NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0541n.06
Filed: June 23, 2005
No. 03-4360
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CARL S. ANDREANO, TRUSTEE,
Plaintiff-Appellant,
On Appeal from the United
v. States District Court for the
Northern District of Ohio
CITY OF WESTLAKE,
Defendant-Appellee.
Before: BOGGS, Chief Judge; CLAY, Circuit Judge; WALTER, District Judge*
WALTER, District Judge.
Plaintiff-Appellant, Carl S. Andreano, in his capacity as trustee of Bretton Woods Park, Inc.
(hereinafter “Andreano”), appeals from two orders of the district court. The first order granted
summary judgment in favor of defendant, the City of Westlake (hereinafter “the City”), on
Andreano’s substantive due process claim, brought under 42 U.S.C. § 1983, for relief from certain
actions and inactions by the City that Andreano claims have prevented him from developing a parcel
of his property in Westlake. The second order dismissed Andreano’s substantive due process and
equal protection claims, also brought under § 1983, that were based on the City’s filing “quick-take”
condemnation proceedings with respect to that same parcel of property, despite a state court order
requiring the City to grant Andreano planning permission to build on that land.
I.
*
The Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana,
sitting by designation.
No. 03-4360 2
The events giving rise to this action began in 1975, when Bretton Woods Park, Inc.
(“Andreano”)** purchased approximately 100 acres of land (“the Parcel”) in the City of Westlake.
Three years earlier, in 1972, the Cuyahoga County Board of Commissioners established an extension
of Basset-Stearns Road, now commonly known as the Crocker Road Extension (“the Extension”).
The Extension was divided into two parts, a northern segment (“the Northern Extension”) and a
southern segment (“the Southern Extension”). The proposed Southern Extension runs through the
Parcel.
The Northern Extension is complete, but no construction has begun on the Southern
Extension. The county statute authorizing the Southern Extension required that construction be
completed by August 1979. Nonetheless, Westlake officials claim that they still intend to build the
Southern Extension if and when they can obtain financial and regulatory cooperation from state and
federal authorities. The Southern Extension would link Interstates 90 and 480, provide a direct route
to Cleveland Hopkins Airport for residents of several Ohio counties, and decrease the traffic flow
in Westlake.
Andreano, aware of the plans to build the Southern Extension, submitted plans for
developing part of the Parcel, Bretton Woods I, that eventually included the proposed Extension
route. These plans were approved by the City in 1978. In 1984, Andreano submitted plans for
Bretton Woods II that accommodated future construction of the Southern Extension. These plans
were approved by the City in 1989.
In January 1999, Andreano applied for approval of a development plan for Bretton Woods
III (“the Plan”) that would occupy the remaining part of the Parcel and leave no room for
**
Although Bretton Woods Park, Inc. performed most of the actions described herein, rather
than Andreano, principal and trustee of the company, we will refer to the company’s actions as those
of Andreano for clarity’s sake, given the title of this case.
No. 03-4360 3
construction of the Southern Extension. At the time of its submission, the Plan fully complied with
Westlake’s then-existing minimum lot size ordinance. Five days after submission, however, the City
realized that the Plan would interfere with the Southern Extension, and passed a new lot size
ordinance (“the Ordinance”) in March 1999 that increased the minimum lot size and made the Plan
unlawful. After the Ordinance passed, but before it became effective, Andreano offered to sell the
City a right of way for the Southern Extension, but received no response.
Westlake’s approval process for development plans is set forth in Code Sections 1220.01 -
1220.11. The Code states that development plans shall be submitted to the Department of Planning
for review and approval by the Planning Commission (“the Commission”). Code Section 1220.07
gives the Commission sixty days after its first meeting where the Commission considers a proposed
plan to either approve the plan (with or without modifications) or disapprove it. The Commission
must take into account “the spirit and intent of the Zoning Code, the location of the proposal, the
effect on the surrounding properties, and the relationship of the proposal to the Guide Plan.”
Westlake Code §§ 1220.05, 1220.07. Code Section 1220.01 states that the Code as a whole is
intended to, among other things, “regulate and control the location and spacing of buildings on the
lot and in relation to the surrounding property so as to carry out the objectives of the Guide Plan,”
and “guide the future development of the City to bring about the gradual conformity of the land and
building uses in accordance with the objectives of the Guide Plan.” Code Section 1220.07 specifies
that, once the Commission has approved or rejected a development plan, the plan shall be submitted
to the Westlake City Council for confirmation or rejection of the Commission’s decision.
The Southern Extension is not mentioned in Westlake’s 1980 Guide Plan, the last, and
seemingly only, Guide Plan officially adopted by the Commission. The Southern Extension is
mentioned, however, in a 1990 Guide Plan that was never officially adopted by the Commission.
No. 03-4360 4
See Andreano v. Council of City of Westlake, No. 79286, 2002 WL 21999, at *4 (Ohio Ct. App. Jan
3, 2002).
The Commission delayed a vote on the Plan until April 19, 1999, one day after the Ordinance
became effective, and decided that it would not recommend the Plan to the Westlake City Council
for approval because: (1) subplots in the proposed subdivision did not meet the requirements of the
new Ordinance;*** and (2) chapters 1125 and 1127 of Westlake’s Code prohibit approval of a plan
that does not incorporate an approved thoroughfare, i.e., the Extension. The Westlake City Council
rejected the Plan for the same reasons given by the Commission.
Andreano appealed the City Council’s denial of the Plan in the Court of Common Pleas of
Cuyahoga County. The Court of Common Pleas held that the City Council was entitled to rely on
Code chapters 1125 and 1127 to deny the Plan based on the Extension’s inclusion in the 1990 Guide
Plan, because, as the Ohio Court of Appeals for the Eighth District held in K-Mart Corp. v. City of
Westlake, 700 N.E.2d 659, 664 (Ohio Ct. App. 1997), the 1990 Guide Plan “is by reference
incorporated into Westlake’s zoning law.” See Andreano v. Council of the City of Westlake, Case
No. 385384, Vol. 2556 (Ohio Cuy. C.P. 2001) (Joint Appendix (“J.A.”), p. 479). However, the court
also held that Westlake had violated the City Code by delaying the approval process to allow for the
new Ordinance to come into effect, thereby withholding approval of the Plan for more than 90 days.
Section 1125.06 provides, in pertinent part:
(b) Land Reserved for Public Use. The City may request, by
resolution, that a developer set aside, reserve or offer for sale land for
streets, parks, playgrounds or other public uses shown upon a duly
approved Thoroughfare Plan, Local Street Plan, Park and Recreation
Plan or Guide Plan for a period of ninety days after the application
***
During the following six months, the City approved at least five subdivisions that failed
to meet the lot size requirements of the new Ordinance. However, none of the approved
subdivisions included land needed for the Southern Extension.
No. 03-4360 5
for approval of a preliminary plan, or for a longer period as may be
mutually agreed upon by the City and the developer, to allow the City
time to acquire such land.
Section 1134.04 states:
The Planning Commission may . . . prepare plans of unsubdivided
or improperly subdivided areas showing a pattern of future streets
and public open spaces. After a public hearing, such plans . . . may
be adopted and recorded by the Commission. Thereafter no
subdivision may be approved and no street may be accepted or
improved unless it conforms substantially to such recorded plan, and
no applications for a permit to construct a building shall be issued
until such land has been acquired or reserved for street purposes, but
such permit may not be withheld for a period exceeding ninety days.
The court reversed the City Council’s rejection of the Plan as arbitrary and capricious under
Ohio law, and ordered the City Council to proceed with a review of the final plat and engineering
drawings (the step in the approval process between approval of a plan and issuance of a permit) in
accordance with the lot size ordinance in effect at the time the Plan was submitted.****
The City appealed the trial court’s decision to the Ohio Court of Appeals for the Eighth
District. The Court of Appeals affirmed the judgment in favor of Andreano. The City then appealed
to the Supreme Court of Ohio, and sought a stay of the judgment against it. The Supreme Court
denied the stay, denied the City’s motion to certify the record, and dismissed the appeal.
Despite the state court judgment against it, the City did not review the Plan, but instead filed
condemnation proceedings currently pending before the Cuyahoga County Probate Court (“the
Condemnation Action”). Meanwhile, Andreano continues to pay taxes and insurance on the
undeveloped parcel.
Prior to the City filing the Condemnation Action, Andreano filed an action in the United
States District Court for the Northern District of Ohio under 42 U.S.C. § 1983, claiming that the City
****
It is undisputed that the Plan complied with the previous lot size ordinance.
No. 03-4360 6
violated his right to substantive due process by denying approval of the Plan (“Count One”). In a
Second Supplemental Complaint, filed after the City initiated condemnation proceedings, Andreano
brought additional claims under § 1983, alleging a violation of his rights to substantive due process
and equal protection, and seeking both monetary damages and injunctive relief (“Count Two”).
The parties filed cross motions for summary judgment with regard to Count One. The
Magistrate Judge recommended that partial summary judgment be granted in favor of Andreano.
The City timely filed an objection to the Magistrate Judge’s report and recommendation. The
district court rejected the report and recommendation, and granted summary judgment in favor of
the City on the ground that Andreano did not have a constitutionally protected property interest in
the Plan’s approval, a threshold requirement for a substantive due process claim.
With respect to Count Two, the City filed a motion to dismiss Andreano’s claim for
preliminary injunctive relief, but did not otherwise attack his substantive constitutional claims. The
district court granted the City’s motion, and dismissed sua sponte the underlying claims with
prejudice. The district court found that Andreano’s equal protection claim failed because he had not
alleged the existence of any similarly situated landowners against whom no condemnation
proceedings had been filed. The court found that the substantive due process claim failed as a matter
of law for the same reason as the due process claim in Count One.
Andreano timely appealed.
II.
A. Standard of Review.
We review the district court's grant of summary judgment de novo. Sperle v. Michigan Dep't
of Corr., 297 F.3d 483, 490 (6th Cir. 2002). Summary judgment is proper where no genuine issue
of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
No. 03-4360 7
P. 56(c). In considering such a motion, the court must view the evidence and draw all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
106 S. Ct. 2505, 91 L.Ed.2d 202 (1986).
B. Count One - Substantive Due Process Claim for Rejection of the Plan.
As alleged by Andreano, under Ohio law, the City obtains immediate title and possession
of the property described in the condemnation action filed by the City. See Second Supplemental
Complaint, ¶¶51-54. Based on the City’s taking of the Parcel, Count One has become moot. Thus,
Count One need not be addressed. However, even if the taking by the City is not complete,*****
plaintiff’s substantive due process claim regarding the City’s rejection of Andreano’s Plan lacks
merit for the reasons stated by the district court.
Substantive due process is “[t]he right not to be subject to ‘arbitrary or capricious’ action by
a state either by legislative or administrative action.” Pearson v. City of Grand Blanc, 961 F.2d
1211, 1217 (6th Cir. 1992).****** Proving a violation of substantive due process requires not only
*****
Article I of the Ohio Constitution provides, in pertinent part, that “[p]rivate
property shall ever be held inviolate, but subservient to the public welfare. . . . When taken
. . . for the purpose of making or repairing roads which shall be open to the public, without
charge, a compensation shall be made to the owner, in money.” Art. I, §19, Ohio Const.
There is nothing in the record before this Court to indicate that any money has changed hands
between the parties for the property at issue. If we assume that the taking is not “complete”
until the compensation described above is provided, then Count One is not moot and the
analysis stated above applies.
******
When an action affects a relatively small number of persons as individuals, that action
is considered administrative, even when it was taken by a legislative body. Pearson, 961 F.2d at
1217.
No. 03-4360 8
that the challenged state action was arbitrary and capricious, but also that the plaintiff has a
constitutionally protected property or liberty interest. Silver v. Franklin Township Bd. of Zoning
Appeals, 966 F.2d 1031, 1036 (6th Cir. 1992). In the absence of a constitutionally protected interest,
arbitrary and capricious conduct will not support a substantive due process claim. See ibid.
This Court uses an “entitlement test” to determine whether an alleged property right is
protected under the Fourteenth Amendment. Under that test, a protectible property right exists only
if a plaintiff has a “legitimate claim of entitlement” or a “justifiable expectation” in the approval of
his Plan. Triomphe Investors v. City of Northwood, 49 F.3d 198, 202-03 (6th Cir. 1995); Silver, 966
F.2d at 1036; G.M. Eng’rs & Assocs., Inc. v. W. Bloomfield Township, 922 F.2d 328, 331 (6th Cir.
1990); but see Pearson, 961 F.2d at 1218 n.29 (“this circuit has implicitly recognized that mere
ownership of property subject to zoning is a property interest sufficient to invoke due process”). We
must look to state zoning laws to determine whether a legitimate claim of entitlement or a justifiable
expectation exists. See Silver, 966 F.2d at 1036 (citing Bd. of Regents v. Roth, 408 U.S. 564, 577,
97 S. Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)).
A plaintiff lacks a legitimate claim of entitlement or justifiable expectation if a municipality
has discretion under its zoning code to deny the plaintiff’s land-use application despite the
application’s compliance with the code’s minimum requirements. Triomphe, 49 F.3d at 202-03;
Silver, 966 F.2d at 1036. In Silver, supra, this Court held that a municipal zoning board retained
sufficient discretion to deny a conditional use permit application that fully complied with a zoning
statute’s minimum requirements where the statute provided that an application could be approved
so long as it was “desirable.” Similarly, a statute providing that “a special use permit may be
granted” afforded the zoning board in Triomphe sufficient discretion to deny a special use permit
application despite the application’s compliance with the statute. Triomphe, 49 F.3d at 203.
No. 03-4360 9
In Ohio, the right to approval of a land-use proposal is determined by the regulation in
existence at the time the application is filed. Gibson v. City of Oberlin, 167 N.E.2d 651 (Ohio
1960). “In the enactment of a zoning ordinance, a municipal council may not give retroactive effect
to such ordinance so that a property owner is deprived of his right to a building permit in accordance
with a zoning ordinance in effect at the time of his application for such permit.” Id. In the case sub
judice, it is clear that the City was obligated to review the Plan under the ordinance in effect at the
time Andreano submitted the Plan for approval. The issue before this Court then is whether the City
retained discretion to deny the Plan even though the Plan complied in all respects with the City’s
original minimum lot size ordinance.
As noted above, under the City’s Code, in addition to the ordinance in effect at the time of
the Plan’s submission, the City was required to take into account the “Guide Plan” when evaluating
the Plan submitted by Andreano. For the reasons stated by the district court before us, this Court
finds that the Code incorporates by reference Westlake’s uncodified 1990 Guide Plan. Thus, the
City had ample discretion to deny Andreano’s Plan despite its compliance with the original
ordinance on the grounds that it did not provide for the approved Southern Extension.
Although the City’s failure to reject the Plan within 90 days violated the Code, and was
found to be arbitrary and capricious by the state courts under state law, the City did not thereby, as
Andreano asserts, somehow forfeit its discretion to reject the Plan. As aptly stated by the district
court, “Westlake’s initial discretion to reject the Plan deprived Andreano of a property interest in
the Plan’s approval, regardless of how unlawful under state law Westlake’s dilatory commencement
of the Condemnation Action may have been.” J.A., p. 159 (citing RRI Realty Corp. v. Incorporated
Village of Southampton, 870 F.2d 911, 919 (2d Cir. 1989) (holding that a municipal agency did not
forfeit its discretion to deny an application for a building permit by failing to act on the permit
No. 03-4360 10
within the statutory 30-day period)).
On the other hand, even if, as plaintiff asserts, Andreano did have a protected property
interest in the approval of his Plan,******* the City’s actions in denying the Plan on the basis that it
did not accommodate the Southern Extension do not rise to the level of arbitrary and capricious
conduct under a federal substantive due process analysis. Merely because the state courts found that
the City’s rejection of the Plan was arbitrary and capricious under state law does not necessitate the
same conclusion under federal law. See Pearson, 961 F.2d at 1222 (“‘arbitrary and capricious’ in
the federal substantive due process context means something far different than in state administrative
law”).
In Pearson, supra, this Court determined that to prevail on a substantive due process attack
on a state administrative action, “a plaintiff must show that the state administrative agency has been
guilty of arbitrary and capricious action in the strict sense, meaning that there is no rational basis
for the . . . [administrative] decision.” Id. at 1221 (internal quotations and citations omitted). This
Court further stated that, “In the federal court . . . [t]he administrative action will withstand
substantive due process attack unless it is not supportable on any rational basis or is willful and
unreasoning action, without consideration and in disregard of the facts or circumstances of the case.”
Id. (internal quotations and citations omitted). Accordingly, “it is extremely rare for a federal court
properly to vitiate the action of a state administrative agency as a violation of substantive due
process,” and the “vast majority of such attacks may readily be disposed of on summary judgment
. . . thus keeping interference by federal courts with local government to a salutary minimum.” Id.
*******
Andreano asserts that his land was and is zoned R-1F-80. Code Section 1211.90
states that R-1F-80 is a “permitted use, one family residential district.” A land owner may
use his land for a “permitted use” as of right, provided the landowner meets all other
requirements. Meck and Pearlman, Ohio Planning and Zoning Law, §9:11 (2004 ed.).
No. 03-4360 11
at 1222.
Despite the City’s dilatory and deplorable conduct, the City’s rejection of the Plan was
supported by a rational basis in law, i.e., the Plan did not provide for the Southern Extension in
accordance with the 1990 Guide Plan. This Court cannot find the City’s conduct to be
unsupportable or unreasoned. Thus, plaintiff has failed to meet his burden on summary judgment,
and the district court was correct to dismiss Count One.
C. Count Two.
In the Second Supplemental Complaint, Andreano added a second count to the original
Complaint after the City initiated condemnation proceedings against plaintiff. Count Two is also
brought under §1983 and alleges that the Condemnation Action violates Andreano’s equal protection
and substantive due process rights. J.A., pp. 838-46. Andreano sought money damages, a
preliminary injunction and an injunction asserting that the Condemnation Action violated state law.
In response, the City filed a Motion to Dismiss the claim for preliminary injunctive relief wherein
it alleged that the harm Andreano claimed as the rationale for seeking an injunction could be, and
would be, compensated by money damages if the condemnation proceedings were successful. J.A.,
pp. 955-60.
The district court converted the City’s Motion to Dismiss into a Motion for Summary
Judgment under Rule 56 and held that Andreano’s claims failed as a matter of law. J.A., pp. 166-67.
The Court declined to exercise pendent jurisdiction over Andreano’s state law claims and dismissed
Andreano’s claim for injunctive relief on state law grounds without prejudice.******** J.A., p. 167.
********
Although Andreano appeals this aspect of the district court’s decision, his
argument on this issue is so perfunctory and devoid of developed argumentation as to be
deemed waived. See United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001); see also
Appellant’s Brief, p. 55.
No. 03-4360 12
The court dismissed with prejudice all other aspects of Count Two, including the substantive claims
underlying the claim for preliminary injunctive relief.
1. Dismissal of Substantive Claims Without Notice of Intent to Dismiss.
As a preliminary matter, Andreano asserts that the district court erred when it dismissed his
substantive claims without notifying all parties of its intent to dismiss the complaint and giving
Andreano a chance to either amend his complaint or respond to the reasons stated by the district
court in a notice of intended sua sponte dismissal. See Tingler v. Marshall, 716 F.2d 1109, 1112
(6th Cir. 1983) (imposing these requirements, among others, before a civil rights suit can be
dismissed).*********
The district court acknowledged Tingler’s requirements, but stated that they do not apply
when a dismissal order is preceded by a motion to dismiss that included the grounds relied upon by
the district court. (J.A. 167 n.1 (citing Sanford v. Stern, 980 F.2d 731, 1992 WL 361286 (6th Cir.
1992) (table)).) Sanford held that Tingler did not apply in a case when the dismissal order “was
preceded by an answer and motion to dismiss and a motion for summary judgment which included
the grounds relied on by the district court,” such that the plaintiff “did not lack notice of these
defenses and did not require further discovery to respond.” Sanford, 1992 WL 361286, at *2.
The district court explained that although the City’s motion to dismiss Andreano’s Count
*********
Tingler was overruled by the Prison Litigation Act, 28 U.S.C. § 1915(e)(2)(B),
only insofar as it relates to prisoner suits. The Act imposes a requirement that courts permit
prisoners the opportunity to amend their complaint once before dismissal, but then permits
dismissal of frivolous complaints without notice. See McGore v. Wrigglesworth, 114 F.3d
601, 612 (6th Cir. 1997). Tingler phrases its requirements in broad terms relating to all civil
rights suits, however, and appeals to principles and authority not restricted to the context of
prisoner suits. See, e.g., Tingler, 716 F.2d at 1111 (“sua sponte dismissals are not in
accordance with our traditional adversarial system of justice because they cast the district
court in the role of ‘a proponent rather than an independent entity.’”) (internal citation
omitted).
No. 03-4360 13
Two claim for preliminary injunctive relief did not include the grounds relied on by the court in
dismissing his claims, the City’s summary judgment motion relating to Count One did include those
grounds. This, the district court found, justified granting summary judgment on grounds other than
those contained in the briefs under Herm v. Stafford, 663 F.2d 669, 684 (6th Cir. 1991), which held
that a district court may grant summary judgment on a theory not considered in the briefs without
giving parties an opportunity to respond to the new theory. In addition, the district court stated that
the factual assertions and legal arguments contained in the parties’ motions concerning Count One
were dispositive of the constitutional claims dismissed in Count Two.
The district court’s attempt to evade the requirements of Tingler fails for two reasons. First,
on the notice issue, Sanford specifically noted that the plaintiff in that case had received constructive
notice of the court’s intent to dismiss its claims because motions to dismiss had been filed with
regard to the claims that were subsequently dismissed. See Sanford, 1992 WL 361286, at *2.
Unlike Count One, as to which both parties had fully briefed the issue on summary judgment, and
had notice of the possibility that the district court might summarily dismiss the substantive claim
at issue, no such motion had been filed regarding the substantive claims in Count Two. Andreano
had notice only of the fact that the court might deny his request for preliminary injunctive relief.
Second, the district court’s explanation as to why additional briefing was unnecessary is
premised on the similarity between the claims in Counts One and Two, and between the bases for
the district court’s grant of summary judgment as to each Count. In fact, the claims in Count Two
differ significantly from the claim in Count One. Andreano added an equal protection claim, and
had no opportunity to respond in advance to the district court’s sua sponte determination that he had
failed to allege facts demonstrating that he is similarly situated to other landowners against whom
no condemnation proceedings have been filed. Given the opportunity to amend his complaint, he
No. 03-4360 14
might have been able to find and include such evidence. Furthermore, Count Two attacks an
entirely different action by the City, namely the condemnation proceedings.
The basis for the district court’s summary judgment on Count One was that Andreano had
no protectible legal interest in developing the Parcel in accordance with the Plan. However, the
judgment of the Ohio Court of Common Pleas ordering the City to take steps inevitably leading to
the Plan’s approval arguably gives Andreano a protectible legal interest in his right to have the Plan
approved. The actual, as opposed to the stated, basis for the district court’s dismissal of Andreano’s
substantive due process claim in Count Two, therefore, cannot have been the same as the basis for
summary judgment as to Count One. The district court was bound by the requirements laid out in
Tingler, and was not entitled to dismiss Count Two without giving Andreano the opportunity to
either amend his complaint or respond to the reasons for the intended dismissal. The district court
erred by dismissing Count Two.
We may nonetheless affirm the dismissal on any alternative grounds properly before us.
Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985). In fact,
alternative grounds for dismissal exist with respect to both claims in Count Two.
2. Equal Protection Claim for Filing the Condemnation Action.
Supreme Court cases have recognized successful equal protection claims brought by a “class
of one,” where the plaintiff alleges that he has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment. Village of
Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074, 145 L.Ed.2d 1060 (2000).
However, the basis of any equal protection claim is that the municipality has treated similarly
situated individuals differently. Silver, 966 F.2d at 1036. As in Silver, supra, this Court need not
reach the rational basis test because Andreano has failed to demonstrate that there were any
No. 03-4360 15
landowners who were similarly situated.
In particular, plaintiff alleges that “[t]he filing of the Condemnation Action was the
culmination of a pattern of illegal, arbitrary, capricious and even vindictive acts undertaken by
Defendant Westlake against Plaintiff whereby Plaintiff has been intentionally treated differently
from other property owners who do not have land through which Westlake hopes to see . . . a limited
access County highway.” J.A., p. 55. To survive summary judgment on his equal protection claim,
Andreano had to point to evidence demonstrating that he is similarly situated to other landowners
against whom no condemnation proceedings have been filed. See Olech, 528 U.S. at 563-65. As
asserted by the City, Andreano does not show he is similarly situated to other landowners because
he fails to allege that any other landowners had development plans that would interfere with the
Southern Extension. Accordingly, Andreano has not established an equal protection claim.
3. Substantive Due Process Claim for Filing Condemnation Action.
The district court dismissed Andreano’s substantive due process claim in Count Two on the
same grounds it dismissed Count One: Andreano lacked a constitutionally protected property interest
in having the Plan approved, and the City’s rejection of the Plan had a rational basis. However, the
issue presented by Count Two is whether the City violated plaintiff’s substantive due process rights
when it filed a quick take condemnation proceeding to acquire the property through which the City
intended the Southern Extension to run.
As stated above, the Sixth Circuit uses an “entitlement test” to determine whether an alleged
property right is protected under the Fourteenth Amendment. Under that test, a protectible property
right exists only if a plaintiff has a “legitimate claim of entitlement” or a “justifiable expectation”
in avoiding a condemnation action. Triomphe, 49 F.3d at 202-03; Silver, 966 F.2d at 1036; G.M.
Eng’rs & Assocs., Inc., 922 F.2d at 331; but see Pearson, 961 F.2d at 1218 n. 29 (“this circuit has
No. 03-4360 16
implicitly recognized that mere ownership of property subject to zoning is a property interest
sufficient to invoke due process”). Thus, the more specific issue is whether Andreano had a
justifiable expectation that no appropriation action would be filed to acquire the property needed to
complete the Extension. The facts before this Court clearly indicate that Andreano could have no
such expectation.
In submitting plans for development of Bretton Woods I and II in the 1970s and 1980s,
Andreano accommodated future construction of the Extension. One of the grounds for the City’s
denial of the Plan was that it did not incorporate an approved thoroughfare, i.e., the Extension.
Andreano submitted the Plan in 1999 without consideration of the Extension, despite the existence
of the unofficial Guide Plan submitted in 1990 that included the Extension. Further, at the time the
Plan was submitted, the Ohio Court of Appeals for the Eighth Circuit had already determined that
the 1990 Guide Plan was incorporated by reference into the City’s zoning law. See K-Mart Corp.
v. City of Westlake, 700 N.E.2d 659, 664 (Ohio App. 8th Dist. 1997).
Should Andreano have been treated more fairly by the City? Yes. Should the City have
accepted Andreano’s offer in 1999 to sell a right of way on the undeveloped Parcel? Maybe. Could
Andreano have justifiably expected the City not to take his property to ensure that the property
would remain undeveloped until the Extension is built? Based on the evidence before the Court, the
answer must be “No.” Andreano’s substantive due process claim must fail as a matter of law as he
had no justifiable expectation that the City would not file a condemnation action to acquire the
property necessary to construct the Extension.
Even if Andreano had a justifiable expectation, the City’s conduct in filing the
Condemnation Action had a rational basis – to insure that the property designated for the Extension
remained undeveloped. Accordingly, the district court was correct to dismiss Count Two.
No. 03-4360 17
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
No. 03-4360 18
CLAY, Circuit Judge, dissenting. The Crocker Road Extension, which is a focal
point of this litigation, remains unfinished thirty-three years after it was first proposed, yet
the City continues to point to the illusory goal of completing it as a reason to deny Andreano
the use of his land for its permitted purpose. It does so despite the fact that a county statute
required the project to be completed more than twenty-five years ago, and despite the fact
that Westlake lacks the requisite financial and regulatory cooperation of state and federal
authorities.
Furthermore, the circumstances surrounding Westlake’s denial of Andreano’s land-use
application suggest unfair gamesmanship, at the very least. After Andreano submitted his
application, which complied with Westlake’s existing lot size ordinance, Westlake passed
a new lot size ordinance and then rejected Andreano’s application in part on the basis that
it failed to comply with the new ordinance. Westlake did so despite the fact that Ohio law
is clear that retroactive effect may not be given to such an ordinance, when an applicant is
in compliance with the ordinance in effect at the time of his application. Gibson v. City of
Oberlin, 167 N.E. 2d 651, 654 (Ohio 1960). Making it clear that Andreano was the specific
target of this rather unsubtle maneuvering, Westlake subsequently approved other plans
which were also out of compliance with the new ordinance. After the Ohio Court of Appeals
reversed Westlake’s denial of Andreano’s proposal, Westlake filed a quick-take action to
appropriate Andreano’s land for use in relation to the unfunded and expired proposal for the
Southern Extension.
In short, Westlake’s claimed “objective” of completing the Crocker Road Extension
remains unrealized more than thirty years after it was first announced, and nothing more than
No. 03-4360 19
the pronouncements of Westlake’s politicians suggest that it will ever be built. Yet Westlake
has persisted in denying Andreano the permitted use of his land. And by merely continuing
to proclaim a vague intent to some day complete the Crocker Road Extension, Westlake has
now persuaded this Court to endorse its denial of Andreano’s constitutionally-protected
property rights.
The majority does not even see fit to permit a jury to consider whether Westlake’s
proclaimed intent to complete the Southern Extension is genuine. It is worth reiterating that
this case is before us on appeal from the district court’s grant of summary judgment to
Westlake. Summary judgment is not appropriate in a case such as this where genuine issues
of material fact exist. FED. R. CIV. P. 56(c); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432,
1436 (6th Cir. 1987); Buckner v. Kilgore, 36 F.3d 536, 540 (6th Cir. 1994). In my view, there are
clearly disputed facts in this case that require resolution by a jury.
“[C]itizens have a substantive due process right not to be subjected to arbitrary zoning
decisions.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1217 (6th Cir. 1992) (citing Village of
Arlington Heights v. Metropolitan Hous. Dev. Corp, 429 U.S. 252, 263 (1977)). A threshold
requirement in making such a claim is the possession of a property interest affected by the
administrative action being challenged. Oakwood Homeowners Assoc. at Stonecliffe, et al. v. City
of Mackinac Island, No. 99-1139, 2000 WL 1434708, *2 (6th Cir. Sept. 20, 2000) (unpublished)
(citing G.M. Engineers & Assocs., Inc. v. West Bloomfield Township, 922 F.2d 328, 331 (6th Cir.
1990)). The Supreme Court has explained that the Constitution does not create property interests;
however, the Fourteenth Amendment protects “legitimate claim[s] of entitlement” related to
property. See Board of Regents v. Roth, 408 U.S. 564, 577 (1972). In this case, there is at least a
No. 03-4360 20
genuine issue of material fact as to whether Andreano has a legitimate claim of entitlement which
was violated by Westlake’s arbitrary and capricious actions in rejecting his land-use application.
The Ohio Court of Appeals has held that Andreano had a right to use his land for the purpose
proposed in his application. Andreano v. Council of City of Westlake, 2002 WL 21999, * 4 (Ohio
App. Jan. 3, 2002) (unpublished) (the Council “attempted to deny Andreano his right to use the
remaining acreage in the Parcel”) (emphasis added). That holding accords with the Westlake City
Code, which affords Andreano the use of his property for its permitted purpose “by right.”
WESTLAKE, OH CODE § 1205.02. Nonetheless, the majority relies on two opinions of this Court,
Triomphe Investors v. City of Northwood, 49 F.3d 198 (6th Cir. 1995), and Silver v. Franklin
Township Bd. of Zoning Appeals, 966 F.2d 1031 (6th Cir. 1992), to conclude that Andreano has no
legitimate claim of entitlement in the approval of his plan to develop his property in accord with its
permitted use. Triomphe and Silver stand for the proposition that where a zoning board has
discretion to reject a land-use application, the applicant can have no legitimate claim of entitlement,
and thus no substantive due process claim. These cases are distinguishable from the instant case in
at least two critical respects.
The first important distinction is the source of “discretion” relied upon by the Court. In
Triomphe, the Court pointed to language in the Northwood City Code which noted that a “special
use permit may be granted,” thus indicating that the city had discretion to deny such a permit. 49
F.3d at 203. The Court in Silver identified a similarly broad discretionary mandate; in that case, the
zoning board could issue a conditional zoning certificate “if it [found] the proposed use desirable,”
after considering the effect of the proposed use on the general vicinity. 966 F.2d at 1036 (emphasis
in original). The Court described the relevant zoning resolution as giving the board “broad
discretion.” Id.
No. 03-4360 21
In contrast, in this case, the source of Westlake’s supposed discretion to reject Andreano’s
development plan is an uncodified 1990 Guide Plan which the majority finds is incorporated by
reference into the City’s Code. The majority’s argument (adopted from the district court) goes as
follows: because Westlake was required to consider the Guide Plan’s objectives when electing to
approve or reject a development plan, and because the 1990 Guide Plan (which, again, was never
formally adopted by Westlake) included the objective of completing the Crocker Road Extension,
“the City had ample discretion” to deny Andreano’s plan on the ground that it did not accommodate
the proposed extension.
“Discretion” to deny a plan because it does not accord with the City’s Code is quite different
than discretion to reject a plan in spite of its conformance with a zoning code, which is what
occurred in both Triomphe and Silver. Indeed, the former circumstance does not constitute
discretion at all; if Westlake was in fact rejecting Andreano’s plan on the ground that was not in
compliance with a genuine objective incorporated into its City’s Code, that would represent a
mandatory basis for rejection.
If Westlake’s intention to complete the Crocker Road Extension was undisputed, it could
point to that fact as mandating the rejection of Andreano’s application and there would be no issue
in this case. However, there is at least a genuine issue of material fact as to whether Westlake ever
planned to construct the Southern Extension. As noted above, the Extension remains unfinished
more than thirty years after it was first proposed and more than twenty-five years after the statute
authorizing it expired. If Westlake has no real plans to complete the Extension, then the Guide
Plan’s nine year-old “objective” was effectively moot. Westlake was also required to consider the
“spirit and intent” of the Code. WESTLAKE, OH CODE § 1220.05. A jury could conclude that the
“spirit and intent” of the Code did not include the construction of the Southern Extension, and that
No. 03-4360 22
Westlake therefore could not reject the plan on that basis.
The second important distinction between Triomphe and Silver and the instant case is that
in both of the prior cases, the applicants sought to use the land for something other than its permitted
use. In Triomphe, the plaintiff sought to build condominium units on land that was zoned “R-
Suburban Residential,” which required a “special use permit.” 49 F.3d at 199-200. In Silver, the
“permitted use” of the plaintiff’s parcel was for single-family residential dwellings. The plaintiff’s
proposed use was for “low density planned unit developments,” which was considered a
“conditionally permitted use” under the zoning code. 966 F.2d at 1031.
In contrast, in this case, Andreano contends that he simply attempted to use his property for
its permitted use under the zoning code (not subject to any conditions or “special use” requirements)
to construct single family, free-standing dwellings. Westlake has not disputed Andreano’s claim
in this regard. The holdings of Silver and Triomphe regarding the discretion to deny applications
for “special use” or “conditional” permits are therefore of limited applicability in this case.
There is no evidence that Westlake had discretion to deny Andreano’s application even if
it conformed with the 1990 Guide Plan and the other requirements of the Code, and there is at least
a genuine issue of material fact as to whether the stated basis for denying Andreano’s application
was valid. Construing the facts in the light most favorable to Andreano, as is required at this stage
of the litigation, see Combs v. Int’l Ins. Co., 354 F.3d 568, 576-77 (6th Cir. 2004) (citing Adickes
v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)), the evidence compels a conclusion that Westlake
had no basis for denying Andreano’s application and that Andreano possessed a legitimate claim of
entitlement in the use of his property for its permitted purpose.
Having established, at least for summary judgment purposes, that he has a legitimate claim
of entitlement, Andreano must next raise a genuine issue of material fact as to whether the state’s
No. 03-4360 23
administrative action is “arbitrary and capricious.” A state administrative action cannot survive a
due process attack if it “‘is not supportable on any rational basis’ or is ‘willful and unreasoning
action, without consideration and in disregard of the facts or circumstances of the case.’” Pearson,
961 F.2d at 1221 (citations omitted).
The majority points to Westlake’s stated desire to accommodate the Crocker Road Extension
as a rational basis for denying Andreano’s proposal, which would interfere with the still-hypothetical
Southern Extension. As just noted, the facts of this case create a genuine issue of material fact as
to whether Westlake has any real intention of ever completing the Crocker Road Extension. If a jury
concludes that Westlake does not intend to finish the Crocker Road Extension, then Westlake has
offered no rational basis for rejecting Andreano’s plan. The failure of a development plan to
accommodate a road that will never be built does not provide a municipality with a rational basis
for rejecting that plan.
Furthermore, the circumstances surrounding this case suggest that Westlake’s rejection of
Andreano’s plan was “willful and unreasoning.” Also as noted above, Westlake changed its rules
– specifically with respect to lot size – after Andreano had already submitted his application, and
then deemed him in violation of the new rules. Westlake did not attempt to retroactively apply its
new rules to any other applicants, although there were others whose proposed plans were out of
compliance with the new lot size ordinance. These actions suggest a “willful and unreasoning”
effort to deny Andreano’s application.
For the reasons just discussed, it seems clear that Andreano has raised genuine issues of
material fact with respect to his due process claim under Count I of the complaint, and the district
court erred in granting summary judgment to Defendants on that count. I therefore dissent from the
affirmance of that grant of summary judgment.
No. 03-4360 24
I also dissent from the majority’s resolution of Count II of Andreano’s amended complaint
because I am convinced for several reasons that a determination on the merits of this claim should
not be reached at this point. In Count II, Andreano alleges that Westlake’s condemnation action in
state court violates his equal protection and substantive due process rights. Andreano seeks money
damages, a preliminary injunction, and an injunction asserting that the condemnation action violated
state law.
Our precedent indicates that the proper course of action in this case might be to affirm the
denial of injunctive relief solely on the ground that the district court was precluded from granting
it by the Anti-Injunction Act, 28 U.S.C. § 2283, and to otherwise remand the claim under Count Two
to the district court with instructions that it should retain jurisdiction but abstain from ruling on the
claim pending the outcome of the condemnation proceedings in state court. See Martingale LLC
v. City of Louisville, 361 F.3d 297 (6th Cir. 2004); Forest Hills Utility Co. v. City of Heath, Ohio,
539 F.2d 592 (6th Cir. 1976).
This Court has previously invoked the Anti-Injunction Act to hold that it was prohibited from
enjoining a state court condemnation proceeding. See Martingale, 361 F.3d at 304. The Anti-
Injunction Act provides that “a court of the United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized by Act of Congress, or where necessary
in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. The Act
thereby creates “an absolute prohibition against enjoining state court proceedings, unless the
injunction falls within one of three specifically defined exceptions,” which are set forth in the
statutory language just quoted. Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng’rs,
398 U.S. 281, 286 (1970).
There is no relevant federal statute authorizing the grant of an injunction in this case. As for
No. 03-4360 25
the second exception, which applies “where necessary in aid of jurisdiction,” we noted in Martingale
that this exception has been applied “in only two scenarios: where the case is removed from the state
court, and where the federal court acquires in rem or quasi in rem jurisdiction over a case involving
real property before the state court does.” Martingale, 361 F.3d at 302. This case was not removed,
and although the claims relate to a property dispute, our jurisdiction in this matter is in personam,
not in rem. Therefore, this exception is likewise unavailable.
Finally, because there has been no prior federal decision relating to Andreano’s claims,
Andreano cannot show that an injunction is necessary “to protect or effectuate [the federal court’s]
judgments.” Id. at 303 (citing 28 U.S.C. § 2283). Thus, the Anti-Injunction Act applies in this case,
and settles Andreano’s claim for injunctive relief without need to reach the merits of the case. Lest
there be any doubt about the propriety of applying the Anti-Injunction Act where the parties have
not suggested it, it should be noted that we may consider it even where we do not have the benefit
of argument by the parties on the issue. Id. at 302 (citing Gloucester Marine Rys. Corp v. Charles
Parisi, Inc., 848 F.2d 12, 15 (1st Cir. 1988); Hickey v. Duffy, 827 F.2d 234, 243 (7th Cir. 1987)).
With respect to Andreano’s remaining claim for money damages stemming from the
condemnation action, both the district court and this Court are in error in reaching the merits of the
claim. The Supreme Court “has sanctioned a federal court's postponement of the exercise of its
jurisdiction in cases presenting a federal constitutional issue which might be mooted or presented
in a different posture by a state court determination of pertinent state law.” Allegheny County v.
Frank Mashuda Co. 360 U.S. 185, 189 (1959). Count Two of Andreano’s amended complain
presents just such a case, and the district court should therefore have abstained from ruling until the
conclusion of the state court condemnation proceedings. See Forest Hills Utility Co. v. City of
No. 03-4360 26
Heath, Ohio, 539 F.2d 592 (6th Cir. 1976) (affirming district court’s decision to abstain pending the
outcome of state court condemnation proceedings).
To conclude: under the rule adopted by the majority today, a plaintiff may be deprived of a
constitutionally-protected property right in the use of his property for its permitted purpose, based
solely on a municipality’s rather dubious assertion that it will one day use that same property for the
public benefit. Moreover, the majority holds that the plaintiff is not even entitled to present to a jury
the evidence concerning whether the municipality genuinely intends to follow through on its
pronounced plans for his land. And in its haste to slam the courthouse door on the plaintiff, the
majority oversteps its bounds, unnecessarily reaching the merits of claims that do not require such
a resolution. The result defies our precedent and a basic sense of fairness, and I must respectfully
dissent.
Andreano v. City of Westlake
Court: Court of Appeals for the Sixth Circuit
Date filed: 2005-06-23
Citations: 136 F. App'x 865
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