CHARLES W. WARREN; RUTH WARREN, Plаintiffs-Appellees, v. CITY OF ATHENS, OHIO, Defendant-Appellant.
No. 03-3580
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Decided and Filed: June 15, 2005
05a0261p.06
Before: MARTIN, COLE, and GIBBONS, Circuit Judges.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206. Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 02-00559—James L. Graham, District Judge. Argued: September 24, 2004.
ARGUED: Brian M. Zets, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, for Appellant. Frederick M. Gittes, GITTES AND SCHULTE, Columbus, Ohio, for Appellees. ON BRIEF: Brian M. Zets, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, for Appellant. Frederick M. Gittes, Kathaleen B. Schulte, GITTES AND SCHULTE, Columbus, Ohio, for Appellees.
OPINION
JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellees Charles and Ruth Warren, owners and operators of a Dairy Queen in Athens, Ohio, sued the City of Athens (“City“) and City Prosecutor William Biddlestone under
Charles and Ruth Warren, along with members of their family, have owned and operated a Dairy Queen at the northwest corner of the intersection of Columbus Road and Sunset Drive in Athens, Ohio, since 1981. There has been a Dairy Queen at that location for over 50 years. Other than social security benefits, the Dairy Queen is the only source of income for Charles and Ruth Warren.
First, it is helpful to describe the Dairy Queen and its immediate surroundings. The Dairy Queen has a drive thru lane located along the south side of the building. The lane enters from and exits onto Sunset Drive, a two-lane dead-end street providing access to eighteen residences. There are head-in parking spaces located in the island created by the arc of the drive thru lane; cars exiting these spaces must back onto Sunset Drive. The Dairy Queen faces Columbus Road, a four-lane road, and there is an entrance to the restaurant parking lot from Columbus Road. The entrance from Columbus Road leads to parking spaces on the north side of the building as well as in the front of the building (the side facing Columbus Road). However, because of the property lines, there is no access around the back of the building from the north side to the west side abutting Sunset Drive. Thus, all cars must exit either back onto Columbus Road or via the same Sunset Drive exit utilized by drive thru customers. The Sunset Drive exit is only about twenty feet from the Sunset/Columbus intersection.
The Dairy Queen‘s drive thru lane was constructed after the Warren family decided in 1998 that a drive thru would increase business and improve access for customers. As the president of the regional Dairy Queen office testified, no Dairy Queen would continue to be economically viable in the modern economy without a drive thru. In October 1998, the Warrens applied for a building permit from the City to allow construction of the drive thru. Stephen Pierson, Director of Code Enforcement for the City, determined that the proposed drive thru did not contravene any zoning regulations. Pierson nonetheless denied the Warrens’ application in Decеmber 1998, explaining that the proposed drive thru and part of the existing Dairy Queen building were located on a public right-of-way owned by the City.1 In his refusal, Pierson notified the Warrens of their right to appeal the decision. Pierson also suggested that the Warrens apply for a ten-year revocable license from the City Council for use of the right-of-way. The Warrens did so and entered into discussions with City officials, who had been contacted by Sunset Drive residents concerned about increased traffic on their street.
In April 1999, the Warrens proposed alternate plans for the drive thru in order to address the concerns of residents of Sunset Drive. Wayne Key, the City‘s service-safety director, endorsed one of these plans, since it channeled the drive thru exit onto Columbus Road and called for parаllel parking, rather than head-in parking, along Sunset Drive. Nevertheless, the City Council denied the Warrens’ application, citing safety concerns and the concerns of residents affected by the drive thru. The council acknowledged that its denial “may become moot” if the City did not in fact own the right-of-way. After being advised by their attorney that the City did not in fact have a right-of-way over their property, the plaintiffs-appellees decided to proceed with their original plan to build the
Three years later, in April 2002, City Prosecutor William Biddlestone2 notified the Warrens’ counsel that due to numerous complaints from the Dairy Queen‘s neighbors about traffic congestion and noise on Sunset Drive, the City planned to: (1) place “do not block” signs at the intersection of Sunset and Columbus; (2) place “no stopping or standing” signs at the exit and entrance to the drive thru on Sunset; and (3) build a curb along Sunset to close the “illegal driveways” comprising the drive thru.3 The signs were erected soon after, and the Warrens did not object to this action. On May 1, 2002, City officials Biddlestone, Key and Pierson met with the Warrens to discuss the matter and specifically the City‘s plan to install curbs blocking the drive thru. On May 24, Biddlestone wrote the Warrens’ counsel to inform him that “a little more research” indicated that several automobile accidents, including a couple of “fairly serious” ones, had taken place at the intersection since the drive thru opened. Declaring the drive thru a “traffic hazzard [sic],” Biddlestone reiterated the City‘s intention to follow through with placement of temporary curbing along Sunset and “permanent curbs” at some point in the future. On May 29, 2002, the City placed barricades along Sunset, running from the drive-thru exit to the west end of the property line.4 Even though the drive thru exit was not barricaded, customers could not use the drive thru, and refuse trucks could not pick up trash, recycling, and waste grease at the back of the restaurant. The Warrens experienced a drop in sales of about 22% in the month following the blockage of the drive thru.
Both parties offered extensive evidence during the district court proceedings regarding traffic concerns related to the drive thru. Even though City officials such as Key, Pierson, and police officer Roger Dierdorf testified, thеy presented no evidence that the City had attempted to design a traffic enforcement plan in the area of the Dairy Queen, conduct a study of traffic flow on Sunset Drive, or assess the particular impact of the drive thru itself. Officer Dierdorf, who regularly patrols the area around the Dairy Queen, testified that he had never seen traffic backed up on Sunset Drive waiting to enter the drive thru. An examination of accident reports in the vicinity of the Columbus/Sunset intersection did not produce any evidence of accidents connected in any way to the drive thru. In addition, the City produced two videos of the Columbus/Sunset intersection covering week-long periods during the summer of 2002, but neither video revealed any traffic problems or accidents.
Various residents of houses on Sunset Drive testified about traffic problems caused by the drive thru. For example, Ralph Kliesch described how cars exiting the drive thru often block Sunset Drive, putting drivers turning onto Sunset from Columbus in danger. He also noted that cars turning right into the drive thru have to swing into the other side of Sunset Drive, and Kliesch stated that he often has to swing into the oncoming traffic lane when cars are stacked up on Sunset in line for the drive thru. One resident, Ellen Kroutel, videotaped the stacking of cars on Sunset Drive on March 28, 2001, during the largest promotion in Dairy Queen history. Other residents echoed these concerns, as well as concerns over noise and use of residential driveways, but none of them reported
In addition to evidence from City officials and local residents, both parties offered the testimony and reports of an expert witness at trial. The City retained Stephen Thieken, a transportation and traffic engineer, who found fault in the “stacking space” available to Dairy Queen drive thru customers, the short distance (the “corner clearance“) between the drive thru exit and Columbus Road, and the angled nature of the parking spaces on Sunset Drive. Thieken also reported that the severity of accidents around the Dairy Queen increased after the drive thru was installed, but he cautioned that it was difficult to “link the accidents directly to the operation of the Dairy Queen drive-thru.” Thieken based his report solely on maps, conversations with City officials, accident reports, and a one-hour visit to the site.
The Warrens offered the testimony and report of Richard DeWolfe, a civil transportation engineer who had experience designing commercial sites, including drive thru restaurants and banks.5 DeWolfe reviewed the Dairy Queen site, other businesses in the vicinity of the Dairy Queen, accident reports, various letters sent among the parties to the case, the video shot by Ellen Kroutel, and the two videos of the Columbus/Sunset intersection shot in the summer of 2002. DeWolfe‘s report rebutted each of Thieken‘s conclusions. First, in DeWolfe‘s view, the Institute of Transportation Engineers (ITE) guidelines (upon which Thieken also relied) did not require a longer “stacking space” than that provided by the Dairy Queen drive thru. Second, DeWolfe pointed out that Thieken did not sufficiently observe traffic volumes at the intersection so as to support his conclusion that insufficient corner clearance was provided between the drive thru exit and Columbus Road. Similarly, DeWolfe found Thieken‘s analysis of the angled parking on Sunset Drive to be unsupported by any analysis of traffic volume or the relationship between the drive thru and the accidents that have occurred. DeWolfe listed a number of other businesses in Athens with angled parking, an amount of stacking space similar to that of Dairy Queen‘s, and exits near an intersection. DeWolfe concluded that these business locations created “more potential traffic conflicts than the Dairy Queen.” These businesses, however, were not threatened with barricades.
Charlеs and Ruth Warren filed a complaint in federal court on June 6, 2002, seeking damages and injunctive relief against the City and Biddlestone. The district court granted a temporary restraining order against the City on June 7, and after an evidentiary hearing, the court issued a preliminary injunction on June 26 ordering the City to remove the barriers on Sunset Drive. Subsequently, on the Warrens’ motion, the district court dismissed without prejudice the plaintiffs’ claims against Biddlestone as well as their damage claims against the City, leaving only the Warrens’ claims for declaratory and injunctive relief, as well as for attorneys’ fees and expenses. Additional testimony and exhibits were presented at a trial in December 2002, and on March 18, 2003, the district court permanently enjoined the City from installing barricades, curbing, or otherwise restricting access to the Dairy Queen. The City appealed from the district court‘s order on April 16, 2003.
The Warrens’ rather imprecise complaint alleges an arbitrary “taking of property without due process” and a violation of their “right to equal protection, procedural due process, and substantive due process.” It generally asserts violation of the Warrens’ Fifth and Fourteenth Amendment rights. The essence of the Warrens’ factual allegations and argument is that the City violated their federal constitutional rights6 by placing barriers “along” their property, thereby “blocking” access to the drive thru, both for customers and for trash and waste removal. They allege that such barriers were not erected at other similarly situated businesses. They assert that they have no administrative appeal remedy and receivеd no notice of a hearing or appeal.
After scrutinizing the complaint, it is fairly clear that the Warrens assert an equal protection claim based on their allegations that the City did not erect barricades at similarly situated businesses. Also, their procedural due process claim rather obviously derives from the lack of a hearing to challenge the erection of the barriers. The Warrens also assert, however, a third claim which is less well-defined in the complaint. This third claim presents the issue of whether the City‘s erection of the barriers is an unconstitutional restriction on the Warrens’ use of their property. The Warrens have described this claim as a substantive due process claim, and we refer to it in the same way, although we do not entirely agree with either the Warrens’ or the district court‘s characterization of it. We address the third claim, which requires the most difficult analysis, first.
A. The Substantive Due Process Claim
In this case, the appropriate legal analysis of the Warrens’ claim of “taking of property without due process” is entirely dependent on its proper characterization. The district court extensively addressed the standards applicable to takings claims and eventually concluded that the Warrens’ complaint actually involved a private use takings claim brought “under a substantive due process theory.” The court went on to evaluate this “substantive due process” claim, holding that the City‘s actions amounted to a taking for private use, thus infringing the Warrens’ substantive due process property rights. We review legal conclusions upon which a decision to grant an injunction is based de novo. Sharpe v. Cureton, 319 F.3d 259, 272 (6th Cir. 2003).
Although the Warrens mention the
Another possible basis for a
The district court‘s analysis of the Warrens’ claim as a private use substantive due process claim is problematic for two reasons. First, although the City acted at the urging of residents of Sunset Drive and for their benefit, the City‘s action was rationally related to the conceivable public purposes of traffic, noise and accident control.8 This fact situation contrasts with that in Montgomery where the county declared the driveway a county road at the urging of a single neighbor whose motive was to obtain delivery of mail to her home. Id. at 763. Second, although the Montgomery panel did not explicitly decide whether a private use taking claim could be asserted as a substantive due process claim, it analyzed the two issues separately in the case and cast a dim light on thе prospect that a claim merging the two principles would be viable. See id. at 768-69 (“[I]t is not clear why the concept of substantive due process should have any place in takings cases.“). The district court‘s private use takings analysis of the Warrens’ case thus appears inconsistent with both the facts and the law, and we decline to adopt it.
Although the Warrens embrace the district court‘s private use analysis, they also assert that their claim is a substantive due process claim of the type described in Williamson County. See 473 U.S. at 197. Their argument is that placement of the barriers constituted a government regulation “that goes so far that it ha[d] the same effect as a taking by eminent domain” and thus was “an invalid exercise of the police power, violative of the Due Process Clause of the
Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in
most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act.
Id. at 413; see also Williamson County, 473 U.S. at 197-200 (interpreting Mahon and outlining the rationale for the “due process takings” theory). The Warrens’ claim of “taking of property without due process” potentially fits well within this theory. The Warrens’ case has never been about compensation but rather has concerned “invalidation of the regulation” imposed by the City, the argument being that the barricades were “so onerous that [they had] the same effect as an appropriation of the property.” Id. at 197-99. Yet, the Supreme Court has left undecided three times the issue of whether the Constitution supports such a theory. See id. at 185 (citations omitted). And Supreme Court authority subsequent to Williamson County strongly stresses that substantive due procеss concepts are not available to provide relief when another provision of the Constitution directly addresses the type of illegal government conduct alleged by the plaintiff. See, e.g., Graham v. Connor, 490 U.S. 386, 394-95 (1989) (analyzing an excessive force claim under a
A final avenue exists for assertion of a substantive due process claim, but this avenue appears outside the scope of the Warrens’ complaint and their argument on appeal. This court has recognized that a substantive due process violation occurs when arbitrary and capricious government action deprives an individual of a constitutionally protected property interest. See Tri-Corp Mgmt. Co. v. Praznik, 33 Fed. Appx. 742, 747 (6th Cir. 2002); Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216, 1217 (6th Cir. 1992); see also Nectow v. City of Cambridge, 277 U.S. 183, 187-88 (1928) (holding that a court should not interfere with local zoning decisions unless the locality‘s action “has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public heаlth, the public morals, the public safety or the public welfare in its proper sense“) (internal quotation marks and citation omitted); Eide v. Sarasota County, 908 F.2d 716, 721-22 (11th Cir. 1990). While challenges to arbitrary and capricious government action appear most frequently in cases involving zoning and other ordinances, see, e.g., Vill. of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974), they are not necessarily limited to such cases, see, e.g., Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 82-83 (1978) (noting that federal economic regulations will be upheld “absent proof of arbitrariness or irrationality on the part of Congress“); see also Zinermon v. Burch, 494 U.S. 113, 125 (1990) (“[T]he Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the fairness of the procedures used to implement them.‘“) (citation omitted). Although the district court states that the City‘s actions were a ”de facto zoning change analogоus to the denial of a zoning variance or permit,” the Warrens do not assert such a claim here and, in fact, argue in their brief that “the case at bar is not a zoning case” and that the City‘s barricades were not placed pursuant to any
We recognize the soundness of the district court‘s findings and conclusions about the lack of any viable justification for the City‘s erection of the barriers and the clear deprivation of the Warrens’ right to ingress and egress from their property. Yet, given the law, the facts, and the Warrens’ own arguments and characterization of their claims, we cannot conclude that the City violated the Warrens’ substantive due process rights.
B. The Procedural Due Process Claim
We now turn to consideration of the Warrens’ procedural due process claim. The
Preliminarily, we consider the issue of ripeness of the procedural due process claim. Takings claims, whether asserted as just compensation or substantive due process claims, are subject to ripeness requirements, Williamson County, 473 U.S. at 194, 199-200, as are procedural due process claims that are ancillary to takings claims, Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002). Here the Warrens’ procedural due process claim is not ancillary to their takings claim, but addresses a separate injury—the deprivation of a property interest without a predeprivation hearing. See Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 893-95 (6th Cir. 1991) (explaining the “vital distinction between procedural due process claims and other varieties of constitutional grievances stemming from land use decisions“); see also Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1045 n.6 (5th Cir. 1998) (holding that Williamson County would not apply when “main thrust” of plaintiff‘s claim is procedural due process, not takings); cf. Nasierowski Bros., 949 F.2d at 899 (Martin, J., concurring) (stating that the Williamson County requirements will apply when “the procedural due process claim is in reality an adjunct to a taking or other constitutional claim“).
In resolving the procedural due process claim, the first issue is whether the Warrens were deprived of a property interest. Property rights are created and defined not by the Constitution but by independent sources such as state law. Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002). In State ex rel. Merritt v. Linzell, 126 N.E.2d 53, 54 (Ohio 1955), the Ohio Supreme Court held:
An owner of property abutting on a public highway possesses, as a matter of law, not only the right to the use of the highway in common with other members of the public, but also a private right or easement for the purpose of ingress and egress to and from his property, whiсh latter right may not be taken away or destroyed or substantially impaired without compensation therefor.
This right of access is especially important for businesses abutting a public street. See Branahan v. Cincinnati Hotel Co., 39 Ohio St. 333, 333-34 (1883). Under Ohio law, the state may regulate a property owner‘s easement of access without compensation as long as there is no denial of ingress or egress. Castrataro v. City of Lyndhurst, No. 60901, 1992 Ohio App. LEXIS 4352, at *8 (Ohio Ct. App. Aug. 27, 1992). However, a landowner‘s property interest is infringed even when a
The second step in the procedural due process analysis is determining whether the City‘s deprivation of the Warrens’ property interest contravened notions of due process. Generally, the process that is due before a property deprivation includes prior notice and an opportunity for a predeprivation hearing. Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994). In this case, the Warrens received notice but not a predeprivation hearing. Under circuit precedent, a
Whether seen as an attack on an established state procedure or as an attack on a “random and unauthorized” act, the Warrens’ claim is not subject to the Parratt rule. It clearly would not have been “impossible” for the City to grant a predeprivation hearing to the Warrens. See Mackey v. Dyke, 29 F.3d 1086, 1093 (6th Cir. 1994); Harris, 20 F.3d at 1401. Moreover, even if the Parratt rule did apply, it is not clear that any state remedies were available to the Warrens.10 Thus, if the City‘s action was a “random and unauthorized act,” then the Warrens’ claim prevails. If, alternatively, the City‘s action was the result of an established state procedure, then the question would be whether that procedure violated due process rights. The Warrens have shown that the state procedure in this case violated their rights. This court held in Nasierowski Brothers, in the course of evaluating a
Governmental determinations of a general nature that affect all equally do not give rise to a due process right to be heard. But, when a relatively small number of persons are affected on individual grounds, the right to a hearing is triggered . . . . [T]he Council‘s actiоn clearly resulted in a differentiable impact on a specifiable individual, thus triggering a right to hearing.
C. Equal protection
Finally, we turn to the Warrens’ equal protection claim. “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
A “class of one” plaintiff may demonstrate that a government action lacks a rational basis in one of two ways: either by “negativ[ing] every conceivable basis which might support” the government action or by demonstrating that the challenged government action was motivated by animus or ill-will. Klimik v. Kent County Sheriff‘s Dept., 91 Fed. Appx. 396, 400 (6th Cir. 2004) (citations omitted); Bower v. Vill. of Mount Sterling, 44 Fed. Appx. 670, 677-78 (6th Cir. 2002). Here, despite the district court‘s ruling and appellees’ arguments, the Warrens cannot negative all the bases upon which the City‘s act was premised. The City acted in response to numerous complaints from Sunset Drive residents who were concerned about traffic congestion and safety. Surely, responding to these concerns, which were legitimate state interests, constituted at least one conceivable basis for the placement of the barricades. The Warrens, then, are left with an argument that City officials were motivаted by ill will. This argument has potential merit, based on the fact that City Prosecutor Biddlestone, the incumbent, was handily defeated in a primary election in 2000 for County Prosecutor by the Warrens’ son. The appellees noted this in their original complaint and motion for preliminary injunction, and their lawyer attempted to examine Mr. Biddlestone on the issue during the preliminary injunction hearing, but the district court sustained an objection to this line of questioning based on relevance.11 Therefore, the Warrens failed to show during the proceedings below that Mr. Biddlestone acted out of ill will or animus.12 We hold that the Warrens’ “class of one” equal protection claim fails.
D. Permanent injunction
This court reviews the district court‘s decision to grant a permanent injunction for abuse of discretion. Sharpe, 319 F.3d at 272; Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir. 1994). “‘An abuse of discretion is defined as a definite and firm conviction that the district court committed a clear error of judgment.‘” United States v. Miami Univ., 294 F.3d 797, 806 (6th Cir. 2002) (citation
Where a plaintiff establishes a constitutional violation after a trial on the merits, the plaintiff will be entitled to permanent injunctive relief upon a showing of: (1) a continuing irreparable injury if the court fails to issue the injunction, and (2) the lack of an adequate remedy at law. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998). The Warrens have established that the City violated their procedural due process rights. They have also shown a continuing irreparable injury, in that with the barricades, the drive thru would be inoperable and the Dairy Queen would likely go out of business. Such financial ruin qualifies as irreparable harm. See Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir. 1995); cf. Basicomputer Corp. v. Scott, 973 F.2d 507, 511-12 (6th Cir. 1992) (holding that competitive losses and losses of customer goodwill constitute irreparable harm).
Nor is there an adequate remedy at law for the Warrens. Even though it would seem that the Warrens could quantify their past lost profits due to the barricades and seek money damages in compensation, see Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1186 (2d Cir. 1995), future lost profits are much harder to quantify. Moreover, if these lost profits were of such a magnitude that the viability of their business were threatened (thereby giving rise to an irreparable injury as described above), then the Warrens would indeed have no adequate remedy at law and a permanent injunction would be appropriate. See Auto. Elec. Serv. Corp. v. Assoc. of Auto. Aftermarket Distribs., 747 F. Supp. 1483, 1513-14 (E.D.N.Y. 1990); see also Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970) (“Of course, Semmes’ past profits would afford a basis for calculating damages . . . . But the right to continue а business in which William Semmes had engaged for twenty years and into which his son had recently entered is not measurable entirely in monetary terms; the Semmes want to sell automobiles, not to live on the income from a damages award.“); cf. Miami Univ., 294 F.3d at 819 (holding that an injury is not fully compensable by money damages if the plaintiff‘s loss would make damages difficult to calculate). Based on the record in this case, it was not an abuse of discretion for the district court to conclude that the Warrens could not obtain an adequate remedy at law for the potential loss of their business. We therefore affirm the district court‘s order of a permanent injunction.13
III.
For the foregoing reasons, we affirm the district court‘s order granting a permanent injunction, although only on the basis of the City‘s violation of the Warrens’ procedural duе process rights.