Posted by: Patricia Salkin | October 6, 2015

Sixth Circuit Court of Appeals Finds Merit in Retaliation and Equal Protection Claims Over Requested Special Approval Land Use Permit for Molding Company and No Qualified Immunity Applies

In 1993, the Patereks, owners of PME, an injection molding company, sought to relocate their business within Macomb County, Michigan to the Village of Armada. The Patereks found a former high school auto shop that suited their needs and they purchased the building. The garage, however, was located in a neighborhood with zoning restrictions that limited commercial activity to “general business,” and injection molding was classified as a “light industrial activity.” The Patereks could commence operations at the garage only if they first obtained a Special Approval Land Use permit (“SALU”) by successfully petitioning the Village of Armada Planning Commission. Plaintiffs John and Cynthia Paterek, along with their company Paterek Mold & Engineering, Inc. (“PME”), appealed the district court order granting summary judgment in favor of Defendants Ben Delecke, Commissioner of the Village of Armada Planning Commission, and the Village of Armada (collectively “Defendants”), in this § 1983 action. Specifically, Plaintiffs appealed the adverse judgment on their First Amendment retaliation, substantive and procedural due process, and equal protection claims. Plaintiffs also appealed the district court’s decision to dismiss two motions seeking to hold Defendants in contempt of court.

In Plaintiffs’ retaliation claim, the letter from the Village Council threatening Paterek’s removal from the DDA chairmanship, in concert with the timing of his removal from the DDA following shortly after his dispute with the Planning Commission, constituted strong circumstantial evidence of a retaliatory motive. The Village’s disparate treatment of Paterek during the outside storage dispute and Delecke’s strained reading of the SALU to prohibit a barbeque grill from a lunch area under the theory that it constituted “outside storage of any materials, supplies, or parts” provided additional circumstantial evidence that, when considered together, was sufficient for the court to preclude summary judgment. Likewise, as to the substantive due process claim, the court found a reasonable jury could find that Defendants acted arbitrarily and capriciously in deciding to: issue outside storage citations based on Paterek’s barbeque grill; seek prosecution against Paterek for his failure to apply for a new SALU; and issue Paterek a COO that restricted his operating hours beyond that authorized by his pre-existing SALU for the workshop. This was due in large part to Delecke admitting to handling Paterek in a different manner than other business owners; and Delecke’s assertion that a barbeque grill (situated next to an authorized lunch area) constituted outside storage strains credulity. Moreover, the decision to withhold Plaintiffs’ building permits for the apartment until Plaintiffs applied for a new COO at the workshop, in the Building Inspector’s own words, was odd.

Plaintiffs’ sole contention on their procedural due process claim was that they were not afforded any notice with regards to the Planning Commission meeting where Delecke threatened to revoke Plaintiffs’ SALU and warned that Plaintiffs would be ticketed if they failed to conform to Delecke’s understanding of what items constituted outside storage. However, this claim failed since their SALU was not actually revoked.

On their Equal Protection claim, Plaintiffs showed a number of incidents concerning businesses that were allowed to operate without a COO, or were issued a COO after a failed inspection, or were not subjected to inspection prior to being granted a COO when the business had previously been operated under different ownership. Because a jury could reasonably find, that PME was treated differently, not on account of any rational basis, but instead due to animus, this claim survived summary judgment. Finally, viewed in the light most favorable to Plaintiffs, the facts suggested that Delecke used his government post to harass and retaliate against Plaintiffs by causing tickets to be issued and by denying Plaintiffs the rights bestowed to them under their SALUs. Thus, Delecke was not entitled to qualified immunity. Similarly, the court found that the Village could also be found liable under a theory of municipal liability.

Paterek v Village of Armada, 2015 WL 5210554 (6th Cir. CA (MI) 9/8/2015)


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