Posted by: Patricia Salkin | April 22, 2017

Sixth Circuit Court of Appeals Dismisses Takings, Due Process, and Equal Protection Claims as Unripe in Claim Against Barbershop Home Occupation

The Plaintiff/Appellants Floyd Beech and Marion Beech brought a suit alleged that by permitting the Beeches’ neighbor, Calvin Malone, to operate a barbershop in his home, the City of Franklin effected an unconstitutional taking of the Beeches’ property and violated the Beeches’ rights to equal protection and due process. Malone has operated a barber shop at this location since either 1989 or 1999. Specifically, the Beeches alleged that the City’s failure to enforce its zoning ordinances against Malone “constituted a deliberate taking, under color of law, in violation of the Petitioners’ federal rights guaranteed them under the Seventh Amendment to the Constitution of the United States.” The district court granted the City of Franklin’s motion for summary judgment, and plaintiffs appealed.
The court first noted that the Tennessee Supreme Court recognizes “nuisance-type takings” as compensable under the inverse condemnation statute. Since the Beeches’ primary concern was the impact of Malone’s barbershop on their property, their claim was more properly be characterized as a nuisance-type taking. While the Beeches brought their claims in state court, they failed to bring a claim under Tennessee’s inverse condemnation statute, Tennessee Code Annotated § 29-16-123, seeking compensation for a regulatory taking. Because the plaintiffs did not utilize available and adequate state-court procedures to seek compensation, the court found the Beeches’ federal regulatory-takings claim did not meet the requirement of prong-two ripeness. Furthermore, because the federal regulatory-takings claim was not ripe, the ancillary due-process and equal-protection claims were also not ripe. Accordingly, the court remanded the case to the district court with instructions to dismiss the case.
Beech v City of Franklin, TN, 2017 WL 1403201 (6th Cir. CA 4/19/2017)


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