Bauman v. Tittabawassee, Township of
Filing
17
ORDER denying 10 Motion for Preliminary Injunction. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ANDREW BAUMAN,
Plaintiff,
Case No. 14-cv-12841
v.
Honorable Thomas L. Ludington
TOWNSHIP OF TITTABAWASSEE,
Defendant.
__________________________________________/
ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Andrew Bauman initiated this case by filing a complaint on July 21, 2014. He
alleges that Defendant Township of Tittabawassee (“Township”) violated his substantive due
process rights under the Fourteenth Amendment by constructing a sidewalk on his property. At
the time of filing his complaint the sidewalk had not yet been constructed. Bauman moved this
Court for a temporary restraining order to enjoin the installation of the sidewalk. That motion
was denied. The Court directed Plaintiff to serve the Township and then, if he so chose, to file a
motion for a preliminary injunction. Plaintiff served the Township and then filed motion for a
preliminary injunction. A hearing on the motion was held on October 8, 2014.
I.
In his complaint Bauman alleges that his substantive due process rights were violated
through the “installation of a sidewalk upon the Property [of Bauman].” ECF No. 1, Pl. Compl.
at ¶20. He claims that “[t]he various ordinances [governing the sidewalk] fail to survive
substantive due process review for failing to be narrowly tailored to serve a compelling state
interest.” Id.
A.
Bauman owns a piece of property commonly known as 10285 Scott Road in Freeland,
Michigan (“Property”). Freeland is an unincorporated community located with the Township of
Tittabawassee. The Defendant Township “is a municipal corporation formed under the laws of
the State of Michigan[.]” ECF No. 10, Pl. Mot. Br. at 3. In 1999, the Township adopted
Ordinance 58-33. ECF No. 13, Def. Resp. Ex. 2 at ¶6. That ordinance mandates sidewalks on
both sides of certain designated roads within the township. Id., Ex. 3 at 1-2. Scott Road is one of
these roads.
B.
Recently, the Township decided to construct a sidewalk on or near Bauman’s property
pursuant to Ordinance § 58-33. Part of the sidewalk construction took place on a parcel of land to
the east of Bauman’s driveway. Both parties agree that this construction did not take place on
Bauman’s land. See ECF No. 13, Def. Resp. Ex. 2 at ¶4; ECF No. 14, Pl. Reply Br. at 3. Another
section of construction occurred, as Bauman alleges, across his property. ECF No. 14, Pl. Reply
Br. at 3. According to the Township, they “offered Plaintiff $2500.00 if the Sidewalk were
placed on his property.” ECF No. 13, Def. Resp. Ex. 2 at ¶5. Defendant rejected the offer. Id.
The Township contends that the land on which the sidewalk was in fact constructed “is located
within the Saginaw County Road Commission right of way.” ECF No. 13, Def. Resp. Ex. 2 at
¶4. Plaintiff asserts that even if that is true he “is the owner of property and has a public sidewalk
which crosses his property, with no fee title in favor of the Township or the Road Commission to
the west of Plaintiff’s driveway.” ECF No. 14, Pl. Reply Br. at 3.
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C.
Sidewalks are governed by section 58 of the Township’s ordinances. See Code of
Ordinances, Tittabawassee Township, http://www.tittabawassee.org/uploads/1/9/0/1/19016699/
code_of_ordinances_tittabawassee_twp..pdf. Under this section the rights and responsibilities of
private landowners and the Township with respect to sidewalks are enumerated. As noted above,
subsection 33 designates certain roads on which it is required to have sidewalks on both sides of
the street. Subsection 35 addresses the maintenance of the sidewalks and driveway approaches.
Section 58-35(a) addresses circumstances where a sidewalk crosses or adjoins the property of a
landowner. No definition is given in the ordinances for “crossing” or “adjoining.”
Section 58-35(b) addresses circumstances where the sidewalk falls between the lot line of
a landowner’s parcel and the street curb. These landowners are called “abutting property owners”
by the ordinance and are divided into two classes. The first class makes up all individuals with
property abutting a sidewalk. The second class carves out an exception from those individuals
for all property owners whose tract abuts a sidewalk along a specifically designated street in §
58-33. There is no explicit definition in subsection 58-35(b) for “abutting” but, implicitly, it is
any property that meets the description in subsection (a).
Section 58-36 addresses the allotment of construction and repair expenses associated with
the Township’s sidewalks. Subsection (b) states:
Unless otherwise approved by the township board, the expense of construction of
such sidewalks, as designated in section 58-33, shall be charged as follows:
(1) In newly developed subdivisions, the entire cost shall be borne by the
developer.
(2) Adjacent to all new construction, regardless of zoning, the entire cost shall
be borne by the developer or property owner.
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(3) Adjacent to all existing developments containing any multifamily use with
more than two units and all developments zoned or used for commercial or
industrial purposes, the cost will be shared equally by the township and
owners of these premises.
(4) Along designated roads adjacent to existing R-1 and R-2 development, the
entire cost of original construction shall be borne by the township.
No exception is listed in section 58-36 for section 58-33 roads. Despite the title of the section:
“Construction or repair expense,” there is no mention of repair expenses in subsection (b).
Relatedly, subsection (c) provides the manner in which certain construction and repair expenses
may be assessed. Subsection (c)(2) provides that “the township board may require the owners of
any lot or premises to build or repair such sidewalks within such time and in such manner as the
township board may require[.]” The ordinance is not clear as to whether the classification system
of subsection (b) applies to the imposition of repair obligations under subsection (c). Bauman
contends that it does not. The Township makes no arguments regarding the applicability of
subsection (c).
D.
As of this date the sidewalk on Bauman’s property has been completed. There is no
evidence in the record that any fine or maintenance obligation has been imposed upon or charged
to the Plaintiff. Bauman contends that it is only a matter of time until such inevitably occurs and
seeks a preliminary injunction to enjoin the enforceability of the ordinance pending the greater
relief he seeks: removing the sidewalk or striking down the ordinance. ECF No. 10, Pl. Mot. Br.
at 3.
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II.
A.
The Court first notes that Plaintiff did not represent that he sought concurrence in his
motion, as required by the Eastern District of Michigan Local Rules.1 The Defendant mentions in
its submission that concurrence was not sought and this is confirmed by the Plaintiff’s reply
brief. ECF No. 14, Pl. Reply Br. at 3 n.3. Local Rule 7.1(a)(1) provides: “The movant must
ascertain whether the contemplated motion . . . will be opposed.” If a movant cannot obtain
concurrence, the motion must represent that either (1) “there was a conference between attorneys
or unrepresented parties and other persons entitled to be heard on the motion in which the
movant explained the nature of the motion or request and its legal basis and requested but did not
obtain concurrence in the relief sought” or (2) the movant made “reasonable efforts” but was
“unable to conduct a conference.” E. D. MICH. LR 7.1(a)(2)(A)-(B). Furthermore, in the July 24,
2014 Order Denying a Temporary Restraining Order, the Court directed Bauman to serve a copy
of the order on the Township “then file proof of service on the Court’s docket.” ECF No. 4 at 6.
Thus, the Court explicitly directed Bauman to put the Township on notice as to the impending
motion for a preliminary injunction in order to bring an end to ex parte proceedings. The Plaintiff
is therefore encouraged to familiarize himself with the Local Rules. Copies of the Local Rules
are available both in print and online. The parties may order print copies from the Clerk’s Office,
E.D.
MICH.
L.R.
1.3,
or
they
may
access
the
rules
online
at
http://www.mied.uscourts.gov/Rules/LocalRules/civilRules.cfm.
1
The Court reminds the parties that the Local Rules are not optional: “[The Local Rules] shall govern all
applicable proceedings brought in this Court . . . .” E. D. MICH. L.R. 1.1(d).
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B.
The test for whether a preliminary injunction should be granted is settled law. A district
court must weigh the following factors in reaching its decision:
(1) whether the movant has a strong likelihood of success on the merits; (2)
whether the movant would suffer irreparable injury without the injunction; (3)
whether issuance of the injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance of the injunction.
Am. Civil Liberties Union of Kentucky v. McCreary Cnty., Kentucky, 354 F.3d 438, 445 (6th Cir.
2003) aff’d sub nom. McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 125
S. Ct. 2722, 162 L. Ed. 2d 729 (2005) (quoting Rock and Roll Hall of Fame & Museum, Inc. v.
Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998)). A district court must balance these factors, as
no factor is a prerequisite to the issuance of a preliminary injunction. Overstreet v. LexingtonFayette Urban County Government, 305 F.3d 566 573 (6th Cir. 2002). “A preliminary injunction
is an extraordinary remedy which should be granted only if the movant carries his or her burden
of proving that the circumstances clearly demand it.” Id.
III.
While Bauman correctly states that a court need not give specific weight to each factor,
nor find each factor met, he contends that each nevertheless favors him.
A.
First, Bauman alleges that he will succeed on the merits of his claim. To substantiate this
assertion he primarily relies on a case out of this Court that he contends is controlling,
Shoemaker v. City of Howell, 982 F. Supp. 2d 745 (E.D. Mich. 2013). The Court held that
private citizens have a fundamental right not to have imposed upon them the obligation to
maintain public property. Id. at 757. “[S]uch action strikes at the very heart of the freedoms and
liberties the United States has come to represent.” Id. at 757-58. Shoemaker is the only case that
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holds the freedom from such imposition to be a fundamental right. Id. at 757. As the Court
recognized, uncovering fundamental rights protected by the Fourteenth Amendment is not lightly
undertaken. Id. Accepting the reasoning of Shoemaker as advanced by Bauman, he makes out a
claim for a likelihood of success on the merits.
B.
Bauman asserts an ability to show two areas in which he will suffer irreparable harm.
Under the irreparable harm inquiry it must be demonstrated by the moving party that harm is
indeed irreparable. “The possibility that adequate compensatory or other corrective relief will be
available at a later date, in the ordinary course of litigation, weighs heavily against a claim of
irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974). In evaluating the harm that will
occur absent a stay the court generally looks to three factors: (1) the substantiality of the injury
alleged; (2) the likelihood of its occurrence; and (3) the adequacy of the proof provided. Mich.
Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991).
Bauman first claims that a constitutional violation amounts per se to irreparable harm.
Second, he claims that his inability to recuperate attorney’s fees under the “American Rule”
against cost-shifting also amounts to irreparable harm. Neither of Bauman’s claims have merit.
His claim of a constitutional violation can be adequately remedied at law and the loss of
attorney’s fees does not amount to irreparable harm under the current law governing preliminary
injunctions.
1.
Bauman’s primary claim that he will suffer imminent irreparable harm or a threat thereof
is that actual or potential violations of constitutional rights are per se irreparable. He cites once
again to Shoemaker to demonstrate that his rights will be violated by the ordinance. As noted
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above, the Court need not address Shoemaker on the merits. Assuming, arguendo, that such a
fundamental right exists, Bauman must still show imminent irreparable harm or the threat of
irreparable harm.
Bauman emphasizes Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.), in support of his
claim that the threat of a violation of a constitutional right constitutes per se irreparable harm.
But the rule Bauman cites is not so categorical. “The case law is replete with examples of courts
finding no irreparable harm despite the allegation of a constitutional violation where the only
remedy would be monetary in nature.” Hamlyn v. Rock Island Cnty. Metro. Mass Transit Dist.,
960 F. Supp. 160, 163 (C.D. Ill. 1997).2 The primary focus of the rule is on the infringement, or
threatened infringement of First Amendment rights, “rights which must be exercised within a
certain period of time,” or other “injur[ies] which cannot be compensated by monetary damages
alone.” Id.3 In the years since Hamlyn’s survey of the law addressing irreparable harm in
2
The Hamlyn decision helpfully collects a list of cases where courts found no irreparable harm despite a
constitutional violation:
For instance, in a procedural due process action, there is no harm where the injury is ultimately
redressable through monetary compensation. See Sampson v. Murray, 415 U.S. 61, 89–92, 94
S.Ct. 937, 952–54, 39 L.Ed.2d 166 (1974); Wisconsin Central Ltd. v. Public Service Commission,
95 F.3d 1359, 1369–70 (7th Cir.1996); Cunningham v. Adams, 808 F.2d 815, 822 (11th Cir.1987);
Roberts v. Van Buren Public Sch., 731 F.2d 523, 526 (8th Cir.1984); Ciechon v. City of Chicago,
634 F.2d 1055, 1057 (7th Cir.1980); Kennedy–Kartheiser, 1987 WL 17164, at *1.3 Likewise, the
Seventh Circuit has held that no irreparable harm existed in a First Amendment retaliation action
where the only injury would be the plaintiff’s expense of defending against the suit. Smart v.
Board of Trustees of Univ. of Illinois, 34 F.3d 432, 435 (7th Cir.1994).
Hamlyn, 960 F. Supp. at 163.
3
Once again, Hamlyn offers a helpful, though slightly dated, collection of caselaw on point:
In contrast, those cases which have held that a constitutional wrong constitutes an irreparable
injury involve some continuing or future injury which cannot be compensated by monetary
damages alone. Examples include a First Amendment claim that one’s speech is presently being
chilled, Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 2689–90, 49 L.Ed.2d 547 (1976);
National People’s Action v. Village of Wilmette, 914 F.2d 1008, 1013 (7th Cir.1990); Schnell v.
City of Chicago, 407 F.2d 1084, 1086 (7th Cir.1969), a Due Process or Eighth Amendment
allegation concerning a continued threat to a prisoner’s health or safety, Preston v. Thompson, 589
F.2d 300, 302–03 & n. 3 (7th Cir.1978); Jolly v. Coughlin, 894 F.Supp. 734, 740 (S.D.N.Y.1995),
aff’d, 76 F.3d 468, 482 (2d Cir.1996); Young v. Ballis, 762 F.Supp. 823, 827 (S.D.Ind.1990), the
loss of fundamental rights which must be exercised within a certain period of time, such as the
right to vote or to have an abortion, Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328,
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connection with constitutional violations the law has not broadened. See, e.g., Libertarian Party
of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) (reciting the rule of Elrod v. Burns, 427
U.S. 347 (1976) that the loss of First Amendment freedoms constitutes irreparable injury);
Liberty Coins, LLC v. Goodman, 748 F.3d 682, 690 (6th Cir. 2014) (“In cases implicating the
First Amendment, the other three factors often hinge on this first factor.”). Bauman does not
advance, and the Court is not aware of, any case where the threat of a violating a substantive due
process right was considered irreparable harm of the type to be protected by a preliminary
injunction. Bonnell itself concerned a First Amendment violation, despite the broad language
cited by Bauman. 241 F.3d at 802.4
Even in the case of a constitutional violation such as the violation of a substantive due
process right, courts will hesitate to find irreparable harm where any potential harm is readily
compensable by damages. In fact, the case on which Bauman relies, Shoemaker, demonstrates
just that proposition. In Shoemaker the plaintiff had been repeatedly fined and his amount owed
to the city of Howell totaled $600.00. 982 F. Supp. 2d at 750. The court in Shoemaker did not
indicate that any harm suffered by Shoemaker went beyond mere monetary damage. The same is
the case here.
338 (5th Cir.1981); Doe v. Mundy, 514 F.2d 1179, 1183 (7th Cir.1975); Auerbach v. Kinley, 499
F.Supp. 1329, 1340–41 (N.D.N.Y.1980), a claim that one will be subjected to an unlawful search
and seizure under the Fourth Amendment, Zepeda v. INS, 753 F.2d 719, 727 (9th Cir.1983);
Bannister v. Board of County Comm’n of Leavenworth County, Kansas, 829 F.Supp. 1249, 1252
(D.Kan.1993), and an unconstitutional taking of property (on the basis that property is always
“unique”). United Church of the Medical Ctr. v. Medical Center Comm’n, 689 F.2d 693, 701 (7th
Cir.1982).
Hamlyn, 960 F. Supp. at 163.
4
It should be noted that even if Bauman can show that the rule has been broadened beyond non-monetary
constitutional violations such as Free Speech and Equal Protection violations, he has not shown that the statute
actually violates the constitution. Shoemaker held that the City of Howell’s ordinance was unconstitutional as
applied to Shoemaker. Here, Bauman does not allege facial unconstitutionality and to the extent he does, does not
offer sufficient evidence to support his claim that the facially unconstitutional statute will result in imminent
irreparable harm to him.
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Based on the ordinance the most that Bauman can be held responsible for financially is
expense of removing snow and manmade obstructions and compensating for any Townshipordered repairs. Code of Ordinances, Tittabawassee Township §§ 58-35, 58-36. Shoemaker does
stand for the proposition that imposing maintenance and repair obligations5 would, as discussed
above, violate the Fourteenth Amendment. It also establishes that any harm sustained by Bauman
can be compensated by a damage award. Any cost imposed by the Township on Bauman for
failure to act in compliance with the ordinance can be ordered to be reimbursed by the Township
if Bauman is successful on the merits.
2.
As an additional ground for showing irreparable harm Bauman claims that in any
possible action he will be precluded from recovering attorney’s fees under the “American Rule.”
The Rule refers to the maxim of the United States’ legal system that “litigants are generally
expected to pay their own way” through the course of litigation. Mills v. United Producers, Inc.,
No. 11-13148-BC, 2013 WL 228086 at *2 (E.D. Mich. Jan. 22, 2013). A court will only award
fees where there is express statutory authority for doing so. See Tucker v. Sterling Jewelers, Inc.,
No. 09-14102, 2012 WL 2501120 at *4 (E.D. Mich. June 28, 2012). Bauman alleges that the
expense of compensating his attorney will go unreimbursed due to the American Rule. Correct.
But the law is clear in providing that this does not constitute irreparable harm. In Renegotiation
Board v. Bannercraft Clothing Company, 415 U.S. 1, 24 (1974), the Supreme Court held that
“[m]ere litigation expense, even substantial and unrecoupable cost, does not constitute
irreparable injury.” In light of this authority, Bauman cannot use the American Rule as a basis
for alleging irreparable harm.
5
Shoemaker does not stand for the proposition that imposing the obligation to remove manmade
obstructions violates the Fourteenth Amendment.
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C.
Bauman claims that if an injunction were to issue there would be no substantial harm to
others. In support of this assertion he alleges that “[t]he public will be better guarded if the
Township is obligated to maintain those sidewalks which it installed and Plaintiff does not wish
and cannot to [sic] protect at his own expense.” ECF No. 10 at 13. This may be so. Bauman is
probably right that the Township possesses more resources than he. But he does not explain how
imposing the obligation to maintain the sidewalk on him, rather than the Township imposes a
greater risk of harm to others than the reverse. Bauman’s proximity to the sidewalk and ability to
respond quickly to any obstruction, such as snow, carry considerable advantages to the public
that may be using the pedestrian right-of-way. If Bauman is indeed saddled with the obligation to
maintain the sidewalk under the ordinance, the harm to others would be equal whether or not a
preliminary injunction is entered enjoining the effect of the ordinance.
D.
Lastly, Bauman asserts that the public interest is best served by entering a preliminary
injunction. Bauman writes:
Lastly, the public interest is assuring proper constitutional application of its local
government clearly outweighs any counter-interests in convenience the Township
may suffer as a result of its own decision to install the sidewalk despite the
concerns the Township was on notice as existing via this lawsuit [sic throughout].
ECF No. 10 at 13. It appears that Bauman’s argument is that the public interest in proper
application of the Township’s ordinances outweighs any benefit that would flow to the public
from having a sidewalk cross his property. Perhaps. But this assertion by Bauman highlights a
more significant issue in the case: that all of this is moot if the Township possesses an easement
or right-of-way across Bauman’s property that permits the construction of a sidewalk. If so, the
Township, under their ordinance, bears the maintenance responsibilities.
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E.
Even if, despite the above, Bauman could make out a claim for a preliminary injunction,
he also fails to establish certain predicate conditions to his claims.
1.
First, Shoemaker may not be applicable to Bauman’s case. In fact, the question of
Shoemaker’s applicability to Bauman cannot be answered because there is insufficient
information to determine important facts. Bauman and his counsel asserted at the hearing that the
ordinance applies to him because there is a presumption under Michigan law that property lines
extend to the middle of the public right-of-way which they abut. See Morrow v. Boldt, 512
N.W.2d 83, 86 (1994). The Township, on the other hand, claimed that there is a state-law created
easement from the center-line of public rights-of-way specifically in place for the construction of
sidewalks. The Township alleges that they sought to build the sidewalk across Bauman’s
property and offered him $2500.00 to do so, which he declined. Instead, they built the sidewalk
within their easement.
Bauman does not contest that the Township possesses a sidewalk easement or that the
sidewalk is constructed within that easement. An Easement is “[a]n interest in land owned by
another person, consisting in the right to use or control the land, or an area above or below it, for
a specific limited purpose (such as to cross it for access to a public road).” EASEMENT, Black’s
Law Dictionary (9th ed. 2009). Bauman’s central point of contention is that even if the Township
possesses such an easement, his fee interest extends to the center line of the street, making him a
crossing, not adjoining property owner. Again, perhaps, but Bauman has not advanced any
evidence that he owns title to the center of Scott Road west of his driveway. At the hearing,
Bauman admitted that he has a survey of his land, but did not submit to the Court that survey or
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any of the documents relevant to his chain of title. Instead, Bauman submitted a secondary
approximation by the Saginaw Area GIS Authority. See ECF No. 10 at Ex. E. But Bauman
contests the veracity of his own exhibit and claims that it incorrectly shows the end of his
driveway as existing within County Road Commission property to the northeast of his lot.
Bauman provides no evidence that he actually holds title to the center of Scott Road, despite
acknowledging that he possesses the documents to prove or disprove that fact.6
2.
Even if Bauman could show that he owns fee title to the center of Scott Road to the west
of his driveway, he has offered no evidence that he would then be classified as a crossing
property owner. At the hearing, Bauman reiterated the position he advanced in his papers: that
the plain text of the ordinance means that the maintenance obligation would apply to him. But
the Township contends that Bauman never sought a determination of his obligations under the
ordinance and that this would have foreclosed the litigation because the ordinance does not, in
fact, apply to him. The Township asserts that the sidewalk easement across the western portion
of Bauman’s land is a property interest that converts Bauman’s status to that of an abutting
property owner. As such, the Township claims, Bauman is covered by the exception in Section
58-35(b)(1) and he is not saddled with the maintenance obligation in the ordinance. At the
hearing, the Township alleged that both Michigan statutes and case law support the proposition
that Bauman would not be liable for maintenance on the sidewalk. Furthermore, the Township
claims, there was a hearing held and determination made in the late 1990’s that explicitly placed
all Scott Road sidewalk maintenance obligations on the Township.
6
Similarly, the Township did not include a copy of Bauman’s deed or other proof of title that reflects their
easement, despite claiming that they possess a right-of-way easement that permits the construction of a sidewalk
adjacent to a county road.
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Bauman advances no evidence that the ordinance applies to him other than his reading of
the ordinance’s text. Bauman concedes the Township’s position that state law imposes upon
easement owners any and all duties to maintain the easement in a safe condition. ECF No. 14 at 4
(citing Morrow v. Boldt, 512 N.W.2d 83 (Mich. Ct. App. 1994)). Bauman also concedes that
Michigan statutes specifically impose this duty on Townships in the maintenance of sidewalks.
Id. (citing MCL 691.1402a(1)). Thus, Bauman’s position boils down to the assertion that the
Township “has decided to create liability and obligations for Plaintiff by ordinance . . . not
otherwise existing under other law.” Id. But this reading of the ordinance is not certain. In fact,
the ordinance is to be read in light of this state law authority, as the Township contends. The
ordinance should not be read as imposing maintenance obligations on Bauman.
Ultimately, Bauman’s claim that he is faced with sidewalk maintenance obligations rests
solely on his interpretation of the ordinance. The definitions of the different forms of property
owners that may or may not face liability are not readily apparent in the text. Exegesis of the
ordinance necessitates the use of extrinsic evidence to determine which category a property
owner should be placed in. Absent any extrinsic evidence that the Township is interpreting the
ordinance in the same manner as Bauman and, as a result, imposing fines or initiating
prosecutions, a preliminary injunction is not justified.
IV.
Lastly, it is necessary to address numerous references made by the Township in their
response brief to the fact that Bauman may not be permitted to pursue this claim. For example,
the Township states at one point that “Plaintiff’s motion and his Complaint, are unripe,
premature, and unnecessary.” ECF No. 13, Def. Resp. Br. at 3. At another point the Township
claims that “there is no case or controversy, any claims are unripe and not final, and there is
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simply no cause of action that exists with respect to this Plaintiff.” Id. at 7-8. To the extent the
Township is moving the Court to dismiss for want of jurisdiction, the claims must be ignored, at
least at this juncture. This Court’s Local Rules bar pleading motions seeking affirmative relief in
response briefing. E.D. MICH. LR 5(e).
V.
Because Bauman cannot show that he meets the requirements for the issuance of
injunctive relief, a preliminary injunction will not be entered. Even if Bauman could meet the
high showing required for such extraordinary relief, he still fails to demonstrate, in the first
instance, the necessary facts to support his claim of a constitutional violation.
Accordingly, it is ORDERED that Plaintiff’s Motion for Preliminary Injunction (ECF
No. 10) is DENIED.
Dated: October 30, 2014
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 30, 2014.
s/Tracy A. Jacobs
TRACY A. JACOBS
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