Posted by: Patricia Salkin | October 2, 2011

6th Circuit Finds No Violation of Equal Protection During Application Process for Special Use Permit Including Involvement of Township Counsel

Schellenberg and Riggle appealed a decision of the district court granting summary judgment to the Township where they had alleged that they were denied Equal Protection during an unfavorable application process for a special use permit. They had applied for a cluster-housing special land use permit to build a second house on their three acres of property.  They desired to build on 1.5 acres and reserve 1.5 acres as undeveloped land, and the zoning ordinance had a one acre minimum for the dwelling.  The zoning ordinance required the plaintiffs to apply for a special land use permit, and following submission they were notified of potential sewage disposal problems on their proposed land division, as well as deficiencies in their application.  The planner told the plaintiffs that their application would be considered withdrawn unless they supplemented it with the required information within 30 days. The plaintiffs did submit supplemental  data timely to the Commission which they claimed cured any problems with their application.  The Commission denied the application, and although the plaintiffs were not present at that meeting, they acknowledged receiving notice that the application was to be considered at that time. They received notice of the outcome about three weeks after the meeting.   There was a discrepancy as to whether the 120-day waiting period for the right to file a new application had elapsed and whether one was required.  Rather than filing a new application, they filed a lawsuit in state court appealing the denial of the application alleging it was arbitrary and capricious and unfounded, and that it resulted in a temporary taking of their property.  While the state action was pending, they filed suit in federal court alleging a violation of their Equal Protection rights by subjecting them to disparate treatment and illegitimate animus during the application process.   They claimed that the Township imposed requirements on them not imposed upon others and that Township employees harbored ill-will towards them arising out of numerous previous disputes over the years that had resulted in litigation.

The state court dismissed the case and the plaintiffs sought reconsideration and moved to disqualify the judge based on allegations of bias and financial interest in the matter.  These motions were denied and no appeal followed.  The federal district court granted summary judgment to the Township, finding that the plaintiffs had failed to establish a cognizable class of one equal protection claim. Although the plaintiffs pointed to owners of an adjacent property who had received a permit, the court made it clear that sewage issues were not present in that case.

The Sixth Circuit explained that to prevail on a class of one equal protection claim, “the plaintiffs must provide that the government treated similarly-situated individuals differently.”  The plaintiffs argued that the Court was required to consider all property owners in the township who apply for a special land use permit for purposes of equal protection analysis.  The Court disagreed, citing that “bare allegations that other applicants, even all other applicants, were treated differently is insufficient” without a showing that these applicants were similarly situated to the plaintiffs.  The Court found that their argument that they were singled out was insufficient to permit an inference of unlawful discrimination.  Although the Court could have stopped here, they also commented that even if the plaintiffs had made a case for disparate treatment, they did not establish that the Township lacked a rational basis for requesting legal counsel’s involvement in the matter, noting that at the time of the application process, the plaintiffs had previously filed at least three lawsuits against the Township, and that given this history of legal disputes, the Township’s decision to include their counsel in the review of the application was “eminently reasonable.”  Lastly, the Court did not find the Commission imposed more stringent requirements on the plaintiffs, but rather they were simply requested to file a complete application. Lastly, the plaintiffs were no able to prove that they were treated less favorably than other applicants.

Schellenberg v Township of Bingham, 2011 WL 3835672 (6th Cir.(Mich) 8/31/2011)

The opinion can be accessed at: http://www.ca6.uscourts.gov/opinions.pdf/11a0646n-06.pdf


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