Posted by: Patricia Salkin | October 23, 2008

Building Permit Constitutes a Property Interest But No Procedural Due Process Violation Found

In an unpublished opinion from the Sixth Circuit Court of Appeals, the Court determined that where a property owner who desired to demolish her garage and build a bigger garage received necessary approvals from the architectural review board and obtained a building permit from the Village zoning administrator, she did obtain a property interest in the permit because she immediately demolished the garage and started to build the new structure before she was issued a stop work order

Chandler had to obtain permission from the architectural review board because the proposed structure was taller than normally permitted under the zoning ordinance. She received the Board’s approval, however, the Board expressed concern that the garage constituted a two-story structure in violation of the zoning ordinance because of a proposed interior staircase.  Therefore they required her to obtain a variance from the zoning board of appeals.  At the zoning board hearing, neighbors objected to the garage, and the zoning board did not render a decision but rather remanded the matter back to the architectural review board for an explanation as to why they approved the structure that exceeded the height limitations in the zoning ordinance (which the architectural review board had authority to do).  Before the architectural review board could render a decision, Chandler revised her plan and removed the interior staircase, obviating the need for zoning board of appeals review.  The Village Chief Administrative Officer then granted Chandler the building permit since the architectural review board had already approved the height of the garage. Chandler immediately demolished the garage and began construction on the new one, while a neighbor wrote to the Village appealing the granting of the permit.  The next day, two days after the permit was issued, the Village notified Chandler that an appeal was pending, that there would be a hearing, and that if she continues to proceed with the building, she does so at her own risk.

The zoning board then denied the permit and Chandler appealed to the Village Council. The Council failed to resolve the issue, and sent it back to the architectural review board. The board reaffirmed their approval, sent it to the Council and the Council on review sent it back to the Board again claiming the Board provided insufficient notice to surrounding property owners regarding the meeting it held to review this. Frustrated with protracted hearings, Chandler initiated a lawsuit claiming that her procedural due process rights and equal protection rights were violated. Following a jury trial, Chandler was awarded $10,000 in damages and $132,733.33 in legal fees. The Village appealed.

The Sixth Circuit Court of appeals set forth the three-part test to establish a procedural due process claim: 1) a property interest protected by the Due Process Clause; 2) a deprivation of that interest under the meaning of that Clause; and 3) that the government did not afford her adequate procedural rights prior to depriving her of her protected interest.  The Court quickly determined that the building permit constituted a property interest in this case, and that she was deprived of this interest. However, the Court found that she received adequate procedural rights in terms of notice and an opportunity to be heard before the permit was revoked.

The Court noted that a violation of a local ordinance only constitutes a procedural due process violation where the procedures afforded to the complaining party (e.g., notice and opportunity to be heard) were also constitutionally deficient.  The Court noted Chandler received adequate notice and an opportunity to be heard both before and after the permit was revoked and that she was represented by Counsel. The Court continued, stating that the basis of Chandler’s due process claim was that the Village failed to comply with its own ordinances.  While this claim is insufficient for procedural due process, the Court stated, “Had Chandler raised a substantive due process claim, perhaps our analysis would be different.  In the context of substantive due process, ‘governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed…’” Lastly, in dicta, the Court noted that it appeared that the Village Council lacked a rational basis for subjecting Chandler to all of the hearings and for rescinding the building permit.  However, this was not the issue before the Court, and the Court reversed the jury award finding the Village was entitled to judgment as a matter of law and therefore Chandler was not a prevailing party and not entitled to attorney fees.

Chandler v. Village of Chagrin Falls, 2008 WL 4523585 (C.A. 6 (Ohio) 10/8/2008).

The opinion can be accessed at:


  1. nice blog………..

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