Tetil v. Juniata Township et al

Filing 38

ORDER Granting in Part the 34 Motion for Relief From Judgment, Directing Plaintiff Tetil to File His Third Amended Complaint and Directing the Clerk to Reopen the Case. (3rd Amended Complaint due by 12/28/2018.) Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
GARRETT TETIL, et al.
Plaintiffs,
v.

Case No. 18-cv-10808
Honorable Thomas L. Ludington
Magistrate Judge Patricia T. Morris

JUNIATA TOWNSHIP
PLANNING COMMISSION, et al.
Defendants.
and
PEGASUS WIND, LLC
Intervenor Defendant.
_________________________________/
ORDER GRANTING IN PART THE MOTION FOR RELIEF FROM JUDGMENT,
DIRECTING PLAINTIFF TETIL TO FILE HIS THIRD AMENDED COMPLAINT AND
DIRECTING THE CLERK TO REOPEN THE CASE
On March 12, 2018, Plaintiff Garret Tetil filed a complaint against Defendants Juniata
Township (the “Township”), Juniata Township Planning Commission (the “Planning
Commission”), and Juniata Township Zoning Board of Appeals (the “ZBA”) (collectively,
“Defendants”) challenging the Planning Commission’s decision to grant a special land use
permit (SLUP) to the Pegasus Wind Project. ECF No. 1. On April 9, 2018, Plaintiff Garrett Tetil
filed an amended complaint as of right, but also adding Plaintiffs Laura Richmond, Ryan and
Amanda Wenzlick, and Jerry and Rachelle TerBush. ECF No. 5. On May 14, 2018, a stipulated
order was entered allowing Pegasus Wind, LLC (Pegasus) to intervene. ECF No. 11. On May 29,
2018, Plaintiffs filed a motion to amend their complaint to add a claim of appeal of the Juniata
Township Zoning Board of Appeals’ decision. ECF No. 15. On June 12, 2018, Pegasus filed a

motion to dismiss the amended complaint. ECF No. 17. Pegasus Wind opposed the motion to
amend, contending that the effort would be futile.
The proposed second amended complaint contained five counts for relief. Count I was a
claim of appeal of the Planning Commission’s decision to grant Pegasus Wind’s SLUP
application, a decision which Plaintiffs contended was procedurally improper for several reasons.
Compl. ECF No. 15-1. Count II was a claim of appeal of the ZBA’s decision to reject Mr. Tetil’s
appeal based on lack of jurisdiction. Count III alleged various violations of the Michigan Open
Meetings Act. Counts IV and V alleged violations of procedural and substantive due process.
On September 27, 2018, the Court entered an order granting Pegasus’s motion to dismiss,
dismissing the complaint, and denying the motion to amend as futile. ECF No. 32. Judgment was
entered in favor of Defendants. ECF No. 33. On October 25, 2018, Plaintiffs filed a motion to
amend the judgment to allow them to file an amended complaint, and they attached the proposed
third amendment complaint. ECF No. 34.
I.
Federal Rule of Civil Procedure 15(a)(2) provides that a party may amend its pleading
with the court’s leave and that “the court should freely give leave when justice so requires.”
Denial of a motion to amend is appropriate, however, “‘where there is ‘undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of the amendment, etc.’” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir.
2002) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
“Prejudice” in the context of Rule 15 means more than the inconvenience of having to
defend against a claim. See Monahan v. N.Y.C. Dept. of Corr., 214 F.3d 275, 284 (2d Cir. 2000).
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It requires something more substantial. In some situations, the closing of discovery is sufficient
to warrant a finding of prejudice to the opponent. See R.S.W.W., Inc. v. City of Keego Harbor,
397 F.3d 427, 441 (6th Cir. 2005).
An amendment would be futile if the amended complaint does not state a claim upon
which relief can be granted. Midkiff v. Adams Cty. Reg’l Water Dist., 409 F.3d 758, 767 (6th Cir.
2005). A pleading fails to state a claim under Rule 12(b)(6) if it does not contain allegations that
support recovery under any recognizable legal theory. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In considering a Rule 12(b)(6) motion, the Court construes the pleading in the nonmovant’s favor and accepts the allegations of facts therein as true. See Lambert v. Hartman, 517
F.3d 433, 439 (6th Cir. 2008). The pleader need not provide “detailed factual allegations” to
survive dismissal, but the “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence, the
pleading “must contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face” and “the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678–79
(quotations and citation omitted).
When considering a motion to amend under rule 59 or 60, the familiar factors discussed
above apply. Leisure Caviar, LLC v. U.S. Fish and Wildlife Service, 616 F.3d 612, 616 (6th Cir.
2010). However, rule 15’s liberal policy in favor of amendment no longer applies after judgment
has been entered, and a plaintiff seeking leave to amend under rule 59 or 60 must “shoulder a
heavier burden.” Id. The fact that the request is made post judgment makes it more likely that
courts will find that prejudice and undue delay justifies denying relief. Michigan Flyer LLC v.
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Wayne County Airport Authority, 860 F.3d 425, 431-32, 97 Fed. R. Serv. 3d 1519 (6th Cir.
2017).
II.
Plaintiffs argue that the deficiencies in their complaint “are eminently correctable,” and
have been corrected.” Mot. at 9, ECF No. 34. Plaintiffs offer a total of 2-pages worth of analysis
to explain how the new complaint cures the deficiencies.
A.
Counts I and II of the second amended complaint (Mr. Tetil’s claims of appeal of the
Planning Commission’s decision and the ZBA decision) were dismissed because Mr. Tetil had
not pled facts demonstrating that he was an aggrieved party. In his briefing on the motion to
dismiss, Plaintiffs contended that Mr. Tetil had alleged “specific injury to his own property
rights.” Resp. at 11, ECF No. 24. In support of that contention, Plaintiffs cited to paragraph 33 of
the second amended complaint which reads as follows:
33. The Planning Commission voted to approve the Pegasus Wind SLUP
notwithstanding that the evidence from the record of the hearings before the
Planning Commission clearly shows that the Pegasus Wind Project fails to meet
the standards of the Wind Ordinance in the following significant respects: a)
Wind Ordinance Section 2.6 provides that the Planning Commission may approve
an increased height for a commercial wind energy tower, not to exceed 500 feet, if
all of the conditions set forth in 2.6(a) – (c) are met. These conditions require a
showing that the increased height will result in preserving a substantial stand of
trees, existing land forms or other structures that would otherwise need to be
removed to increase wind velocity; that the increased height is the minimum
necessary to achieve a reasonable rate of return on the operation of the wind
turbine; and that the increased height will not result in increased intensity of
lighting on the tower. The Planning Commission improperly granted an increased
maximum height allowance for all of the turbines and parcels involved in the
Pegasus Wind System, but failed to find that any of the specific conditions set
forth in Wind Ordinance Section 2.6a-c have been met for any of the proposed
turbine sites. b) Wind Ordinance Section 2.19 governs shadow flicker, and states
that a commercial wind energy system shall be designed such that “shadow flicker
will not fall on, or in, any existing dwelling.” Wind Ordinance Section 2.19(d).
Nonetheless, the Planning Commission erroneously interpreted the provisions of
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Section 2.19(d) to provide that shadow flicker of 30 hours per year or less is
acceptable on or in an existing dwelling, contrary to the plain language of the
Wind Ordinance. c) Wind Ordinance Section 2.8 sets forth maximum noise level
requirements for a proposed commercial wind system. The evidence in the record
demonstrates that the Pegasus Wind Project fails to satisfy the maximum noise
level requirements of Wind Ordinance Section 2.8. d) The Planning Commission
further determined that the Pegasus Wind Project SLUP application meets all of
the setback requirements of Wind Ordinance Section 2.5 without any evidence
that those requirements are met in the record of the application for the public
hearings; e) There is no evidence in the record to show that the SLUP application
meets the maximum vibration standard set forth in Wind Ordinance Section 2.9;
f) There is no evidence in the record to show that the Pegasus Wind Project SLUP
application meets the non-interference with residential reception requirements of
Wind Ordinance Section 2.11.
Am. Comp, ¶¶33(a) – (f), ECF No. 5, Pg ID 25-26. As the Court previously noted, paragraph 33
simply outlined the manner in which Plaintiffs believed that the Pegaus Wind Project is
deficient. Neither paragraph 33, nor any other paragraph of the complaint, contained allegations
explaining how those deficiencies affected Mr. Tetil’s property. Now, Plaintiffs have added
paragraph 37, which sets forth specifically how the turbine will affect his property:
37. Garrett Tetil and his family will be directly harmed by the Planning
Commission’s erroneous decision to grant the SLUP for the Pegasus Wind Project
in the following ways: a) The increased height of the turbines will particularly
impact Mr. Tetil and his family, because they live in such close proximity to the
turbine. The increased height will increase the turbine’s profile and particularly
block their views and access to sunlight in ways that are different and
substantially greater than the public at large or the Township as a whole. The
Township has approved a massively tall structure to be constructed virtually next
door to his property, without making any of the necessary findings required to
approve such a tall structure. b) Mr. Tetil will be directly subject to and affected
by shadow flicker from the proposed turbine. Despite the fact that the Township’s
Wind ordinance clearly provides that shadow flicker will not fall on, or in, any
existing dwelling, Pegasus Wind’s own studies indicate that Mr. Tetil’s dwelling
will receive some shadow flicker (up to 30 hours per year). This shadow flicker
will cause annoyance, harm and disturbance to Mr. Tetil and shall interfere with
the peaceful enjoyment of his home. There is no dispute that he will experience
some shadow flicker as a result of the currently proposed turbine, despite the
Wind Ordinance requirement that there be none. c) The Planning Commission’s
erroneous decision to approve the SLUP without sufficient evidence of
compliance with noise, setback and vibration standards will also cause harm to
Mr. Tetil. A main problem with the proximity of turbines relates to the safety of
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the Tetil children (ages 11, 9, and 7) as they work with their horses. Mr. Tetil has
a made a large financial investment into equestrian endeavors. The location of his
outdoor riding arena, despite being close to his home, will undoubtedly receive
shadow flicker and noise. Horses are prey animals that operate on the fight or
flight response, meaning that changes in the environment can result in them
“fleeing,” which could have catastrophic implications. While show horses are
highly trained and can adjust to new environments over time, there is no way to
train a horse to adapt to a change in environment that is not consistent and
unpredictable, such as noise, vibrations and shadow flicker caused by turbines.
This will mean that Mr. Tetil will be unable to allow his children to work with
their horses during times of shadow flicker, or high wind in which the turbine
noise level is elevated. This shortened practice time will undoubtedly affect their
performance. In order to rectify this situation, Mr. Tetil would be forced to build
an indoor arena (at an estimated cost of $65,000) or not keep horses at his home,
resulting in significant additional expense to him in boarding costs and travel
time. d) Because Mr. Tetil’s home is a mere 3,000 feet from a proposed turbine
site, if the turbine creates interference with residential radio, TV or other
electromagnetic reception, he will experience such effects in a far greater
magnitude and with far greater regularity than other members of the general
public or the Township at large. Mr. Tetil operates Tetil Engineering, 12 LLC out
of his home. His work focuses on custom electronic controls and software and
relies heavily on high speed internet. There is only one option for high speed
internet in the area, and it is a wireless solution. Due to his close proximity to the
Vassar State Game Area, there is only one internet tower that he can access. The
closest proposed turbine to him will be in between his antenna and this lone
internet tower. There is a high probability that Mr. Tetil’s high-speed internet
service will be disrupted, which shall cause economic harm and damage to his
home business.
Prop. 3rd Am. Compl. ¶ 37, ECF No. 34-1.
In stark contrast to the previous complaint, which did not contain a single such allegation,
paragraph 37 sets forth detailed and extensive allegations explaining every possible harm Mr.
Tetil, his children, and his horses might experience because of the turbines. But there is no
compelling explanation about why this information never found its way into any of his previous
three complaints. “A court acts within its discretion in denying a Rule 15 and a Rule 59 motion
on account of undue delay—including delay resulting from a failure to incorporate previously
[]available evidence” though the court should “pay particular attention to the movant’s

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explanation for failing to seek leave to amend prior to the entry of judgment.” Leisure Caviar,
616 F.3d at 616 (citations and quotations omitted).
The only explanation Plaintiffs provide for why they did not seek leave sooner is because
“of a sincerely held, but ultimately incorrect, belief that their First and Second Amended
Complaints adequately set forth the factual bases supporting their claims.” Mot. at 10. This is
simply not a credible explanation with respect to Counts I and II for the reasons explained above.
The allegations were plainly insufficient to support those counts. Moreover, even if Plaintiffs did
sincerely hold that belief, they have provided no explanation for why this additional factual
detail concerning the interference with Mr. Tetil’s property was not available to them earlier.
Accordingly, the motion will be denied as to Counts I and II.
B.
Count III of the second amended complaint alleged various violations of the Michigan
Open Meetings Act (OMA), MCL §15.262(a). ECF No. 5 at 13. Count III alleged 1) that the
published notice and individual notices were deficient in several respects; 2) that the December
9, 2017 hearing was not held in a place generally accessible to the public; 3) that during the
course of the December 9, 2017, hearing the members of the Planning Commission huddled
together and conducted an off the record deliberation; 4) that the members of the Planning
Commission refused to permit public comment at the January 3, 4, and 13 special meeting; 5)
that the Planning Commission refused to reasonably allow Mr. Tetil to tape record or videotape
some or all of the proceedings of the January 3, 4, and 13 meetings; and 6) that the ZBA
discussed or deliberated the Township attorney’s opinion regarding ZBA jurisdiction outside of
the context of an open meeting.

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In dismissing Count III, the Court addressed the deficiency in each of these individual
allegations.
i.
As for the December 9 meeting, the Court explained as follows:
With respect to any alleged OMA violations arising out of the December 9,
201[7] meeting, including the improper notice thereof, the inadequacy of the
venue chosen, or Commission members’ off-the-record side-bar conversation,
Plaintiffs do not seek any of the relief provided for by the OMA. In fact, the
complaint does not appear to seek any relief at all with respect to those alleged
violations . . . the SLUP application was not approved at the December 9 meeting.
In fact, the Planning Commission took no action at the December 9, 201[7]
meeting. Plaintiffs do not allege that the January meetings were a continuation of
the December 9 meeting. Thus, there is no decision to invalidate arising out of the
December 9 meeting. Nor is there a request to enjoin any of the violations arising
out of that meeting, the improper notice thereof, or the inadequacy of the venue.
Moreover, Plaintiffs do not seek any damages in conjunction with those alleged
violations. To the extent the complaint can reasonably be read to ask the Court to
simply declare that Defendants committed those violations, the OMA does not
provide for purely declaratory relief. Citizens For A Better Algonac Cmty. Sch. v.
Algonac Cmty. Sch., 317 Mich. App. 171, 184, 894 N.W.2d 645, 651 (2016),
appeal denied, 500 Mich. 1009, 896 N.W.2d 1 (2017). Accordingly, the
allegations relating to the December 9, 2018 meeting will not be addressed
further.
Order at 12-13.
Plaintiffs’ proposed third amended complaint continues to allege OMA violations arising
out of the December 9 meeting, but Plaintiffs offer no explanation as to how the above
deficiencies have been cured. Accordingly, the motion to amend will be denied as to these
claims.
ii.
Plaintiffs previously alleged that the notice of the January meetings was “defective” in
the following respects: 1) the notice failed to sufficiently indicate the property that was subject to
the SLUP request; 2) the notice did not describe the project for which a SLUP was requested but
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simply stated “Pegasus Wind Project;” 3) the notice did not adequately or reasonably notify
members of the public which parcels may be involved, but merely recited parcel numbers; 4) the
individualized notices to persons within 300 feet of the parcels subject to the SLUP application
did not inform them that a proposed wind turbine would be in proximity to their houses.
The Court dismissed these claims, noting that “the OMA (MCL 15.264) only requires
notices of public meetings to contain ‘the name of the pubic body to which the notice applies, its
telephone number if one exists, and its address.”’ Order at 14. Plaintiffs had not alleged that
these requirements were violated. The Court rejected Plaintiffs argument that ZEA violations are
actionable under the OMA.
In their proposed third amended complaint, Plaintiffs continue to allege that the notice of
the January meetings was deficient. Plaintiffs only explanation for why these allegations remain
viable notwithstanding the Court’s previous order is as follows: “Plaintiffs assert, based on a
good faith argument for extension of prior case law in Michigan, that the failure to follow the
ZEA’s notice requirements should result in invalidation of the planning Commission’s approval
of the SLUP.” Mot. at 11-12.
In support of this assertion, Plaintiffs cite to Forest Hill Energy – Fowler Farms, L.L.C.
v. Township of Bengal, Docket #319134 (Mich. Ct. App. 12/4/2014), which they attach to their
motion. Considering Plaintiffs offer no accompanying explanation as to how Forest Hill applies
here, one would expect Forest Hill to be directly on point, obviating the need for explanation.
Not so. In fact, the opposite is true. Forest Hill does not discuss the ZEA’s notice requirements at
all. The word “notice” appears nowhere in the opinion. The allegations regarding the notice of
the January meetings remain insufficient to state a claim for relief. Accordingly, the motion to
amend will be denied as to these claims.
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iii.
Plaintiffs previously alleged that “[a]t the special meeting held over the course of
January 3, 4 and 13, 2018, the Planning Commission refused to allow public comment, and
refused to allow members of the public to be heard or to speak regarding the Pegasus Wind
Project SLUP.” Compl. ¶ 32 (emphasis added). The Court dismissed this claim, noting that it
was directly contradicted by the meeting minutes attached to Plaintiffs’ state court complaint
(and Defendants’ motion to dismiss), which established that public comment was permitted on
January 3 meeting.1 Order at 14-15.
Plaintiffs now contend that the proposed third amended complaint makes it clear that the
meeting was in fact three different meetings, as opposed to one meeting held over the course of
three days. Plaintiffs already explained this in their response to the motion to dismiss. The Court
rejected this explanation because it contradicted the allegations in Plaintiffs’ complaint. The
complaint described one “special meeting held over the course of January 3, 4, and 13,” as
opposed to three distinct meetings. This contradiction remains unexplained and undermines
Plaintiffs’ good faith basis for seeking an amendment. Moreover, as the Court previously
explained, Plaintiffs have cited no authority for the notion that the OMA requires public
comment on each day of a three-day meeting. Order at 15. The relevant precedent tends to
undermine this notion. See, e.g. Treul v. Otsego Cty. Zoning Bd. of Appeals, No. 231686, 2002
WL 31082159, at *2 (Mich. Ct. App. Sept. 17, 2002) (“. . . the ordinance could have imposed
reasonable limits on the amount of public commentary . . . or restricted public comment to
certain times within meetings”). The allegations concerning public comment remain insufficient
to state a claim for relief. Accordingly, the motion to amend will be denied as to these claims.

1

Plaintiffs also admitted in their response brief that public comment was allowed on January 3 and 4.

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iv.
Plaintiffs previously alleged that “[t]he Planning Commission refused to reasonably allow
Plaintiff Garrett Tetil to tape record or videotape some or all of the proceedings of the January 3,
4 and 13 public hearing/special meeting, in violation of the Open Meetings Act.” Compl. ¶ 62.
The Court dismissed this claim because Plaintiffs’ allegations were inconsistent:
Plaintiffs allege that “Mr. Tetil was required to keep his microphone and video
cameras in a specific corner located in the back of the room. From the location in
which his video camera was restricted, it was not possible to obtain a video
recording of the entire meeting.” Id. ¶ 30. Oddly, the very next paragraph alleges
as follows: “[s]imilarly, because the audio recording microphone was not
permitted to be closer than 10 feet from the members of the Planning
Commission, it was not possible to obtain an intelligible audio recording of the
public hearing, either.” Id. ¶ 30, 31. Plaintiffs first allege that the microphone had
to be kept in a specific corner in the back of the room. Then they state that it
could be no closer than 10 feet from the members of the planning commission.
These statements are inconsistent, unless the room was so small that the distance
between the planning commission members and the back of the room was only 10
feet. Based on these allegations, it is unclear what restrictions the Commission
actually imposed on attendees’ right to use recording equipment. Moreover,
Plaintiffs make no attempt to explain how the restrictions imposed by the
commission (whatever they were) were unreasonable. Accordingly, the
allegations concerning the restrictions on recording fail to state a claim under the
OMA.
Order at 16. Paragraph 67 of the proposed third amended complaint now explains that the video
and audio equipment are separate pieces of equipment. The video recorder had to stay in the
back of the room, and the audio equipment no closer than 10 feet from the commissioners.
Plaintiffs explain that the the room was a large high school cafeteria and the proceedings were
not fully visible from the back of the cafeteria.
Although it is late in the proceedings, the confusion that arose was because of unartful
pleading as opposed to bad faith conduct or intentional omission of details. Moreover, the basis
the Court relied upon for dismissing this claim (the inconsistency in the complaint) was not
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offered by the Defendants; rather, it was offered by the Court sua sponte. Thus, Plaintiffs were
not put on notice of this inconsistency in time to address it in their response to the motion to
dismiss. They were first put on notice of the inconsistency when the Court entered its order
dismissing the complaint.
As for the bases for dismissal the Defendants did offer, these will be addressed now.
Pursuant to MCL 15.263(1), “[t]he right of a person to attend a meeting of a public body
includes the right to tape-record, to videotape, to broadcast live on radio, and to telecast live on
television the proceedings of a public body at a public meeting. The exercise of this right shall
not be dependent upon the prior approval of the public body. However, a public body may
establish reasonable rules and regulations in order to minimize the possibility of disrupting the
meeting.” (emphasis added). In their motion to dismiss, Defendants contended that their
restrictions were reasonable:
Specifically, video cameras were required to be placed in the back of the room so
they did not block anyone’s view, and audio equipment was required to be ten
feet away so each person had the same opportunity to record the proceeding. (See
id. ¶¶ 30-31.) These restrictions were reasonable to ensure that all participants had
equal access to the proceedings.
Mot. at 18, ECF No. 17.
As Plaintiffs pointed out, however, these contentions are non-cognizable at the motion to
dismiss stage. Plaintiffs allegations are presumed true. Defendants cannot obtain dismissal by
denying the allegations and explaining why their restrictions were reasonable. The evidence
produced in this case will determine whether the restrictions were reasonable. For now, Mr.
Tetil’s allegations are sufficient to establish that the OMA was violated where the restrictions on
his audio and video equipment rendered it impossible to obtain an intelligible recording of the
proceedings. Moreover, there is no evidence of undue delay or bad faith with respect to these
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allegations. The deficiency in the complaint was a subtle one which was not even caught by the
Defendants. Plaintiffs new allegations have clarified their assertions. Accordingly, the
amendment will be permitted as to this claim.
v.
Plaintiffs previously alleged that during Mr. Tetil’s March 7 appeal hearing before the
ZBA, “it was clear that the members of the ZBA were familiar with and had previously
discussed an opinion of the township attorney regarding the ZBA’s jurisdiction. This previous
discussion did not take place in an open meeting of the ZBA, nor did the ZBA go into closed
session to discuss this opinion, as provided by the Michigan Open Meetings Act, indicating that
yet another unlawful closed session had occurred.” Compl. ¶ 42.
The Court rejected this claim, explaining as follows:
. . . [I]t is far from unreasonable to require Mr. Tetil to provide some modicum of
factual information regarding what occurred at the hearing and what statements
were made that suggested a closed session had previously taken place. Simply
alleging that it “was clear” to him that a closed session took place falls short of his
pleading burden and fails to apprise the Defendants of the basis for his allegation
against them.
Order at 17. Plaintiffs now add the following detail: “There was no prior discussion of
jurisdiction on the record by the members of the ZBA, yet all of the ZBA members appeared to
be well-versed on the subject and had reached a consensus to reject Mr. Tetil’s appeal in some
previous discussion prior to the March 7 hearing.” Prop. 3rd Am. Compl. ¶ 45. This does not set
forth sufficient factual information explaining the basis for Mr. Tetil’s conclusion that a previous
closed meeting had taken place. The ZBA members almost certainly had previous exposure to
jurisdictional issues. It would be strange indeed if Mr. Tetil’s appeal was the first appeal before
the ZBA that had ever raised a jurisdictional question. The fact that the ZBA members appeared
well versed on the jurisdictional question does not, by itself, support the inference that they had
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previously held a closed meeting and resolved the jurisdictional question against him.
Accordingly, the motion to amend will be denied as to this claim.
C.
The proposed amended complaint reasserts the two counts (count V and VI) alleging
violations of Plaintiffs’ procedural and substantive due process rights. The Court dismissed these
counts because Plaintiffs did not allege sufficient facts to establish that they had a
constitutionally protected property interest burdened by the Defendants’ actions in this case.
Order at 18. Plaintiffs contend that this deficiency is cured because they have added allegations
explaining how Mr. Tetil’s property rights have been invaded. These allegations were discussed
above in section II.A, rejecting Plaintiffs’ amended counts I and II (claims of appeal). Proposed
amended counts V and VI will be rejected for the same reason, namely that Plaintiffs have not
explained why they could not have made these allegations earlier.
III.
Accordingly, it is ORDERED that the motion to alter/amend the judgment, ECF No. 34,
is GRANTED in part and DENIED in part. The motion is granted solely as to Plaintiff Garrett
Tetil’s request to amend his complaint to allege that Defendants violated the OMA by
unreasonably restricting his right to record the proceedings that took place over January 3, 4 and
13. The motion is denied as to all other plaintiffs and all other claims, which should be excluded
from the amended complaint.2
It is further ORDERED that Plaintiff Garrett Tetil is DIRECTED to file his third
amended complaint by December 28, 2018.

2

If Plaintiff Tetil does not heed this admonition and continues to attempt to shoehorn in other unrelated claims or
allegations, he faces dismissal and sanctions under Rule 11.

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It is further ORDERED that the judgment is VACATED IN PART as set forth above
and the Clerk is directed to reopen the case.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: December 11, 2018

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