Dearborn Lodging, Inc. v. Dearborn, City of

Filing 20

ORDER granting 10 Motion for Summary Judgment. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEARBORN LODGING, INC., d/b/a METRO INN,
Plaintiff,
Case number 11-10057
Honorable Julian Abele Cook, Jr.

v.
CITY OF DEARBORN,
Defendant.

ORDER
In this case, the Plaintiff, Dearborn Lodging, Inc., d/b/a Metro Inn, alleges that the
Defendant, the City of Dearborn (“City”), violated its Fourth, Fifth, and Fourteenth Amendment
rights when it ordered the demolition of a group of buildings that compose the Metro Inn, on the
basis of its findings that (1) they are dangerous buildings, and (2) the estimated costs of repair
exceeded their state equalized value. Currently pending before the Court is the City’s motion for
the entry of a summary judgment. Fed. R. Civ. P. 56.
I.
The Metro Inn is located on Michigan Avenue in Dearborn, Michigan. The property under
scrutiny consists of six buildings which have been designated by the as A, B, C, D, E, and the
restaurant and pool building. In 2001, Nofar Brothers, Inc., the then-owner of the hotel, sued the
City for an alleged wrongful taking. This litigation resulted in an order which directed the City to
(1) conduct an inspection of the property, and (2) issue a Certificate of Occupancy if and when the
Metro Inn owners satisfied an itemized list of required repairs. Five years later, Nofar Brothers filed

1

a motion to show cause in which it sought to obtain an injunctive relief against the City. No hearing
was held.
The Plaintiff, Dearborn Lodging, succeeded Nofar Brothers as the owner of the commercial
real estate in December 2003 and of the hotel in June 2007. Buildings D and E have been closed
since 2004 as a result of fire damage, and building C has been closed since 2006.
The City’s Building & Safety Department performed a full inspection of the site in April
of 2007, which resulted in the compilation of a list of several hundred necessary repairs, many of
which required the issuance of permits before they could be undertaken. (Woodcock Rep., Copy
at Ex. 23 to Def.’s Mot. for Summ. J.). In response to this report from the City’s inspector, the
Plaintiff retained a number of architects and engineers to submit plans that would address the
concerns therein. Noting that several of the required areas had not been addressed, the Building &
Safety Department rejected the Plaintiff’s proposed plans for renovation, and denied its request for
related permits.1 (See Plan Review Denials dated Oct. 18, 2007; Feb. 6, 2008; Mar. 10, 2008; and
Apr. 15, 2008, Copies at Ex. 11 to Def.’s Mot. for Summ. J.). One significant area of dispute
involved the structural integrity of the outdoor balconies on the second floor of the Metro Inn. The
Plaintiff had hired an engineering firm, Testing Engineers & Consultants, Inc. (“TEC”), which
determined that - so long as certain recommendations regarding drainage were incorporated into
a remodeling plan2 - the balconies had been properly repaired and were structurally sound. (TEC

1

As will be explained infra, the question of the propriety of these determinations is not
before the Court.
2

This recommendation had originally been made by TEC in 2001 but had not, apparently,
been acted upon by the time of its 2007 visit or a subsequent visit in 2008. However, TEC
characterized this as more of a maintenance and appearance issue than a structural issue.
2

Report, Oct. 2, 2007, Copy at Ex. 9 to Def.’s Mot. for Summ. J.). This conclusion was reiterated
in a report issued by TEC in April of 2008.
The URS Engineering firm (“URS”), after being hired by the City to perform an
independent review, issued its report in August 2008 wherein it concluded that buildings A, B, and
C all qualified as dangerous buildings under the following provisions of Mich. Comp. Laws §
125.539:
(a) A door, aisle, passageway, stairway, or other means of exit does not conform to
the approved fire code of the city, village, or township in which the building or
structure is located.
! These buildings met this standard because (1) the stairs did not conform to
the required differential distance between the smallest and largest riser
heights, and (2) the enclosed space below that stairs was constructed of
combustible materials.
(c) A part of the building or structure is likely to fall, become detached or dislodged,
or collapse and injure persons or damage property.
! This standard was met because of structural weakness in the balcony floors
and rails.
URS also concluded that the restaurant and pool area qualified as a dangerous building under §
125.539(b), which indicates that a building is dangerous if a “portion of the building or structure
is damaged by fire, wind, flood, deterioration, neglect, abandonment, vandalism, or other cause so
that the structural strength or stability of the building or structure is appreciably less than it was
before the damage . . . .” This standard was thought to have been met because the building had been
damaged by flooding in the basement. URS also concluded that the cost to repair these four
buildings would exceed the state equalized value of the entire Metro Inn property, which had been
assessed at $500,000. The cost of repair was estimated to be $317,353.60 for buildings A, B, and

3

C, and $579,786.50 for the restaurant and pool area.3
Apparently due to the failure of the Plaintiff to act upon URS’ conclusion that the balcony
required immediate shoring until a more permanent solution could be found, the City issued a
condemnation notice in October 2008, which shut down the entire property. One week later, the
Plaintiff initiated a lawsuit in the Wayne County Circuit Court of Michigan (“Wayne Circuit”) in
which it alleged that the City’s actions had violated its constitutional right to due process. After the
City removed the action to this Court on the basis of its federal question jurisdiction, the parties,
being of the belief that a negotiated resolution between the parties was appropriate, stipulated to
the dismissal of the case without prejudice in February 2009. See Dearborn Lodging, Inc. v. City
of Dearborn, No. 08-14550 (E.D. Mich.). One week later, pointing to the lack of progress in
negotiations, the Plaintiff filed an emergency motion seeking the reopening the case and the
issuance of a preliminary injunction. After recognizing that the proffered evidence contradicted the
Plaintiff’s claim that the City had failed to demonstrate good faith during their negotiations, the
Court denied the relief sought in March of 2009.
Three days after the Court entered its order, the Plaintiff initiated a new lawsuit in the
Wayne Circuit in which it again alleged that the condemnation order was illegal and that the City
had unreasonably (1) refused to accept its various proposals for repair and (2) denied its requests
for various construction permits.4 Although the City had caused the case to be removed, the Court

3

URS also found that (1) buildings D and E were dangerous buildings under several
different provisions of § 125.539, and (2) the cost of repair of these buildings would be
$959,204. However, inasmuch as the Plaintiff has not contested the demolition of these
buildings, the Court need not address these findings.
4

The 2008 and 2009 lawsuits named both Dearborn Lodging and the hotel’s owner,
Joseph Nofar, as Plaintiffs.
4

granted the Plaintiff’s motion to remand the action to the state court after noting that the allegations
within the new complaint were based exclusively on state law. After concluding that the Plaintiff
had failed to exhaust its administrative remedies prior to the commencement of this litigation, the
Wayne Circuit (1) granted the City’s motion for summary judgment on April 19, 2010, and (2)
denied the Plaintiff’s motion for reconsideration during the following month. (See Tr. of Mar. 26,
2010 Hrg. at 10:21-11:8, Copy at Ex. 2 to Pl.’s Resp. (“You need to go through your administrative
process. Had you brought this as an appeal because they were unreasonable in denying your permit
so that you could open your business, you appeal it to me; then I listen to all this stuff. I can’t do
it on this basis. . . . I have no jurisdiction over this.”)).
During the pendency of the second lawsuit, the Plaintiff again retained architects and
engineers to submit plans that, they contended, would address the concerns raised in the 2007
inspector’s report and the 2008 URS report. Believing that several of the areas of concern had not
been adequately - if at all - addressed, the City’s Economic & Community Development
Department rejected the Plaintiff’s plans, and declined to issue the requested permits to begin
renovation. (See Plan Review Denials dated June 3, 2009; Sept. 30, 2009; Dec. 2, 2009, Copies at
Exs. 14, 16, and 17 to Def.’s Mot. for Summ. J.). The City retained URS to review the Plaintiff’s
submissions to determine if its plans for the balconies, guardrails, and stairways answered the
concerns previously raised. URS concluded that the new plans failed to ensure that the proposed
repairs would be sufficient to render these structures safe and sound, and, in some instances, failed
to propose any repairs at all.
In March 2010, the City notified the Plaintiff that (1) based upon the inspections performed
in February 2008, March 2009, and March 2010, buildings D and E had been deemed to be

5

dangerous, and (2) a hearing would be scheduled at which it would be required to show cause why
those structures should not be demolished. During the following month, the City transmitted similar
notices with respect to the restaurant and pool building and buildings A, B, and C. By that time, the
estimated cost to repair all of the buildings was $1,856,434, and the state equalized value of the
property had declined to $400,000. In each case, the inspections (1) revealed that the originally
identified defects still remained, and (2) uncovered many additional problems, including improper
and inadequate repairs that had been performed without the required permits.
A public demolition hearing was held before the dangerous buildings hearing officer of the
Economic & Community Development Department on July 14, 2010. See Mich. Comp. Laws §
125.540. This hearing, which lasted for six hours, included testimony by the Plaintiff’s counsel, its
owner (Joseph Nofar), and its architects and engineers. The Plaintiff included the expert reports of
consulting engineers Ahmad & Associates, LLC, and McDowell & Associates, each of which
strongly disputed the findings of URS and the City’s inspector. After considering this testimony,
as well as the testimony of the City’s inspector and documents and reports submitted by both sides,
the hearing officer determined that - notwithstanding the Plaintiff’s experts’ representations to the
contrary - buildings A, B, C, D, and E were all dangerous buildings within the meaning of every
provision of Mich. Comp. Laws § 125.539. A supplemental hearing was held during the following
month to address the restaurant and pool building, which was determined to be dangerous within
the meaning of eight of the ten provisions of Mich. Comp. Laws § 125.539. In each case, the
hearing officer concluded that the buildings required immediate demolition.
The City’s Demolition Appeal Board (“DAB”) conducted a hearing to review both of these
orders in September 2010. The City and the Plaintiff (represented by counsel) each presented

6

evidence in support of their respective positions. The Plaintiff did not contest the demolition of
buildings D and E. The opposing experts sharply disagreed about the overall condition of the other
buildings - especially as it related to the structural soundness of the balconies - and whether the cost
to repair the buildings would exceed their market value. The DAB then adjourned the hearing for
sixty days in order to give the Plaintiff an opportunity to submit a “master plan” that would, inter
alia, describe how (1) each requirement of the City’s most recent inspection reports would be
satisfied, and (2) the restorations and renovations for the entire project would be funded. The DAB
resolution specified that, “[i]f all of the above conditions are not satisfied within 60 days from the
date of this hearing, all buildings will be ordered demolished.” (Amended Resolution of the
Demolition Appeal Board, Copy at Ex. 35 to Def.’s Mot. for Summ. J.). The DAB held a follow-up
hearing at the end of the sixty day period (on December 2, 2010). When the Plaintiff did not submit
any of the required items, the DAB (1) denied its request for an additional thirty to forty-five days
in which to satisfy the Amended Resolution, and (2) ordered all of the remaining buildings to be
demolished. Twenty days later, the instant litigation was initiated by the Plaintiff in the Wayne
Circuit and was subsequently removed by the City to this Court on the basis of its federal question
jurisdiction. 28 U.S.C. §§ 1331, 1441.
II.
The purpose of the summary judgment rule, as reflected by Federal Rule of Civil Procedure
56, “is to isolate and dispose of factually unsupportable claims or defenses . . . .” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). The entry of a summary judgment is proper only “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for purposes of summary

7

judgment if proof of that fact would have the effect of establishing or refuting an essential element
of the cause of action or a defense advanced by the parties.” Aqua Grp., LLC v. Fed. Ins. Co., 620
F. Supp. 2d 816, 819 (E.D. Mich. 2009) (citing Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984)). In order for a dispute to be genuine, it must contain evidence upon which a trier of the facts
could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 560 (6th Cir. 2004). When assessing
a request for the entry of a summary judgment, a court “must view the facts and all inferences to
be drawn therefrom in the light most favorable to the non-moving party.” 60 Ivy Street Corp. v.
Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The entry of a summary judgment is appropriate
if the nonmoving party fails to present evidence which is “sufficient to establish the existence of
an element essential to its case, and on which it will bear the burden of proof at trial.” Celotex, 477
U.S. at 322.
Thus, the moving party has the initial obligation of identifying those portions of the record
that demonstrate the absence of any genuine issue of a material fact. Celotex, 477 U.S. at 323.
Thereafter, the nonmoving party must “come forward with some probative evidence to support its
claim and make it necessary to resolve the differences at trial.” Boyd v. Ford Motor Co., 948 F.2d
283, 285 (6th Cir. 1991); see also Anderson, 477 U.S. at 256. The presence or the absence of a
genuinely disputed material fact must be established by (1) a specific reference to “particular parts
of materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials,” or (2) a “showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot

8

produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
III.
The initiating document in this case is entitled “petition for order of superintending control
and for temporary restraining order5 re: resolution and order for demolition dated December 2,
2010.” The pleading recites three counts. Count I, which was filed pursuant to 42 U.S.C. § 1983,
alleges that the City had violated the Plaintiff’s rights under the United States and Michigan
constitutions in the following manner: (1) the right to be free from an unconstitutional taking of
property pursuant to the Fourth Amendment of the United States Constitution;6 and (2) the right
to due process guaranteed under the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, Sections 11 and 17 of the Michigan Constitution. Count II seeks
preliminary and permanent injunctive relief enjoining the City from implementing the order of
demolition. Count III seeks a declaration that any action taken by the City in the absence of an
express judicial authorization would amount to an unconstitutional taking.
Before beginning its analysis, the Court must first address the threshold issue of which
actions and determinations are properly before the Court. The City argues that the administrative
process and decisions which were the subject of the Plaintiff’s 2009 lawsuit - to wit, the refusal to
accept various repair plans submitted by the Plaintiff and subsequent denials of permit requests are barred by the doctrine of res judicata, noting that the Wayne Circuit entered an order of

5

Although the title refers to a request for a temporary restraining order, the Court notes
that this relief was neither requested in the body of the document nor was it made the subject of a
separate motion for a temporary restraining order.
6

The Court notes that it is the Fifth Amendment - not the Fourth Amendment - that
addresses the taking of private property for public use without just compensation.
9

summary judgment in favor of the City in that case. The Plaintiff disagrees, arguing that the cited
doctrine of res judicata does not apply to this controversy because the determination by the state
court in that case was not a decision on the merits. Rather, the Plaintiff submits that the state court
rendered its decision based upon a finding of lack of jurisdiction because of the failure of the
Plaintiff to have exhausted its administrative remedies. The Court need not address this dispute as
to whether the determination by the Wayne Circuit will or does serve as a barrier to a review of
these allegations by this Court. It is clear that the Plaintiff still has not exhausted its administrative
remedies with respect to decisions that would have been properly appealed to the Building Board
of Appeals (“BBA”), as opposed to the DAB. According to a municipal ordinance in Dearborn, an
owner may appeal the decision of a building official by filing an appeal with the BBA within thirty
days of the adverse decision. Dearborn, Mich., Code of Ordinances § 5-27(12). An owner who is
aggrieved by an adverse decision of the BBA may seek judicial review of the decision by filing an
application for review within twenty days of the filing of the board’s decision. Id. § 5-27(15). It is
not clear whether the Plaintiff ever sought an appeal to the BBA, but, in any event, it did not seek
any judicial review of the BBA’s determination within the designated time period, as required by
the Code. Because the Plaintiff failed to exhaust its administrative remedies with respect to the
BBA, this Court lacks jurisdiction to consider and evaluate those claims. See, e.g., Nelson v. City
of Pontiac, No. 269536, 2007 WL 284333, at *1 (Mich. Ct. App. Feb. 1, 2007) (unpublished) (“The
doctrine of exhaustion of administrative remedies requires that where a remedy before an
administrative agency is provided, a party must seek such relief before petitioning the court.”
(citing Trever v. City of Sterling Heights, 195 N.W.2d 91, 92 (Mich. Ct. App. 1972))). This analysis
applies with equal force to the Plaintiff’s constitutional claims that arise from the same proceedings.

10

See, e.g., Salmon v. City of Three Rivers, No. 193290, 1997 WL 33352800, at *2 (Mich. Ct. App.
Apr. 11, 1997) (where court lacked jurisdiction over complaint for superintending control for
failure to timely exhaust administrative remedies, it also lacked jurisdiction over constitutional
claims that, in essence, were appeals of agency’s decision). On the other hand, there is no dispute
that the Plaintiff did exhaust its administrative remedies with respect to the demolition
determination; that decision, therefore, is properly before the Court.
Mich. Comp. Laws §§ 125.538 - 125.542 set forth the procedures that a municipality must
follow if it intends to demolish a dangerous building. See also Dearborn, Mich. Code of Ordinances
§§ 5-26 (adopting Michigan building, residential, rehabilitation, plumbing, and mechanical codes),
5-27 (additions, insertions, and changes to the Michigan building code). Section 125.539 defines
the term “dangerous building”as a building or structure that has one or more of several enumerated
defects or conditions. The parties dispute whether the hotel buildings were dangerous as defined
by this provision. Section 125.540 sets forth the requirements of notice to the building’s owner.
There is no allegation of defective notice here. Section 125.541 sets forth the procedures for
hearings before the dangerous buildings hearing officer and the DAB. Finally, § 125.542 provides
that an “owner aggrieved by a final decision or order of the legislative body or the board of appeals
under section [125.541] may appeal the decision or order to the circuit court by filing a petition for
an order of superintending control within 20 days from the date of the decision.” See also Dearborn,
Mich., Code of Ordinances § 5-27(27) (“An owner aggrieved by a final decision or order of the city
council or the demolition board of appeals under subsection (23) may appeal the decision or order
to the circuit court by filing a petition for an order of superintending control within 20 days from
the date of the decision.”).

11

The parties’ primary dispute is whether the buildings in question were dangerous, as defined
by § 125.539. The DAB concluded that the buildings were dangerous under every single provision
of this statute. The Plaintiff counters by arguing that the evidence conclusively shows that these
buildings were not dangerous. The parties have framed the relevant question differently. The
Plaintiff submits that a review of the entire record reflects the existence of a substantial
disagreement among the various experts as to the condition of the property. Further, the Plaintiff
maintains that these differences are sufficient to raise genuine issues of a material fact which must
be resolved by the trier of fact. As the City points out, the Plaintiff’s argument - even if true - is
insufficient to meet its burden regarding its complaint for superintending control. Rather, the
Plaintiff - in order to defeat the currently pending motion for summary judgment - must
demonstrate that a genuine issue of a material fact exists as to whether the City’s determination (to
wit, that the hotel was dangerous) was unauthorized by law or not supported by competent,
material, and substantial evidence based upon the whole record. See, e.g., Cole’s Home & Land
Co., LLC v. City of Grand Rapids, 720 N.W.2d 324, 327-28 (Mich. Ct. App. 2006) (quoting Mich.
Const. 1963, art. 6, § 28). This is a significantly higher burden.
Under Michigan law, a judicial review of the factual findings by an administrative agency
is limited to determining whether its determinations were supported by substantial evidence. In re
Payne, 514 N.W.2d 121 (Mich. 1994). Substantial evidence is “the amount of evidence that a
reasonable mind would accept as sufficient to support a conclusion. While it consists of more than
a scintilla of evidence, it may be substantially less than a preponderance.” Id. at 128 (citations
omitted).
The parties have gone to great lengths to present and highlight the relevant findings of

12

various expert reports regarding the condition and potential of rehabilitation of the subject
buildings. The Court need not delve into these reports in great detail to reach the conclusion that
the DAB’s determination that the buildings were dangerous was supported by substantial evidence.
The Plaintiff points to numerous excerpts from the hearing before the DAB on September 30th 7
which, it contends, demonstrate the “stark contrast” and the “substantial disagreement” between
the parties’ expert witnesses. It is evident that the Plaintiff’s experts firmly believe that the
buildings, though in disrepair, could be rehabilitated to be brought within all of the relevant
building codes, and that it is not necessary to demolish the building. On the other hand, the DAB,
after looking to the reports of the City’s inspector and URS, expressed deep skepticism about the
soundness of these beliefs as well as the Plaintiff’s ability to finance the project to completion. The
DAB was also concerned about the lack of specific detail in the previously-submitted plans and the
apparently unsatisfactory nature of the prior repairs that had been undertaken. Nevertheless, the
DAB allowed the Plaintiff a period of sixty days to come up with a “master plan” that would
address its concerns. Neither the Plaintiff nor its experts expressed any belief that the suggested
sixty-day period would constitute an insufficient amount of time in which to prepare a “master
plan.” At the end of this authorized period, the Plaintiff had not completed any of the tasks that
were outlined in the DAB’s resolution, and it seems that little, if any, progress had been made.
Thus, in accordance with the terms of its prior resolution, the DAB properly ordered the demolition
of all of the buildings. (See Amended Resolution of the Demolition Appeal Board, Copy at Ex. 35
to Def.’s Mot. for Summ. J. (“If all of the above conditions are not satisfied within 60 days from

7

Much of this testimony relates to disagreement with the City’s rejection of various
submitted plans and permit requests. As noted above, these actions are not before the Court.
13

the date of this hearing, all buildings will be ordered demolished.”)).
Moreover, by the City’s estimate, the cost to repair the buildings vastly exceeded their
value. Under Mich. Comp. Laws § 125.541(4), “[i]f the estimated cost of repair exceeds the state
equalized value of the building or structure to be repaired, a rebuttable presumption that the
building or structure requires immediate demolition exists.” Because the Plaintiff did not present
any cost estimate to complete the project, it failed to rebut this presumption.
For these reasons, the Court concludes that the DAB’s determination was based upon
substantial evidence and must be affirmed. The Court again notes that the existence of disagreement
between the parties is insufficient to meet the Plaintiff’s burden. Hence, the Plaintiff’s request for
superintending control is denied.
IV.
The Court now turns to the Plaintiff’s constitutional claims, in which it argues that the
City’s actions (1) have been so egregious that they constitute an abuse of their municipal authority,
as well as a taking of its property without just compensation in violation of the Fifth and Fourteenth
Amendments; and (2) have denied it substantive and procedural due process under the Fifth and
Fourteenth Amendments. To establish a claim under 42 U.S.C. § 1983, a plaintiff must set forth
facts that, when construed favorably, establish “(1) the deprivation of a right secured by the
Constitution or laws of the United States (2) [that was] caused by a person acting under the color
of state law.” Sigley v. City of Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006) (citing West v.
Atkins, 487 U.S. 42, 48 (1988)). The Court will address each claim in turn.
The essence of the Plaintiff’s takings claim appears to be the loss of its commercial use of
the hotel since 2008. As previously noted, however, the condemnation order and permitting process

14

are not before the Court. Moreover, as the City points out, the demolition of a dangerous nuisance
does not constitute a taking. E.g., Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470,
491 n.20 (“[S]ince no individual has a right to use his property so as to create a nuisance or
otherwise harm others, the State has not ‘taken’ anything when it asserts its power to enjoin the
nuisance-like activity.”); id. at 492 n.22 (“Courts have consistently held that a State need not
provide compensation when it diminishes or destroys the value of property by stopping illegal
activity or abating a public nuisance.”); Davet v. City of Cleveland, 456 F.3d 549, 553 (6th Cir.
2006) (affirming district court’s conclusion that “takings claim failed because ‘[d]emolition,
compliant with local law and procedure, in order to enforce building codes or abate a public
nuisance does not constitute a taking as contemplated by the federal and Ohio Constitutions.’”);
Ypsilanti Charter Twp. v. Kircher, 761 N.W.2d 761, 775 (Mich. Ct. App. 2008) (applying Keystone
under the United States and Michigan constitutions, and noting that the latter has been interpreted
as being coextensive with the former).
In its response, the Plaintiff does not address the nuisance exception to the takings analysis,
and instead presents a standard regulatory taking argument. To the extent that this argument is
premised on the purported bad faith denials of its permit applications, it is not properly before the
Court. To the extent that this argument relates to the demolition order, it fails for the reason
outlined above.
The Plaintiff’s procedural and substantive due process arguments focus almost entirely on
the condemnation order and denials of permit requests, and, to that extent, are not properly before
the Court. Moreover, the above analysis makes it abundantly clear that the order to demolish the
buildings was made neither arbitrarily nor capriciously, as would be required to establish a

15

substantive due process violation. See, e.g., Davet, 456 F.3d at 552 (affirming district court’s
conclusion that “the substantive due process claim failed because [Plaintiff] could not establish that
the city’s actions (taken pursuant to a valid condemnation order and in accordance with the
procedures mandated by city and state law) ‘shock[ed] the conscience’ or were ‘arbitrary and
capricious’”); Mettler Walloon, LLC v. Melrose Twp., 761 N.W.2d 293, 304 (Mich. Ct. App. 2008)
(“[W]hen evaluating municipal conduct vis-à-vis a substantive due process claim, only the most
egregious official conduct can be said to be arbitrary in the constitutional sense. . . . To sustain a
substantive due process claim against municipal actors, the governmental conduct must be so
arbitrary and capricious as to shock the conscience.”).
The Plaintiff’s procedural due process claim is also premised entirely on the denials of its
applications for permits. With respect to the demolition proceedings, the Plaintiff makes no
allegation that he was not provided with proper notice of all hearings and a right to be heard by an
impartial decision-maker. See Davet, 456 F.3d at 552 (affirming district court’s determination that
the “procedural due process claim failed because the [board of building standards] had given him
ample notice and an opportunity to be heard”); Mettler Walloon, 761 N.W.2d at 313 (“[P]rocedural
due process requires that a party be provided notice of the nature of the proceedings and an
opportunity to be heard by an impartial decision maker at a meaningful time and in a meaningful
manner.”). By all accounts, the demolition hearing officer and the DAB complied with all of the
notice and procedural requirements set forth in Mich. Comp. Laws §§ 125.540 and 541.
Because the Plaintiff has not demonstrated that any constitutional violation has occurred,
it has failed to establish the first prong of the § 1983 analysis. See Sigley, 437 F.3d at 533.
Therefore, the City is entitled to the entry of a summary judgment with respect to Count I of the

16

complaint.
V.
Because the Plaintiff’s claims do not succeed on the merits, it is not entitled to any
injunctive relief under Count II of the complaint. See Ohio Republican Party v. Brunner, 543 F.3d
357, 361 (6th Cir. 2008) (in considering request for preliminary injunction, courts weigh (1)
whether moving party demonstrates strong likelihood of success on merits; (2) whether moving
party would suffer irreparable injury without order; (3) whether requested injunctive order would
cause substantial harm to others; and (4) whether public interest would be served by issuance of
injunctive order; if first factor is dispositive, court need not consider remaining factors); Women’s
Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006) (permanent injunction requires
success on merits plus showing that plaintiff will suffer continuing irreparable injury for which
there is no adequate remedy at law). Moreover, because the Court has rejected the Plaintiff’s
constitutional claims, it is not entitled to the declaratory relief that it seeks to obtain in Count III.
VI.
For the reasons that have been set forth above, the City’s motion for the entry of a summary
judgment (ECF 10) is granted in its entirety.

IT IS SO ORDERED.
Date: March 30, 2012

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Court Judge

17

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on March 30, 2012.
s/ Kay Doaks
Case Manager

18