HRT Enterprises v. Detroit, City of

Filing 76

MEMORANDUM AND ORDER RE: 66 Motion for Reconsideration. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HRT ENTERPRISES, a Michigan
partnership,
Plaintiff,
Case No. 12-13710
Hon: AVERN COHN

-vsCITY OF DETROIT, a Michigan
municipal corporation,
Defendant.
/

MEMORANDUM AND ORDER
A.
On August 13, 2015, the Court, in its Memorandum And Order Granting Plaintiff’s
Motion For Summary Judgment On Liability (Doc. 26), found that the defendant, City of
Detroit (the “City”), has effectively taken plaintiff, HRT Enterprises’ (“HRT’s”) property by
inverse condemnation because, “[t]he property is not commercially useable and the City
has not paid for its ownership” (Doc. 63).
Particularly, the Court found that there is no genuine issue over the following facts:
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the City has expressed its clear intention to bring the airport adjacent to the
subject property within FAA standards;

•

to bring the airport within FAA standards directly involves the subject
property;

•

the City’s goal of bringing the airport within FAA standards severely limits
plaintiff in the use of the subject property and necessitates the defendant
acquiring the subject property;

•

the defendant has stated that the subject property has not been acquired
because, in significant part, the FAA has not provided funds for its
acquisition;

•

although the defendant has not formally included a replacement runway in
its official plan for the airport, defendant has said that it looks favorably on a
replacement runway that will run through the subject property if the FAA
approves funding;

•

if the FAA were to withdraw its waivers, the defendant will have no choice but
to acquire the subject property, or the airport will have to cease operations.
B.

What the Court did not do is establish the value of the subject property, i.e., the
amount the defendant is required to pay plaintiff for effectively acquiring the subject
property, and what is the date of acquisition. These are matters to be decided at trial.
C.
1.
On August 27, 2015, the defendant moved for reconsideration (Doc. 66), on the
grounds that it did not have its day in Court. Defendant says that the Court has not
examined the totality of the relevant facts and that it was adjudicated in a 2009 appeal that
no taking had occurred as of that time. As stated by defendant, “plaintiff HRT’s continued
inability to attract tenants cannot now be attributed to defendant’s actions or omissions.”
Defendant’s motion papers were not supported by an affidavit. Also, the grounds asserted
for rehearing do not contradict any of the findings of the Court.

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2.
Plaintiff, in opposition to rehearing says:
•

defendant must acquire the subject property to bring the airport into
conformity with FAA regulations;

•

the defendant has condemned or otherwise acquired numerous other
properties in the neighborhood of the airport in anticipation of its
enlargement, and as protection against losing FAA waivers;

•

the defendant still seeks funding to acquire the subject property.
3.

As to the assertion that the Court has denied discovery to the defendant, Plott v.
General Motors Corporation, 71 F.3d 1190, 1196-97 (6th Cir. 1995) says:
Before ruling on summary judgment motions, a district judge
must afford the parties adequate time for discovery, in light of
the circumstances of the case. See, Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 n. 5, 257, 106 S.Ct. 2505, 2511
n. 5, 91 L.Ed.2d 202 (1986) (stressing importance of allowing
ample time for discovery); Celotex Corp. v. Catrett, 477 U.S.
317, 322, 326, 106 S.Ct. 2548, 2552, 2554, 91 L.Ed.2d 265
(1986) (same). Parties who suffer an adverse summary
judgment may base their appeals on the lack of opportunity to
discover evidence necessary to establish a genuine issue of
material fact.
To assure a complete record, and to obviate any error on the grounds that
defendant has been denied its substantive rights, the Court will allow defendant to take
discovery depositions of not more than five (5) persons. Discovery depositions may also
be of benefit to the parties in preparation for trial on the issues of damages and effective
date of the taking. Plaintiff may also take not more than five (5) depositions. As to
documentary discovery, the Court assumes the parties will have no disagreement as to
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relevant documents.
Discovery shall be completed within ninety (90) days.
Once discovery has been completed, the parties shall advise the Court. A status
conference will then be held to determine the future course of the case.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: January 14, 2016

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