Vern Guindon v. Township of Dundee, Michigan

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0515n.06

No. 11-1084 FILED

UNITED STATES COURT OF APPEALS May 17, 2012
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk

VERN A. GUINDON; )
CAROLE L. GUINDON )
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
TOWNSHIP OF DUNDEEE, MICHIGAN; ) COURT FOR THE EASTERN
JOANNA UHL; TIRA LUPA; LINDA ) DISTRICT OF MICHIGAN
SONTAG; MARILYN LARSON; TOM )
WINKELMAN; ROLLO JUCKETTE; )
GARY LAZETTE; ART BRONSON; )
JEANETTE BROCKMAN; ED PROCTOR; )
GEORGE HORKEY; CHUCK RUEHS; )
ROBERT MADASKI; EDWIN A. )
BARANOWSKI, in their official and )
individual capacities, )
)
Defendants-Appellees. )

BEFORE: BOGGS, SUHRHEINRICH, and COOK; Circuit Judges.

SUHRHEINRICH, Circuit Judge. Plaintiffs-Appellants Vern A. Guindon (“Guindon”)

and Carole L. Guindon (“Carole”) (collectively “Plaintiffs”) appeal from the order of the district

court granting summary judgment to Defendants-Appellees the Township of Dundee, Michigan (the

“Township”) and various members of the Township Board of Trustees. The action arises out of a

series of disputes related to land use of both Plaintiffs’ properties and of properties adjacent to or

near Plaintiffs’ property. We AFFIRM.

1
 I. Background

Plaintiffs, husband and wife, are residents of the Township of Dundee in Monroe County,

Michigan. They have lived in Dundee Township since 1988 and have lived at their current property

on Wilcox Road since 1996 (the “20-acre parcel”). The area at issue is an agricultural zoning

district.

In 1999, Charles and Cindy Hiteshew purchased a lot adjacent to Plaintiffs’ property and

began building a house. Guindon suspected that the lot would be used to operate a trucking business,

and contacted Defendant Edwin Baranowski, Dundee Township building inspector. Guindon also

voiced his concerns during the public-comment portion of the Township Board meetings in later

1999 and early 2000. The Township Board instructed Baranowski and the Township attorney to

send violation letters, but by early 2001 the Township had stopped monitoring the situation, and the

Hiteshews resumed operation of the trucking terminal.

In early 2002, Guindon hired an attorney, W. Thomas Graham, who sent a letter to the

Township Board, urging it to enforce the applicable ordinances. Sometime after this letter,

Township Supervisor Joanna Uhl allegedly told Guindon that he could no longer discuss the

Hiteshews during the public comment portion of the Township Board meetings, and that any further

complaints would only be heard through his attorneys.

On April 17, 2002, the Township filed suit against the Hiteshews in state court. On August

30, 2002, the Township was awarded a permanent injunction prohibiting the Hiteshews from

operating a trucking terminal in the agricultural zoning district. Guindon nonetheless continued to

complain, through his attorney, at Township Board meetings that the injunction was not being

enforced. Supervisor Uhl stated at a Township Board meeting that the Township did not have the

2
resources to seek out violations of the zoning ordinances and would only respond to specific

complaints made to the ordinance officer. A newspaper account of the January 28, 2003 Township

Board meeting quoted Supervisor Uhl as stating that “We don’t have enough money to press every

situation to the limit . . . . We have services to provide. When you came here with a violation before,

it was clear how it impacted you; this information [presented to the Township Board] doesn’t explain

that.” By 2004, the Hiteshews were no longer operating any trucking business from their property

in Dundee.

In the meantime, around late 2002, Guindon and some neighbors complained that Mark and

Brenda York, whose property is adjacent to Hiteshew’s property and several hundred feet from

Plaintiffs’ land, were operating a commercial trucking terminal and landscaping supply business, in

violation of the zoning ordinances for the agricultural district. Guindon and the neighbors submitted

evidence to the Township Board. The Board took action in March 2003. The Board and the Yorks

entered into a Letter of Understanding, whereby the Yorks attested that their business was a nursery,

which is permitted in the agricultural-zoned district, and not a commercial trucking business.

Guindon nonetheless argued that the Yorks were operating a truck terminal, and alleged that the

Yorks had obtained a Michigan Public Service Commission license to operate a trucking terminal

at their property after they signed the Letter of Understanding. The Township took no further action

against the Yorks, however.

On October 4, 2004, Guindon asked the Township Board to be included on the agenda of the

October 12, 2004 Board meeting. The Board denied his request.

In October 2005, Plaintiffs bought an 11.321 acre-parcel (the “11-acre parcel”) of land in

Dundee Township from the Monroe County Road Commission for $45,000. The 11-acre parcel is

-3-
adjacent to the 20-acre parcel, being separated by an eighteen-foot wide gravel chip easement, and

is zoned for agricultural use. The 11-acre parcel is connected to M-50 by that same easement. In late

2005, Plaintiffs sought a building permit to construct a house on the parcel from Defendant

Baranowski, the Township’s building inspector. The zoning ordinance permits residences to be built

on agricultural-zoned property. Baranowski denied the request on the ground that the property did

not abut a public street, road, or highway as required by Section 5.11 of the Zoning Ordinances.1

Plaintiffs did not seek a variance, but appealed the decision denying them a building permit to the

Township’s Zoning Board of Appeals. On March 26, 2006, the Zoning Board of Appeals affirmed

the denial of the building permit. Plaintiffs appealed that decision to the Monroe County Circuit

Court. On February 5, 2008, the circuit court ruled that the Zoning Board of Appeals had not abused

its discretion, and affirmed the decision of the Township.

On January 4, 2007, Plaintiffs submitted a written request to the Township to transfer the 20-

acre parcel from the Township’s jurisdiction to the jurisdiction of the Village of Dundee, pursuant

to 1984 PA 425, Mich. Comp. Laws § 124.21 et seq., (“Act 425”), which authorizes the conditional

transfer of property between two or more cities, townships, and villages for an economic

development project. Mich. Comp. Laws § 124.22(1). On January 9, 2008, the Township decided

1
Section 5.11 provides:

No dwelling or building shall be erected on any lot or parcel of land in the Township
of Dundee that does not abut on a public street, road or highway, provided that this
Ordinance shall not be the basis for preventing the issuance of a building permit for
the ordinary repair or maintenance of any building that is already erected on the date
of the adoption of this Ordinance upon a lot or parcel of land that does not so abut
such a street or highway.

-4-
at its public meeting to put the negotiations on hold, pending resolution of a lawsuit Guindon had

filed.

A. Procedural History

On April 21, 2009, Plaintiffs filed suit pursuant to 42 U.S.C. §§ 1983, 1985, and 1986,

against Dundee Township, members of the Township Planning Commission and the Township

building inspectors, in their official and individual capacities, alleging that Defendants violated their

constitutional rights by failing to enforce zoning ordinances against Plaintiffs’ neighbors, by denying

them a building permit, and by delaying consideration of their request to transfer land to the Village

of Dundee. Count I alleged that the Defendants deliberately violated Plaintiffs’ rights under the

Takings Clause of the Fifth Amendment, the First Amendment right to free speech, and the Due

Process and Equal Protection Clauses of the Fourteenth Amendment, all in violation of 42 U.S.C.

§ 1983. Plaintiffs also alleged that the Defendants retaliated against them for exercising their First

Amendment rights to petition the government. In Count II, Plaintiffs raised a facial challenge to the

Dundee Township zoning ordinance as unconstitutionally vague. Count III alleged that Defendants

acted with common purpose to deprive Plaintiffs of their federal rights under the First Amendment,

the Due Process Clause, and the Equal Protection Clause, all in violation of 42 U.S.C. § 1985(3).

In Count IV, Plaintiffs alleged that Defendants failed to prevent these constitutional violations, in

violation of 42 U.S.C. § 1986. In Count V, Plaintiffs claimed that Defendants violated the Michigan

Right to Farm Act. Plaintiffs sought a declaratory judgment, an injunction, and damages.

Defendants moved for summary judgment. Plaintiffs filed a response. The district court

ordered supplemental briefing from Plaintiffs to clarify the specific factual bases for each of the

claims alleged in Counts III, IV, and V. On December 23, 2010, the district court granted summary

-5-
judgment to Defendants. First, the district court dismissed the Planning Commission Defendants,

because Plaintiffs had failed to allege how the Planning Commission or its members violated

Plaintiffs’ constitutional rights in their purely advisory role. Next, the district court granted

legislative immunity for the legislative acts of enacting, amending, and enforcing the zoning

amendments, as well as the Township’s management of Board meetings. As for the remaining

claims arising from the Board’s executive or administrative or discretionary functions related to the

processing of Plaintiffs’ land transfer request, the court granted qualified immunity to the Township

Board Defendants and Baranowski.

The district court then dismissed Plaintiffs’ First Amendment retaliation claims. Regarding

the delay of consideration of their land-transfer request, the court held that Plaintiffs offered no

support to show that Defendants were motivated by the filing of the suit itself, rather than the impact

of the lawsuit on the uses of land adjoining the land the Plaintiffs’ sought to have transferred.

Regarding Plaintiffs’ denial-of-review claim, the court noted that Plaintiffs failed to provide copies

of requests or other supporting facts to show that the Board refused to take any action on Plaintiffs’

three separate written requests for review of the denial of their building permit. The court also

rejected Plaintiffs’ claim that Defendants retaliated against them by directing third parties not to do

business with Guindon because he had filed suit against Defendants, because the only evidence

presented was an out-of-court statement by an anonymous Village employee, which was

inadmissible hearsay under Fed. R. Evid. 801, 802.

The district court dismissed Plaintiffs’ equal-protection claim because Plaintiffs did not

provide any factual support for their claim that similarly situated residents had been granted land

transfers.

-6-
 The court dismissed Plaintiffs’ due-process claim because Plaintiffs failed to provide any

additional factual bases to support their substantive and procedural due-process claims. Because the

court had dismissed all claims asserting violations of Plaintiffs’ individual constitutional rights, it

declined to address the Defendant building inspectors’ defense of qualified immunity.

Next, the district court considered Plaintiffs’ claims, brought pursuant to §§ 1985(3) and

1986, that Defendants conspired to deprive Plaintiffs of their constitutional rights and failed to

prevent a conspiracy to violate their constitutional rights (Counts II and IV). The district court

dismissed these claims on the ground that Plaintiffs failed to allege any facts to suggest that

Defendants entered into such a conspiracy.

The district court rejected Plaintiffs’ claim that the Township zoning ordinance related to the

building of structures is unconstitutionally vague. The court rejected Plaintiffs’ argument that the

sections relating to “buildable lots” and “area requirements” conflict with each other because

Plaintiffs did not explain or provide any factual support for the alleged conflict. The court also

rejected Plaintiffs’ claim that the terms “public street, road or highway” in ordinance 5.11 were

vague, because a person of ordinary intelligence could understand that use of the terms “public road”

in the ordinance clearly prohibited construction of a dwelling that only abutted a private right-of-

way.

The court also rejected Plaintiffs’ argument that Defendants violated the Michigan Right to

Farm Act, Mich. Comp. Laws § 286.471 et seq., by not letting them build a barn. The court found

no evidence to show that Defendants ever told Guindon he could not build a barn.

The court therefore granted Defendants’ motion for summary judgment and dismissed

Plaintiffs’ complaint. This appeal followed.

-7-
 II. Analysis

This court reviews a district court’s grant of summary judgment de novo, construing the

evidence and drawing all reasonable inferences in favor of the nonmoving party. Hirsch v. CSX

Transp., Inc., 656 F.3d 359, 362 (6th Cir. 2011). “Where the record taken as a whole could not lead

a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A. Immunity2

1. Legislative Immunity

Defendants maintain that they are entitled to absolute legislative immunity for all claims

arising out of the exercise of their legislative duties.3 Local legislators are absolutely immune from

liability when they act in their legislative capacities. Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998).

Legislative immunity applies to “all actions taken in the sphere of legitimate legislative activity.”

Id. (internal quotation marks and citation omitted). Whether an act is legislative depends on the

nature of the act, rather than the official’s motive or intent. Id. A court must consider first whether

the acts were legislative in form, i.e., whether “they were integral steps in the legislative process.”

Id. at 55. Second, a court must consider whether the defendant’s acts were “legislative in substance,”

i.e. whether they “bore all the hallmarks of traditional legislation,” including “a discretionary,

2
Plaintiffs do not appear to challenge the district court’s dismissal of the Township Planning
Commission Defendants. In any event, we agree with the district court that Plaintiffs failed to show
how these defendants, in their purely advisory role, violated Plaintiffs’
constitutional rights. We therefore affirm this ruling for the reasons stated by the district court in
its December 23, 2010 opinion.
3
The Township Board has administrative, see Mich. Comp. Laws § 41.1a et seq., and
legislative powers, id. § 41.70.

-8-
policymaking decision implicating the budgetary priorities of the city and the services the city

provides to its constituents.” Id. at 55-56. But, as this court has observed, “the various activities of

most local or municipal officials cannot be characterized as only administrative, legislative, or

judicial. Instead, the scope of immunity depends on the nature of the activity involved.” Haskell

v. Washington Twp., 864 F.2d 1266, 1277-78 (6th Cir. 1988); see also Smith v. Jefferson Cnty. Bd.

of Sch. Comm’rs, 641 F.3d 197, 216 (6th Cir. 2011) (en banc) (“When examining the activities of

an entity such as the Board, we find little guidance in formalistic distinctions between ‘legislative’

and ‘adjudicatory’ or ‘administrative’ government actions.”) (internal quotations marks, alterations,

and citation omitted), cert. denied, 132 S. Ct. 103 (2011). The burden is on Defendants to establish

the existence of absolute legislative immunity. Canary v. Osborn, 211 F.3d 324, 328 (6th Cir.

2000).

Absolute immunity is important for local legislators. “[T]he time and energy required to

defend against a lawsuit are of particular concern at the local level, where the part-time citizen-

legislator remains commonplace.” Bogan, 523 U.S. at 52. Further, “the threat of liability may

significantly deter service in local government, where prestige and pecuniary rewards may pale in

comparison to the threat of civil liability.” Id.

The district court ruled that Defendants were entitled to absolute legislative immunity for all

claims related to (1) the passage or enforcement of a zoning ordinance, and (2) management of

Township meetings. The court further held that the Township Board Defendants were not entitled

to legislative immunity for their executive or discretionary decision to delay Plaintiffs’ land-transfer

request.

-9-
 In attempting to ascertain which acts Defendants deem legislative and entitled to absolute

immunity, we will let Defendants’ brief on appeal act as our guide, and address only those claims.

We agree that the passage of zoning ordinance is a legislative act, see, e.g., Bogan, 523 U.S.

at 55 (holding that the defendant’s “acts of voting for an ordinance, were, in form, quintessentially

legislative”); R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 438 (6th Cir. 2005) (holding that

passage of a sign ordinance was a purely legislative act), but such behavior is not at issue here.

Instead, Plaintiffs challenged the Board Defendants’ denial of Plaintiffs’ building permit request,

their refusal to enforce local laws against the Hiteshews and Yorks, and their decision to delay

processing Plaintiffs’ transfer request. These acts are all in the nature of administrative and

executive functions and therefore not entitled to absolute legislative immunity. See, e.g., Jaggers

v. City of Alexandria, No. 08-5213, 2009 WL 233244, at *4-6 (6th Cir. Feb. 2, 2009) (holding that

defendant city council members could not establish as a matter of law under Fed. R. Civ. P. 12(c)

that their decision to deny the plaintiffs’ proposed site-development plan for a gas

station/convenience store was legislative; observing that where “the zoning action involves applying

existing zoning rules to a specific property, the question of legislative immunity becomes more

difficult because applying known rules and legislation to make a zoning decision in this way is more

likely to be administrative rather than legislative”); Bryan v. City of Madison, Miss., 213 F.3d 267,

273 (5th Cir. 2000) (holding that the mayor’s vetoes of the city board’s determination that the

development plan satisfied city zoning ordinances was nonlegislative and within the realm of

enforcement); id. at 274 (mayor’s decisions to delay the board’s approval of proposed development

plans at various board meetings was also nonlegislative). Cf. id. (holding that mayor’s act of placing

a rezoning issue back on agenda at an unscheduled meeting with the board of aldermen without

-10-
notifying the developer or property owner was a legislative act entitled to legislative immunity).

Defendants have not met their burden of establishing that these acts were somehow legislative in

substance.

The decision not to place Guindon on the agenda was a legislative act. See Hogan v. Twp.

of Haddon, 278 F. App’x 98, 104 (3d Cir. 2008) (holding that the mayor’s use of a gavel to limit the

time the commissioner spoke at meetings and his actions in establishing the time and agendas for

meetings were entitled to legislative immunity); Afjeh v. Vill. of Ottawa Hills, No. 3:09 CV 2672,

2010 WL 1795973, at *3 (N.D. Ohio May 5, 2010) (holding that the defendants’ refusal to allow the

plaintiff speak for more than one minute on a specific issue under consideration by the village

council was entitled to absolute immunity). Whether Defendants’ decision to ban Guindon from

further comment about the Hiteshews during the open comment period was a legislative act is a

closer question. Compare Kamplain v. Curry Cnty. Bd. of Comm’rs, 159 F.3d 1248, 1252 (10th Cir.

1998) (holding that the defendant county board of commissioners’ vote to ban the plaintiff from all

future commission meetings and to prohibit him from speaking at or participating in meetings were

administrative acts), and Hansen v. Bennett, 948 F.2d 397, 402-03 (7th Cir. 1991) (regulating

speech during open comment period was an administrative action; no legislative business was

conducted during the open comment segment of the meeting), with Timmon v. Wood, 633 F. Supp.

2d 453, 460 (W.D. Mich. 2008) (holding that “[a] city council is acting in its legislative capacity

when it exercises its investigatory power by presiding over a public-comment period”); see also

Afjeh, 2010 WL at 1795973, at * 2 (noting that “[s]everal courts have held that moderating the

speech and activity of public attendees at a local legislative meeting is legislative activity protected

-11-
by absolute immunity”) (citing cases). At a minimum, Defendants are entitled to qualified immunity

as to this claim.

2. Qualified Immunity

Public officials who perform discretionary duties within the scope of their employment are

“shielded from liability for civil damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is not a defense to liability; it is an

absolute immunity from suit. Saucier v. Katz, 533 U.S. 194, 200-01 (2001), overruled on other

grounds by Pearson v. Callahan, 555 U.S. 223 (2009). Once a defendant asserts the doctrine of

qualified immunity, the plaintiff bears the burden of satisfying a strict two-part test. Barker v.

Goodrich, 649 F.3d 428, 433 (6th Cir. 2011). The plaintiff must show: (1) a violation of a

constitutional right, and (2) the right at issue was clearly established at the time of the defendant’s

alleged misconduct. Id. We may address these tests in any order. Pearson v. Callahan, 555 U.S.

223, 236 (2009).

To find that a right is “clearly established,” “the contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing violates that right.” Leonard

v. Robinson, 477 F.3d 347, 355 (6th Cir. 2007) (internal quotation marks omitted). In the “light of

pre-existing law[,] the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640

(1987).

Qualified immunity protects “all but the plainly incompetent or those who knowingly violate

the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The Supreme Court has admonished lower

-12-
courts “not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 131

S. Ct. 2074, 2084 (2011).

Thus, of the foregoing claims mentioned, we will consider for purposes of qualified

immunity Defendants’ denial of a building permit; denial of land-transfer request; and denial of

Guindon’s right to speak during public comment.

B. First Amendment Claims

To sustain a claim under 42 U.S.C. § 1983, a plaintiff must plead and prove that (1) he was

deprived of a right secured by federal law, (2) by a person acting under the color of state law. Flagg

Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722

(6th Cir. 2010). Defendants do not dispute that they are state actors. We therefore turn to the alleged

deprivations of Plaintiffs’ constitutional rights.

To prove retaliation for exercise of First Amendment rights, the plaintiff must show that (1)

he engaged in protected conduct; (2) an adverse action was taken against him that would deter a

person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action

was motivated at least in party by the plaintiff’s protected conduct. Fritz, 592 F.3d at 723 (citing

inter alia Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc)). Once the plaintiff

raises an inference of discriminatory animus, the burden shifts to the defendant to demonstrate that

it would have taken the same action anyway. Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002)

(citing Thaddeus-X, 175 F.3d at 399).

1. Protected Conduct

It is not disputed that Plaintiffs’ public comments at Township Board meetings are protected

conduct under the First Amendment. See Fritz, 592 F.3d at 723. The filing of a lawsuit to redress

-13-
grievances is also clearly protected activity under the First Amendment. Eckerman v. Tenn. Dep’t.

of Safety, 636 F.3d 202, 208 (6th Cir. 2010). Defendants do not dispute this element either.

2. Adverse Actions4

We now address the following acts of alleged retaliation presented by Plaintiffs on appeal.

a. Publicizing Damaging Information

Plaintiffs contend that Defendants publicized facts in the Letter of Understanding the

Township entered into with the Yorks that damaged Plaintiffs’ reputation. Specifically, Plaintiffs

complain that the Township’s letter cited Plaintiffs as the cause for the Township’s actions, despite

the fact that other residents also complained. They claim that, as a result, the Yorks sued them,

causing them to incur significant legal expenses.

This claim is without merit. Guindon admits that he made his complaints about the Yorks

a matter of public record. Furthermore, the suit filed by the Yorks was unrelated to Plaintiffs’

comments and complaints at Township Board meetings. Instead, the Yorks sued Plaintiffs for

stalking, infliction of emotional distress, interfering with their business relationships, and for making

false statements to unnamed government agencies. R. 41-4. The matter was settled by the parties.

R. 41-5.

b. Limiting Right to Speak at Public Meetings

The district court did not specifically address this claim. Nevertheless, the record reflects

that the Township did not violate Plaintiffs’ constitutional right to speak at public meetings. The

Township minutes reflect that Vern Guindon was a frequent guest and speaker at the Township

4
Alleged instances of retaliatory actions by Defendants are scattered across Plaintiffs’ brief.
We address only those properly raised with supporting argument, found in pages 22-32 of Plaintiffs’
brief, and not barred by absolute immunity.

-14-
Board meetings and the Planning Commission meetings. R. 32-17. To the extent Guindon was

limited to speaking through his attorney regarding the Hiteshews, even assuming any constitutional

error, we hold that the right to address this issue personally was not clearly established. It was

reasonable for Defendants to believe that because Plaintiffs had retained an attorney as to the

Hiteshew matter, all communication should proceed through counsel.

c. Delay of Transfer Request

Plaintiffs contend that the Township’s delay in processing their land transfer pursuant to Act

425 was retaliation for filing suit in Monroe County Circuit Court. The Township acknowledges that

it delayed consideration of Plaintiffs’ request, and that the delay was related to the litigation in state

court. However, the Township states that retaliation was not the motive. Rather, the Township

explains that, in the state-court action, Plaintiffs sought reversal of the Zoning Board of Appeals’s

decision affirming the Board’s denial of a building permit because the 11-acre parcel did not abut

a public highway as required by Section 5.11.

We agree with the district court that

[t]he Guindons provide[d] no support to show that Defendants were motivated by the
filing of suit itself, rather than the impact of the law suit on the uses of land adjoining
the Guindons’ land to be transferred. Because approval of a land transfer request is
purely discretionary, Defendants had every right to delay or even deny Plaintiffs’
request. Although specifics regarding the pending state law suit are not provided by
either party, the outcome of the law suit would determine what the adjoining property
could be used for and what structures could be built on it. Land transfers between the
Township and Village require the approval of both municipalities. The authorized
uses of adjoining property would certainly be a factor two municipalities would
cconsider [sic] before agreeing to transfer land, and therefore, it is very reasonable
that the Township would await resolution of the state suit before entertaining a land
transfer request.

-15-
R. 42 at 21. We also fail to see how the delay in deciding a land-transfer request would chill an

ordinary person from seeking redress through the courts. This contention is without merit.

d. Denial of Building Permits

Plaintiffs claim that Defendants’ denial of their request for a building permit was retaliatory,

as revealed by the fact that they denied Plaintiffs’ claim without explanation. However, the record

reflects that Defendant Baranowski sent two letters to Plaintiffs, explaining that they could not build

on the property because of Township Zoning Ordinance 5.11. The fact that Defendants sent the

denial letters after the ten-day period for approvals specified in Township Zoning Ordinance 21.1

does not create an inference of unconstitutional behavior on the part of Defendants. Plaintiffs’

remaining assertions are not supported by the record.

Plaintiffs also claim, and Guindon testified in his deposition, that Defendants would not

permit them to build a barn. Plaintiffs state that Baranowski confirmed that the Township had

required building permits to build barns. However, Baranowski also stated that the rule had changed

while he was building inspector, and that as long as a resident “me[]t the setbacks” he could build

an agricultural building. R. 32-21 at 88. Moreover, Plaintiffs never appealed this alleged denial by

Baranowski, despite the fact that they appealed the denial of the request to build a house.

Plaintiffs have not met their burden of establishing an adverse action motivated by Plaintiffs’

protected activity that would chill a person of ordinary firmness from seeking redress of their

grievances.

e. Directing Others Not to Deal with Guindon

Plaintiffs claim the Township also retaliated against them by directing third parties not to

employ or otherwise do business with Guindon. If true, this would establish the second element of

-16-
a retaliation claim. See Fritz, 592 F.3d at 725-26. However, the only proof they provide is the

Declaration of David C. Hoffman, which states that he was told by an unidentified Village of Dundee

employee that the reason Guindon was not hired for certain jobs was because of threats made by the

Township against a non-party third person. Fed. R. Civ. P. 56(c)(4) provides that an affidavit

supporting or opposing a motion for summary judgment be based on personal knowledge of the facts

that would be admissible in evidence. Hoffman’s declaration does not meet this standard. Rather,

the averments show that the source of Hoffman’s information was an unnamed Village of Dundee

employee. Because offered to prove the truth of the matter asserted, Hoffman’s declaration is

inadmissible hearsay under Fed. R. Evid. 801 and 802. Plaintiffs have not met their burden under

Fed. R. Civ. P. 56.

C. Equal-Protection Claim

Plaintiffs claim they have been denied equal protection because the Township failed to act

on their Act 425 land-transfer request while granting all others brought before the Township. Even

if this is the case (although Plaintiffs have no offered proof to this effect) Plaintiffs have not

established that they were treated differently than other similarly situated residents. To state an

equal-protection claim, the plaintiff must show that the government treated similarly situated persons

differently. See Silver v. Franklin Twp., Bd. Of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir.

1992). As the district court explained, Plaintiffs provided no factual support to show that any other

resident who was involved in a lawsuit with the Township was granted a land-transfer request.

D. Due-Process Claims

Plaintiffs claim that Defendants denied them of substantive due process by (1) continuing to

deny their requests for a land transfer even though there is no longer a pending lawsuit, (2) denying

-17-
Plaintiffs a building permit when there is no proof that their property did not abut a public road, and

(3) arbitrarily applying and interpreting the “vague” Township Zoning Ordinance to Plaintiffs’

property.

Plaintiffs’ procedural-due-process claims are based on the Township’s (1) denial of his

requests to be put on the agenda, (2) failure to provide Guindon with notice before depriving him

of his liberty interest in working at construction-related jobs for companies that do business with the

Township, and (3) failure to provide Plaintiffs with notice and an opportunity to be heard before

“delaying” their land-transfer request.

Plaintiffs criticize the district court for failing to review or analyze any of these claims.

However, we agree with the district court that, because all of these claims are derivative of Plaintiffs’

claims asserting violations of their individual constitutional rights, and those claims lack merit, we

need not address any alleged substantive or procedural-due- process violations.

E. Facial Challenge to Zoning Ordinance

Plaintiffs complain that Section 5.11 is unconstitutionally vague and that the district court

erred in holding that the zoning ordinance was not void for vagueness. This claim is barred by res

judicata. Bates v. Twp. of Van Buren, 459 F.3d 731, 734 (6th Cir. 2006) (stating that Michigan’s

res judicata doctrine “bars not only claims already litigated, but also every claim arising from the

same transaction that the parties, exercising reasonable diligence, could have raised but did not”)

(internal quotations and citation omitted). Plaintiffs could have raised this issue in the Monroe

County Circuit Court when they appealed the denial of Zoning Board of Appeals’ decision. Id. at

734, 737.

-18-
 F. Conspiracy Claims

Plaintiffs maintain that Defendants conspired to deprive them of their constitutional rights

and failed to prevent a wrongful constitutional conspiracy, in violation of 42 U.S.C. §§ 1985(3),

1986. The record contains absolutely no proof to support these claims. Furthermore, “‘conspiracy

claims must be pled with some degree of specificity and . . . vague and conclusory allegations

unsupported by material facts will not be sufficient to state such a claim.’” Ctr. for Bio-Ethical

Reform, Inc. v. City of Springboro, 477 F.3d 807, 832 (6th Cir. 2007) (quoting Gutierrez v. Lynch,

826 F.2d 1534, 1538–39 (6th Cir. 1987)). Plaintiffs have failed to allege any facts to support their

claim that Defendants conspired to deprive, or neglected to prevent a conspiracy to deprive, Plaintiffs

of their constitutional rights.

G. Michigan Right to Farm Act

Plaintiffs allege that the Township has violated the Michigan Right to Farm Act, Mich.

Comp. Laws § 286.471, by restricting their use of their property for farming purposes. Although

Plaintiffs claim that Defendants would not allow them to build a barn, the record reflects merely that

Baranowski denied their request to build a house on the 11-acre parcel. The record does not reflect

that Plaintiffs submitted a request to build a barn or that the Township has taken any steps to prevent

Plaintiffs from building one. Furthermore, the Michigan Right to Farm Act was enacted to “prohibit

nuisance litigation against a farm or farm operation.” Northville Twp. v. Coyne, 429 N.W.2d 185,

186 (Mich. Ct. App. 1988). It authorizes a farm operation to recover from the plaintiff costs and

expenses incurred if it prevails in a nuisance action in connection with the defense of the action.

Mich. Comp. Laws § 286.473. Plaintiffs present no authority for the proposition that the Act enables

them to sue the Township. The Township never instituted new proceedings against them.

-19-
 This claim is therefore without merit.

III. Conclusion

Plaintiffs’ claim that they were deprived of their First Amendment rights because they were

not placed on the agenda is barred by legislative immunity. Plaintiffs’ claim that they were banned

from speaking during the open comment period is defeated by Defendants’ qualified immunity. The

remaining claims must be dismissed because Plaintiffs failed to establish the violation of any

constitutional right at all. The judgment of the district court is AFFIRMED.

-20-