Fed. District Court MI Denies Summary Judgement in Retaliation Case Arising from Objections to Tree Ordinance

This post was authored by Matthew Loescher, Esq.

Plaintiffs Gary and Matthew Percy initiated this action under 42 U.S.C. § 1983 claiming that Defendants engaged in First Amendment retaliation, and vindictive enforcement in violation of the Fourteenth Amendment’s Equal Protection Clause in response to Plaintiffs’ objections to the Charter Township of Canton’s enforcement of its “tree ordinance.” The Charter Township of Canton filed a Counter-Complaint against 5601, Inc., a real estate business owned by Plaintiffs, which owned two parcels of property in the Township. The Township’s sixteen-count Counter-Complaint asserted violations of zoning, building, and fire prevention and protection ordinances or codes based on the lack of certificates of occupancy and the failure to post certificates of occupancy for buildings on the properties.

The Plaintiffs first presented evidence to the court suggesting that Thurston and Hamilton were decisionmakers as they were granted authority to interpret the ordinances they enforced and to determine whether those ordinances had been violated/ Conversely, the Township offered no evidence suggesting that their decisions were overseen by the department heads to whom they reported. The court noted that even if there was a question of fact as to whether Thurston and Hamilton were final decisionmakers, the evidence reflected that the officials who undisputedly held such authority were informed of and ratified the actions these code enforcement officers took. The Township conceded that actions by Faas, Goulet, and Creamer “could fairly be said to represent official policy of Canton Township.” Bob Belaire, then the head of the Township’s Public Works Department also was a likely decisionmaker. Creamer, the Township’s Chief Building Official, was involved in discussions with other Township officials and code enforcement officers regarding the Percys and the subject properties beginning with the initial tree dispute in April 2018. The record further reflected that Hamilton consulted with Creamer regarding the enforcement actions and violations noted, and Creamer signed the Counter-Complaint in this case. Moreover, the record indicated that Creamer’s statement to his ex-wife that those activities were the “byproduct of the lawsuit about the trees” and if you fight the Township “it gets ugly” could suggest to a reasonable jury that he knew the enforcement actions were retaliatory and, at the very least, failed to correct his subordinates’ unconstitutional behavior. Belaire also was copied on many of the communications involving the subject building enforcement activities. In light of the above, the court found a genuine issue of material fact as to whether the alleged retaliatory actions were taken pursuant to a municipal policy or custom.

The court next found that Gary Percy undisputedly challenged the tree fine when he contacted Williams. The record revealed that shortly thereafter Thurston sent follow-up emails to the State and County agencies – which the court noted could be viewed as encouragements for those agencies to take action – Parcel C. Hamilton began her enforcement activities shortly after the tree dispute developed. Additionally, new Zoning Ordinance and Fire Code violations were identified only after the Percys began speaking to the media and filed a counter-complaint challenging the constitutionality of the tree ordinance. Further supporting Plaintiffs’ position was the fact that Hamilton began asking about Parcels A and B within two weeks of Thurston’s email to Township officials, including Belaire, indicating that the Township had “other potential violations if the property owner is not cooperative” and within hours of Belaire’s inquiry as to whether Thurston had obtained the Percys’ cooperation regarding the tree dispute. Moreover, the Township had not conducted a “routine” inspection of the subject properties in about nineteen years. Accordingly, the court found genuine issues of material fact precluding summary judgment in favor of either side with respect to Plaintiffs’ claims against Defendants.

Lastly, the court found a genuine issue of material fact precluding summary judgment in favor of the Township with respect to its counterclaims alleging violations of the Zoning Ordinance and Building Code due to a failure to obtain CO’s. While the court noted there were no genuine issues of material fact with respect to whether COs were posted in the properties, as required under the Fire Ordinance, it held the Township’s ability to prevail on its counterclaims would be reserved until the trier of fact resolves Plaintiffs’ claims.

Percy v Charter Township of Canton, 2022 WL 738667 (3/11/2022)