questioned
type
less
inquiry:
the wisdom of this
It is not readily apparent why
regulation
land
applications
cases that
involve
regulators
to local
applied
have
the Roth entitlement
inquire
test to
whether an entitlement
exists in what has been
applied
variance,
zoning
for —whether a
a business
license,
building permit
or a
simply
—instead
recognizing the
indisputable
owner’s
property in-
terest
local
in the land he
asking
owns and
whether
government
has exceeded the limits of sub-
stantive due
in regulating
plaintiff’s
use of
his
by denying
application
arbitrarily
capriciously. [RRI,
supra, p 917.]
change
cases, however,
These
do not
the fact
opinion,
my
right clearly
rises to the level of a
interest under state law.
express
19 I
opinion regarding
decline to
applicability
an
analyses
involving
Roth-based
benefit
to cases
more than
right
property.
to build on one’s own
*49
recent very ground tive due claim on legitimate claim "did not have a Ante, . . entitlement permit . .” building n 22 (emphasis original). view, read In the I have footnote majority’s Id. I Nollan "too expan- am not broadly.” Clearly, right "the to build on one’s sively interpreting legitimate permitting . . subject[] . to include some interest broader requirements” *50 Electro-Tech Dissenting Opinion Bkickley, J. right on one’s different from to build than or require- legitimate permitting property subject to majority’s supra, p 834, Nollan, n 2. The ments. alleged my explanation for overbreadth of reading 2, as well as for the inconsis- of footnote simply, tency above, is, is a that "Nollan described p explanation Ante, 77, n 22. case.” This propo- acceptance of the a tacit incredible includes right property to build on one’s sition that legitimate permitting requirements subject to property happens only benefit when in framework of a Fourteenth to discussed be process property claim, but is a Amendment due interest when considered
in of a Fifth the context similarity The basic between Amendment claim. Nollan, however, is too close this case and opinion, glossed unspoken, my and, an over assumption. Despite majority’s unjustified plaintiffs in enti- that the Nollan "were statement p land,” ante, 77, n 22 on their tled to build original), suggestion (emphasis there is no plaintiffs needed show an enti- Nollan that the explicit language indeed, tlement; there is p contrary. Nollan, 833, n 2. legitimate may
It be true that a entitlement gov- properly inquiry, in a true when undertaken question case, The is a of law. ernment benefit legal disposition question, however, re- of such preliminary quires factual the court to resolve Judge above, Giovan determined issues. As noted that posed, requirement im- if the dedication had been deprived then Electro-Tech was process. hi. Had the without due See section challenged Judge explain the factual Giovan to Electro-Tech’s of his conclusion of law that basis deprived right without due had been justified process, Judge could his Giovan have testimony adduced conclusion on the basis of the 433 Mich Dissenting Opinion by Brickley, Campbell, president of the construc- at trial. Fred company contracted tion with whom building, Electro-Tech’s testified for the erection of plans specifications our are that "as far as our concerned, job of those conditions and met all Beauchamp] poised give the ser- [Mr. we were expected.”20 majority that he offers the vice unsupported however, conclusion, the four remaining contingencies never satisfied.” "were Assuming, govern- still, Ante, n 22.21 Judge analysis proper, Giovan’s ment benefit were deprived prop- that Electro-Tech was conclusion erty encompass the without due would *51 had demonstrated an conclusion that Electro-Tech Because there was entitlement support to build on its land. conclusion, it cannot be at trial for this Judge conclusion had no basis said Giovan’s majority reaching out in fact. The explanation is thus without a factual matter which
to resolve upon Electro-Tech was never called to address detail. legitimate
Because the satisfaction of four trial,22 issue at conditions was not a material majority if the would be somewhat understandable explicitly object city’s to overlook the failure to chose Judge to the factual of Giovan’s con- básis govern- Assuming applicability of a clusion. very case, ment benefit/entitlement test worst Electro-Tech should have to endure would be proceedings a remand to the trial court for further tо determine whether in fact the four conditions Campbell Mr. also stated that he had never encountered a impossible building permit where it was to obtain a in his situation fifty-five years experience. of Appeals 21 I found that council note that Court of "[t]he subject contingencies, approved plan five all of which were the site Electro-Tech, App except 161 Mich 624-625 met for the dedication.” added). (emphasis appeal, parties dispute this issue. On by Dissenting Opinion Brickley, persuaded Even if I were that a had been satisfied. analysis justified, government I benefit were would to remand this case. nevertheless not be inclined remaining four conditions The satisfaction of the made a whit of difference in the would have application. of Electro-Tech’s As ex- outcome majority’s plained in the context of the above finality analysis, majority’s misdirected which the equally analysis misdirected so benefit ought closely plaintiff put resembles, not be through futility. exercises practical finality effect of the and entitle- analyses majority ment endorsed govern- part action on the of a reward obdurate mental aiming permit agency delay to obfuscate or applications those, Electro-Tech, of like to whom granting building agency the permit imposes upon had no intention majority lawful under conditions. The thus engaging burden impractical anticipation in litigation maneuvers in distant entirely
which are in- inconsistent with telligent operations business and common sense.
B light Comm, of Nollan v California Coastal supra, there can be little that the doubt dedication imposed City Westland, condition which *52 deprived right improve Electro-Tech of to its property, arbitrary and irrational. The utter any justification absence cation colorable for the dedi- requirement coupled city’s with the admis- appeal city’s "clearly sion on that the actions were wrong” compel this conclusion. sought Electro-Tech,
Like the Nollans to build property. on their The to demolish Nollans wished bungalow dilapidated prop- a erty on their beachfront replace it with a three-bedroom house. Mich Dissenting Opinion by Brickley, Commission, The California Coastal like the City Westland, approved application the landowner’s on the condition that the landowners consent to a "permanent physical occupation” portion of a Id., 832.23 The Court property. their observed could not have simply the commission re- quired the Nollans to easement without convey compensation violating without the Fourteenth Id., pp Amendment. 833-834. The Court further a could acknowledged governmental body impose permit pursuant police a condition to its legitimate if power the condition serves same purpose outright permit. аs an refusal to issue the Id., pp regard conveyance 836-837. With commission, however, requirement imposed the Court stated: disappears propriety evident constitutional prohibition
... if for the the condition substituted as the utterly fails to further the end advanced justification prohibition. for the When that essen- eliminated, the situation becomes the tial nexus is same as California law crowded shouting if forbade fire theater, granted dispensations but willing to the state trea- those to contribute $100 shouting on fire can be core sury. While ban power protect the police the State’s exercise of our strin- public safety, and can thus meet even adding regulation speech, gent standards for purpose to one unrelated condition alters inadequate which, legitimate, is may while Therefore, though, in a even sustain the ban. sense, to shout tax contribution order requiring a $100 speech than fire is a lesser restriction ban, pass outright it would not constitutional an here, lack of nexus between Similarly muster. original purpose and the the condition 23 Nollan, required merely an easement across the commission property, of Westland demanded that whereas the Nollan’s Electro-Tech seven-foot twenty- entirety give away of its interest in the parcel. *53 Opinion by Dissenting Brickley, J.
building purpose restriction converts that to some- thing purpose other than then what was. becomes, quite simply, obtaining the of an ease- governmental ment to serve purpose, some valid payment compensation. but without Whatever may ’’legitimate be the outer limits of inter- state context, takings ests” the and land-use this is short, permit not one of them. the unless condi- governmental purpose tion serves the same as ban, development building not a restriction is regulation valid of land use ”an out-and-out but plan [Id., omitted, of extortion.” 837. Citations emphasis supplied.] Noting that a governmental entity not may rely on police power to abridge rights unless the effect of its action is to substantially interest, a legitimate advance state Court warned: We are particularly inclined to be careful about adjective conveyance where the actual prop- erty is made a lifting condition to of a [sic] restriction, land-use since that context is there heightened risk purpose avoidance compensation requirement, the stated rather than the police power objective. [Id., p 841.]
While commission in Nollan attempted persuade the Court there were legitimate imposing reasons require- conveyance ment,24 of Westland does contend that the dedication requirement justified, for exam- ple, by projected increase in traffic attributable expansion of Electro-Tech’s building.25 As 24 Nollan, supra, J., pp (Brennan, dissenting). See 845-847 express opinion conсerning 25 I governmental no burden local body these requirement justify requirement must sustain in along order to a dedication only I conveyance lines. observe that Nollan not found the in that case to be unconstitutional did not because it purpose prohibition Nollan, serve the development, same flat as a 433 Mich Dissenting Opinion Brickley,
Nollan, permit condi- "imposition the city’s of its land exercise be treated as an tion cannot *54 Stevens Id., . . 839. As Justice power p . use pro- to substantive due regard with explained has claims, cess complete as as soon the violation is constitutional taken; independent action is the prohibited
the federal language the by is then authorized remedy p [Daniels, supra, legislative history of 1983. § (Stevens, J., concurring)][26] to choose be- arbitrarily forcing Electro-Tech By protected constitutionally tween two to right Electro-Tech’s rights, the violated city process.27 due substantive
VI to Nol- of the instant case comparison Further prevail should persuades lan me that Electro-Tech due claim. on substantive
A cases, compelled In the both the 836, require p interpreted supra, "that the it also the constitution to 'substantially 'legitimate regulation state interest’ advance’ the achieved, rationally sought to . . . that 'the State "could have not ” adopted might objective.’ achieve the State’s decided” the measure [Id., p n 3. Citations omitted.] (CA 9, 1986); Berkeley, See Rutherford v 780 F2d also Geisse, supra, p v Bateson 1303. unsupported majority case was the assertion this offers process theory” regulatory because "tried ... "[t]here the requirement.” on due relating process or to no substantive due instruction 'arbitrary’ or nature of the council’s dedication 'unreasonable’ Ante, city justification no 77. Because the offered requirement, questions no the there were for dedication whatsoever arbitrary jury regarding the and irrational fact nature of this condition. the to resolve Judge recognized this when he Giovan property rights been as a that Electro-Tech’s had violated concluded Thus, imposition given I condition. matter of law do the dedication agree majority’s reasoning issue. with the or result by Dissenting Opinion Brickley, (1) right yield landowners to either build on (subject legitimate permitting their (2) requirements), right not to have their permanent physical occupation land taken just compensation. imposi- Nollan, without permit tion of the unconstitutional condition forced the Nollans to choose between "surrender- ing] either a restrictive covenant or a lateral imposition Here, over [their] easement land.”28 requirement by of the dedication after approved application had Electro-Tech’s offered Electro-Tech a similar Hobson’s choice. The differ- ence betwеen Nollan and this case is not upon govern- choice forced landowners ment, but rather the reaction of the landowners government’s Nollan, extortionate demand. In *55 relinquish- landowners, the ing faced with a choice protected constitutionally rights, one of two give up right chose not to their to on build their property. petition While their for a writ of manda- conveyance requirement mus to strike the onwas appeal pro- courts, in the California the Nollans bungalow ceeded to raze the and erect a new notifying house without the commission and with- complying They out with the easement condition.29 sought prevent government then forcing to the from en- requirement,
the easement which would independent right have violated their not to have property just compensation, i.e., taken without they sought kept Supreme to be whole. Court agreed with the Nollans and held that if the prop- wished to "take” the Nollans’ erty, give just then would have the Nollans compensation. Thus, Nollan was as a framed "tak- 28Epstein, resurrection, Takings: Supreme Descent and Ct R 41. 29Nollan, pp 828-829. 433 Mich Brickley, Dissenting Opinion imposed ing” case, the condition because —which occupation permanent physical aof
threatened a portion Taking the real —violated "taking” Clause, not an actual because By already anal- had occurred. Nollans’ ogy, in which council a situation consider partici- partici- parade permit approval of a conditions pants’ A to unreasonable searches. consent may pant have to allow such a search who refuses participant removed not because condition actually subjected to an unconstitutional search, condition violates but because the Fourth Amendment. opposite however,
Electro-Tech, the choice made Declining to take the bull to that of the Nollans. horns, did not resort to self- Electro-Tech help by proceeding with construction without By building required permit, as did Nollans. refraining building obeying the from with- law and required permit, re- instead out right prop- relinquish its its have fused to erty compensation. Electro-Tech’s taken without right retaining Elec- latter cost insistence on this improve prop- independent right its tro-Tech legitimate requirements. erty subject permitting reasons, case case is a due For these case was not. Nollan was while Nollan sought to invali- the Nollans because condition Taking the Fifth Clause of date violated the Amendment Fourteenth process through (applied states Amendment); is due the instant case *56 to al- Electro-Tech’s refusal case because Taking Clause caused low a violation rights. independent property deprivation its sought prevent a Fifth Amendment Nollans sought be made violation; Elеctro-Tech whole on its right to for the property, with its build interference jury found to have caused which Electro-Tech Dissenting Opinion by Brickley, substantial In injury. terms of the hypothetical aforementioned parade permit, unlike to invalidate the claim of person seeking condition, search Electro-Tech’s claim is analogous seeking redress for harm to person that of a First rights Amendment resulting from a refusal to submit to the unconstitutional condition. I
Finally, believe if the rights Nollans’ could be despite vindicated their defiance of the law (building required without permit), cer- tainly Electro-Tech should not punished subjected to more difficult procedural hurdles obeying the law and seeking then a remedy 1983) (§ for the deprivation unconstitutional which resulted.
B I do not believe the principles recently Connor, Graham v applied Court 490 US —; 109 S (1989), Ct 104 L Ed require 2d us to a Fifth employ Amendment analysis to the exclusion of substantive due theories in cases involving regulation of land use. Graham, the Court rejected the proposition that claims alleging an excessive use of force by law enforcement officers under 1983 are gov- § Id., erned aby single "generic” standard. 104 L Ed 2d standard, 453. This applied under the title of process, substantive due was not derived from any specific source of protection. constitutional As the observed, however, Court protected citizens are against government amounting conduct to exces- sive force by three different constitutional provi- sions. The "reasonableness” standard Fourth guards Amendment against the excessive use of force in the course of an arrest or other citizen, seizure of a free protec- whereas the less *57 Mich 57 by Bkickley, Opinion Dissenting following applies standard Eighth Amendment tive detainees Id., 457. Pretrial L Ed 2d conviction. (although Process Clause the Due protected by are pretrial possibility left open Court pro- Amendment Fourth enjoy also may detainees Thus, tection). 455, Id., n 10. L Ed 2d of the lower courts application indiscriminate regard to standard without force generic excessive pro- constitutional specific of any the applicability Clause) improp- Due Process (including the vision of substantive 1983 into a source converted erly § to the Court’s rights, contrary federally protected merely 1983 is admonishments repeated § rights federal elsewhere "vindicating vehicle for omitted). (citation Id., 2d 454 104 L Ed conferred.” force stan- generic excessive application of the The in Graham neither the lower court dard with, from, the Fourth compatible nor derived Amendment, protection already provided which amounting to exces- conduct against government investigatory stop. an force in the course of sive force claims of excessive Court held that all The treated are to be during the сourse of "seizures” under the Fourth Amendment. I have undertaken process analysis due generic exces- little resemblance
today bears in Gra- by the Court rejected force standard sive that Graham does ham. emphasized It should of substantive viability question not call into particu- or in the generally, process analyses due pretrial force cases. Since of excessive lar context protection enjoy continue to detainees use of against the excessive Due Process Clause id., 104 L Ed 2d amounting punishment, force of such uses legitimacy since the n proce- the "fairness of the depend force do Daniels, supra, them,” dures used to implement Dissenting Opinion by Brickley, J. added), 331 (emphasis the conclusion is unavoid- component able the substantive of the Due Process Clause specific is a source of constitutional protection even excessive force cases.
The due theory outlined above is not a *58 generalized generic or theory potentially applica- to any government ble and all affecting decisions Rather, property. it is play called into where only alleged government conduct amounting to an arbitrary power deliberate abuse of has life, caused a deprivation of It liberty property. would appropriate, for example, apply Taking Clause, Clause, but not the Due Process rational, where nonarbitrary governmental actions physical cause a invasion of a landowner’s prop- erty; Clause, or to apply Equal Protection but Clause, not the Due Process where a con- facially stitutional land use law has the unforeseen effect of discriminating the basis of race applied when in particular situations. only
Not is the process due in theory employed standard, this case not a generic it is not a free- floating standard unanchored to any specific con- provision. stitutional language I have already quoted, the Court has clearly stated forcefully
guarantee of due to delib- applied has been erate decisions of deprive officials to life, person of liberty, or . . property. . Due [T]he Clause, Process like its Magna forebear " Carta . . . was 'intended to secure the individual arbitrary from the government’ powers exercise of the by ” . . . . [B]y barring govern- certain regardless ment actions of the fairness of the procedures implement used to them ... it serves prevent governmental power being from "used 433 Mich Dissenting Opinion Brickley, [Daniels, supra, .... of purposes oppression” Emphasis original.][30] p 331. (unlike Taking hand, Clause the other On Eighth the Fourth and Due Process Clause and governmental respect con- with Amendments force) pro- amounting does not to excessive duct explicit constitutional "an textual source of vide governmental protection against . . . [the] sort of Westland conduct” undertaken supra, Graham, L Ed 2d 454 case. the instant (emphasis added). indicates, language has and as the Court As noted, not frequently Fifth does Amendment] [the private instead prohibit property, but power. exercise places a condition on the understanding Amendment This basic designed to limit makes clear that it is rights with governmental interference se, compensation in the to secure per but rather *59 amounting proper event of otherwise interference Thus, a taking. action that works implicates property rights necessarily obligation just compen- to pay the "constitutional supra, pp English, 314-315. Citations sation.” [First omitted; emphasis original.] imposed reemphasize I conditions taking and in did not effect a this case property; Nollan taking. they rather, threatened a Taking Clause, however, is not with concerned uncompensated takings threats, with but actual property. using preference
Any the Fifth Amendment for specific theory of choice as the constitutional regulation cases, use exclusion land Due Process questionable
Clause, a mat- is also as also n 3. See v Dissenting Opinion Brickley, ter of constitutional interpretation. Judge As Pos- ner observed in Coniston v Corp Village of Hoff- Estates, supra, p man 464: might thought takings
One have that the clause occupy the would field of constitutional remedies governmental deprive people for their actions that property, plaintiffs’ hence takings drag waiver of their claim would their due process rect; pushed down it. But claims with this is cor- extreme, logical argument to its "property” process would read out of the due Fifth clause of the and Fourteenth Amendments. For I agree Taking these reasons do not appropriate Clause is the constitutional vehicle claim, Electro-Tech’s analyzing or that Elec- § "taking” tro-Tech has shown a in this case.
VII I agree with the majority’s conclusion that Elec- tro-Tech required was not to exhaust administra- tive remedies before bringing suit under 1983. §
I would
squarely reject
city’s contention that
Parratt
Taylor,
v
527,
1908;
451 US
101 S Ct
(1981),
VIII I would reverse the decision of the Court of 433 Mich Bkickley, J. Opinion Dissenting the Court of remand this case to Appeals and argu- it to the city’s in order for consider Appeals including the previously, did reach ments of Electro- argument regarding adequacy city’s proceed- for further proof damages, Tech’s this opinion. with ings consistent JJ., Cavanagh, with concurred Levin Brickley,