Posted by: Patricia Salkin | July 10, 2008

Sixth Circuit Court of Appeals Finds Procedural Due Process Claim was Ancillary to Takings Claim and Unripe for Review

Landowners sought to rezone their farmland to a zone allowing for a mobile home park and other residential development.  The Township Board denied their application for rezoning based on its conclusion that the proposed rezoning would have a significant impact on traffic, education, and law enforcement.  The landowners also asked the Township about the possibility of obtaining a variance, but the Township stated that the Zoning Board of Appeals did not have jurisdiction to change a zoning classification for any property. 

In state court, neither the trial court nor the appellate court reached the merits of the landowners’ case because the landowners had not sought nor been denied a use variance from the Zoning Board of Appeals.  The landowners then requested a use variance from the Zoning Board of Appeals, which the Board denied, and the landowners filed suit in federal court, asserting various claims:  1) deprivation of procedural due process, 2) deprivation of substantive due process, 3) violation of equal protection rights, 4) violation of the Takings Clause, and 5) violation of 42 U.S.C. § 1983.

The Sixth Circuit affirmed the District Court’s grant of summary judgment for the Township.  It held that the landowners had not fully satisfied the rule of Williamson County v. Hamilton Bank, 473 U.S. 172 (1985), which requires a plaintiff bringing a takings claim to first pursue, and be denied, available remedies in state court.  It further concluded that the landowner’s procedural due process claim was ancillary to the takings claim and subject to the same state-court exhaustion requirements.  The Court also rejected the landowner’s substantive due process, equal protection, and § 1983 claims. 

Braun v. Ann Arbor Charter Twp., 519 F.3d 564 (6th Cir. 3/13/2008 )

The opinion can be accessed at:

Special thanks to John Delaney, Esq. of Linowes and Blocher, LLP in Bethesda, MD for contributing this abstract. You can contact him at: .  This case and others will be discussed by Mr. Delaney att he August 2008 ALI-ABA Land Use Institute, see:



  1. I am the attorney for the Property Owners in this case.

    Of note, no briefing or argument occured on several grounds on which the 6th Circuit based its decision; namely, no one argued below or in 6th Circuit or at oral argument about “protected property interests” or failure to state a claim issues; the case arose purely on jurisdictional issues. On that score, the 6th Circuit’s holding the pro. due process claim are subject to Williamson County (you have to seek compensation for a taking before you can raise a tradition pro d.p. claim?) conflicts with at least 4 other circuit decisions. The court was informed of this, but recently denied rehearing.

    A cert petition challenging Williamson County, as well as Court’s narrow view of federal jurisdiction over pro due process, will be forthcoming.

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