Case Studies for Matthew J. Zalewski

Oakland County Case No. 2018-164868-CH (Dec. 2018). Plaintiffs sought to hold a City and its Building Official liable for approving site plan modifications for their neighbors’ house without first submitting them for the plaintiffs’ approval pursuant to private deed restrictions between plaintiffs and the neighbors. Plaintiffs also alleged that a retaining wall on the neighbors’ property was a nuisance per se that should be abated by the City. The Court agreed with the City that the plaintiffs lacked standing, and granted the City’s motion for summary disposition.

Wayne County Circuit Court Case No. 18-012968-CK (Feb. 2019). Plaintiff sought to hold the City, its Building Official, and inspectors liable for a partial taking and for negligent inspection, where an unlicensed contractor fraudulently procured a homeowner’s permit and had concealed defects in his construction of a home addition. The Court granted the City’s pre-answer motion to dismiss on grounds of governmental immunity, lack of duty, and upon finding that no City actions could be considered the cause of any harm plaintiffs alleged to have suffered.

Oakland County Circuit Court Case No. 18-169647-CK (May 2019). Plaintiffs operated a business that had been the subject of complaints and code enforcement actions, leading the City to impose restrictions on its hours of operation at the time its business license was up for renewal. Plaintiffs sued alleging a taking, tortious interference with contracts, and other claims. The Court granted the City’s pre-answer motion to dismiss on the basis that the plaintiffs’ historical claims were barred for failure to exhaust administrative remedies, and claims regarding a pending license renewal were not ripe. Other claims were also barred by governmental immunity. This case exemplifies RSJA’s commitment to defending municipalities’ control over their own affairs, and holding plaintiffs accountable when they try to use courts as a substitute for local administrative procedures.

Hillsdale County Circuit Court Case No. 18-863-AW (March 2019). Plaintiff was an unsuccessful candidate in a city council election who sought leave to file a post-election petition for writ of quo warranto to declare him the winner of the election. He contended that the County Board of Elections and County Clerk should have disqualified his opponent from appearing on the general election ballot because his opponent allegedly did not satisfy the City’s residency requirement. The County successfully opposed the application. The Court held that the application was barred by the doctrine of latches since the plaintiff could have challenged his opponent’s affidavit before the primary election, or between the primary and general election before ballots were printed. In addition, the City Council had already determined not to seat the election winner and to schedule a special election, which mooted the plaintiff’s request for relief.

Plaintiffs filed a putative class action alleging that the City’s rental property inspection and pre-sale inspection ordinances authorized warrantless inspections in violation of the 4th amendment, and that fees collected under the inspection program constituted an unconstitutional condition for obtaining a rental certificate of occupancy. In a published opinion, the Court granted the City’s motion to dismiss, finding that plaintiffs lacked standing because plaintiffs had not suffered any injury, as they validly consented to inspections, the ordinances provided opportunities for pre-compliance review and for appeals, and the ordinance’s requirement of an inspection and payment of a fee as a condition of obtaining a certificate of occupancy was a “run-of-the-mine exercise of the city’s police power.”

The plaintiff homeowner association sued a township, water authority, and electrical company, alleging constitutional violations and seeking to quiet title to a piece of property it alleged was improperly foreclosed upon and deeded to the Township, which the Township granted an easement upon to the water authority and electric company nearly a decade earlier to construct a water tower. Representing the water authority, RSJA moved for dismissal on grounds including that the lawsuit improperly collaterally attacked the state foreclosure judgment. In a published opinion, the District Court ruled that it lacked jurisdiction over the quiet title and declaratory judgment acts under the Tax Injunction Act since the relief requested would require the Court to question and vacate the state foreclosure judgment and to enjoin the collection of taxes in violation of that Act where state law provided adequate remedies.

The Township’s sign ordinance allowed for billboards, but Plaintiff wanted to construct one that was far larger than allowed under the ordinance, and its permit was denied based on its dimensions. Plaintiff filed a First Amendment lawsuit, alleging that the entire sign ordinance was unconstitutional based on the existence of allegedly content-based distinctions and that its permitting and variance procedures constituted a prior restraint. RSJA filed a motion to dismiss on behalf of the Township, while Plaintiff filed a cross-pre-discovery motion for summary judgment. The District Court denied Plaintiff’s motion and granted summary judgment to the Township on the basis that Plaintiff lacked standing for its challenge since its only alleged injury flowed from content-neutral constitutional dimensional requirements, and no other sign was treated more favorably based on its content. In addition to lacking an injury under other challenged ordinance provisions, those provisions were severable, such that Plaintiff still would not be allowed to construct its oversized sign even if it was correct that the other provisions were unconstitutional. The Sixth Circuit Court of Appeals panel unanimously affirmed the District Court for the same reasons, and because Plaintiff stated no injury relative to variance procedures since it did not use them. In so doing, the Sixth Circuit reaffirmed its commitment to following its precedent on constitutional standing for sign ordinance challengers that disfavors the type of broad attack that the plaintiff attempted to pursue in this case.

Plaintiff was a developer who owned property in the Township that was subject to a state court consent judgment controlling the property’s development as a result of a prior lawsuit between Plaintiff’s predecessor and the Township. When Plaintiff did not persuade the Township to accept amendments to the consent judgment, it filed a new federal lawsuit asserting due process, equal protection, and takings claims, and breach of contract. The District Court granted a pre-discovery motion to dismiss for lack of jurisdiction on the grounds that the lawsuit was a collateral attack on the prior consent judgment. The Sixth Circuit affirmed on alternative grounds in a published opinion clarifying that collateral attacks are subject to the rules of res judicata. It held that the Plaintiff’s new federal lawsuit was a collateral attack on the state court consent judgment that was barred by res judicata, as adjudicating the constitutional claims would require the federal court to interpret and enforce the consent judgment, which was within the jurisdiction of the state court.

Plaintiff was a frequent public commenter at County Board meetings, which feature two public comment periods at which speakers could provide comment for up to 5 minutes per public comment period. Though both comment periods traditionally were open to comment on any matters, the Board Chair announced at one meeting that the first comment period would be limited to comment on agenda items only. Plaintiff sued for an alleged violation of the OMA, claiming that the agenda-items-only rule violated the Open Meeting Act’s requirement that public comment be provided for pursuant to rules established and recorded by the public body. The Board’s rules were silent on the number of public comment periods or the scope of a particular comment period, but provided for public comment up to 5 minutes, with additional time available at the discretion of the Chair. Affirming the trial court’s grant of summary disposition to the County, the Court of Appeals found that the Board’s rules and their implementation comported with the purpose of the OMA, and that the Complaint failed to state a claim under the OMA upon which relief could be granted.

Plaintiff owned property adjacent to two vacant residential parcels that were granted a lot split and variance to construct two new homes through a consent judgment that resolved a prior lawsuit between the Township and Plaintiff’s neighbor. Plaintiff claimed that the consent judgment was improperly approved, but did not participate in the litigation that generated the consent judgment or challenge the consent judgment thereafter. Instead, Plaintiff filed its own lawsuit against the Township and its neighbor seeking to invalidate the consent judgment, and alleging due process violations. Affirming the trial court’s grant of summary disposition to the Township, the Court of Appeals held that, as Plaintiff had failed to establish that the underlying consent judgment was void, Plaintiff lacked standing to collaterally attack the consent judgment in a separate lawsuit.

Plaintiffs were a group of property owners who sought to use their properties as short-term rentals (“STRs”). However, they did not register their properties as STRs rentals under the City’s STR permitting ordinance before the City adopted a moratorium on STR approvals pending development of new zoning regulations for STRs. Nor did most of them apply (or qualify for) an exception to the moratorium, but rather merely submitted their permit applications during the moratorium. The new zoning regulations ultimately capped STRs in residential districts at the number that existed at the time of the moratorium, with the result that the Plaintiffs whose properties were in residential districts were barred from lawfully establishing their properties as STRs. The Plaintiffs challenged the moratorium and new zoning regulations, seeking damages and equitable relief under theories including a taking, due process and equal protection violations, and a claim of a vested lawful nonconforming use of their properties as STRs. Affirming a published opinion of the Western District of Michigan granting summary judgment to the City regarding the substantive majority of Plaintiffs’ claims, the Sixth Circuit Court of Appeals held that Plaintiffs lacked a protected property interest in STRs for their due process claims, and lacked a vested property interest for their takings and Zoning Enabling Act claims. Because the Zoning Ordinance did not expressly permit STRs and provided that uses not expressly permitted are prohibited, and Plaintiffs waited to apply until the moratorium was in place, they had no legitimate claim of entitlement to STRs permits, and therefore no protected or vested property right in the use of their properties as STRs.

Plaintiffs owned a group of parcels in the Township that they claimed were incapable of being developed under the Township’s special land use regulations, and because the Township and co-defendant construction company allegedly prevented them from connecting their properties to a water main and sewer line during construction of an adjacent road. They sued under theories including due process and equal protection violations, a taking, and tortious interference with contracts. However, the record showed that Plaintiffs had either obtained every land use approval that they had ever applied for, never appealed those that were denied, and/or never actually applied for uses that they claimed individual Township employees suggested would be difficult at the site. The District Court granted a motion to dismiss the takings claims and several other claims prior to discovery, and granted the Township summary judgment on all other claims after discovery. The Sixth Circuit affirmed, holding that Plaintiffs had no protected property right in special land use approvals as required for their due process claims, failed to identify any similarly situated property owners who received approvals despite failing to apply, and that Plaintiffs received no adverse final decisions to ripen a takings claim.

Plaintiffs were owners of the sole residential property on a street in the Township within whatremained of a platted subdivision after a portion of the subdivision was subsumed into a site condominium development. That development had a boundary along Plaintiffs’ street, across from Plaintiffs’ home. When a home across the street and down the road from Plaintiffs’ home had been demolished to make way for the condominium project, a portion of that house’s driveway leading to the street was left behind. Over 15 years later, the condominium unit corresponding to the lot with the driveway remnant was purchased. In preparing to construct a home on the site, the purchasers obtained approval of a zoning variance to allow a fence to beon the unit’s property line, which in turn would enclose the driveway remnant and allow the purchaser to develop it as part of their home’s yard. Plaintiffs then sued the Township and the condominium unit owners, claiming violations of Township codes, the Land Division Act, seeking declaratory relief, and seeking compensation for a taking. In essence, Plaintiffs claimed that the driveway remnant was a “turnaround” that had become part of the platted road and/or that Plaintiffs enjoyed prescriptive easement rights over the remnant. Plaintiffs also separately filed an appeal of the ZBA’s decision, which was denied. The circuit court granted summary disposition in favor of the Township. Among other findings, the court held that the lawsuit was a collateral attack on the ZBA’s decision, that Plaintiff lacked standing to sue the Township over the driveway remnant since it was not Township property and the adjoining road was not under the Township’s jurisdiction, and the title to the property showed no easement rights in favor of Plaintiffs or the public over the driveway remnant. Plaintiffs did not appeal.

Plaintiff filed a complaint asserting one claim under the Freedom of Information Act claiming that the County had improperly denied a FOIA request by failing to respond to a request for a copy of certain documents. However, the alleged FOIA request was located at the end of a lengthy response within an e-mail chain and did not expressly identify itself as a FOIA request. Separately, Plaintiff sued under the Open Meetings Act, claiming that the County had violated the OMA by failing to properly notice a change of venue of a County Board meeting after the County had initially relocated the meeting due to a flood that caused the elevator to the meeting room to be inoperable, but then moved it back to the County building when the elevator was repaired prior to the meeting. Affirming the trial court’s of summary disposition to the County, the Court of Appeals found that no FOIA violation had occurred because the request for records did not satisfy the requirements for a proper FOIA request, and therefore, the non-response did not constitute an actionable denial. Additionally, Plaintiff had no recourse relating to the OMA claim, as the County re-enacted the business of the adjourned meeting, there was no evidence of ongoing OMA violations requiring injunctive relief, and no actual controversy existed requiring declaratory relief to guide the parties’ future conduct.