Buchanan et al v. Oakland, County of, et al.
Filing
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OPINION AND ORDER granting in part and denying in part 6 Motion for Judgment; granting 11 Motion to Amend/Correct; denying 18 Motion for Sanctions. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN BUCHANAN, et al.,
Plaintiffs,
Case No. 12-13666
v.
Hon. John Corbett O’Meara
OAKLAND COUNTY, et al.,
Defendants.
_____________________________/
OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’ MOTION FOR JUDGMENT
ON THE PLEADINGS, GRANTING PLAINTIFFS’ MOTION TO AMEND
AND DENYING DEFENDANTS’ MOTION FOR SANCTIONS
Before the court are Defendants’ motion for judgment on the pleadings, Defendants’
motion for sanctions, and Plaintiffs’ motion to amend the complaint. The court heard oral
argument on March 7, 2012, and took the matter under advisement.
BACKGROUND FACTS
Plaintiffs are property owners in Highland Township, Michigan, who oppose the
designation and establishment of a “drainage district” in their neighborhood. Plaintiffs live on or
near Lower Pettibone Lake. In 2009, certain property owners surrounding the lake applied for
the designation of a drainage district with the Oakland County Water Resources Commissioner
(“OCWRC”), so that a sewer could be constructed. The application was submitted in accordance
with the Drain Code, M.C.L. 280.51, which requires it to be signed by “not less than 10
freeholders of the township or townships in which such proposed drain . . . may be situated.”
On March 15, 2010, the Water Resource Commissioner, John P. McCulloch, entered an
order designating a drainage district “to be known as the Lower Pettibone (Lake) Sanitary
Drain.” On August 17, 2010, a petition for constructing a new drain was filed with the OCWRC
by a group of property owners pursuant to M.C.L. 280.71, which requires such a petition to be
“signed by a number of freeholders in said drainage district whose lands would be liable to an
assessment for benefits, equal to ½ the number of freeholders whose lands would be traversed by
the drain or drains applied for or abut on any highway or street along the side of which such
drain extends, between the point where the drain enters such highway and the point where it
leaves such highway and which lands are within the drainage district.”
To act upon the petition, the OCWRC convened a board of determination pursuant to
M.C.L. 280.72. A hearing before the board was held on October 18, 2010, to determine whether
the drain requested in the petition was necessary and conducive to public health, convenience,
and welfare. See M.C.L. 280.72(c). The board heard from both those in favor of and those
against the project. Following deliberations, the board issued an order of necessity dated
October 18, 2010.
Pursuant to M.C.L. 280.72a, “any person feeling aggrieved by the determination [of the
board of determination] may institute an action in the circuit court for the county in which the
real property is located for a determination of necessity.” In accordance with this provision,
Plaintiff Oliver Hayman filed a claim of appeal to the Oakland County Circuit Court on October
28, 2010.
OCWRC filed the administrative record on November 15, 2010, then filed a motion to
dismiss the appeal on November 29, 2010, arguing the Hayman had failed to comply with
M.C.R. 7.105 (appeals from administrative agencies).1 The circuit court denied the motion to
1
The version of M.C.R. 7.105 effective until May 1, 2012, is applicable to this case.
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dismiss, but granted Hayman’s request to proceed under M.C.R. 7.105.
On February 2, 2011, OCWRC filed a second motion to dismiss the administrative appeal
because Hayman failed to prosecute his appeal pursuant to M.C.R. 7.105. On the same date,
Hayman filed an amended petition for review, adding new parties seeking review. On February
24, 2011, the circuit court granted the motion to dismiss for failure to prosecute the
administrative appeal in conformance with M.C.L. 7.105. Hayman filed a motion for
reconsideration, which was denied on April 11, 2011. Hayman’s application for leave to appeal
to the Michigan Court of Appeals was denied on January 6, 2012.
To acquire the necessary easements to construct the sewer system, a condemnation action
has been filed and is currently pending in Oakland County Circuit Court. See Lower Pettibone
Lake Sanitary Drain Drainage District v. Reid’s Subdivision Association, No. 2012-130595. All
of the plaintiffs in this action are defendants in the condemnation action, except for Michael
Warren, who accepted the good faith offer that was tendered to him.
Plaintiffs filed this action on August 17, 2012, alleging various federal and state
constitutional violations, as follows: Count One, federal procedural due process (lack of notice
of designation of drainage district); Count Two, federal substantive due process/First
Amendment (right to assemble and voice concerns about drainage district); Count Three, federal
substantive due process (taking in violation of Fifth Amendment); Count Four, federal equal
protection (disparate treatment with respect to participating/voting on designation of drainage
district); Count Five, state equal protection; Count Six, violation of Michigan Constitution and
M.C.L. 280.71, because drainage district “not authorized by law”; and Count Seven, violation of
Michigan Constitution and M.C.L. 280.72, because appointment of board of determination was
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contrary to law. Defendants seek dismissal of Plaintiffs’ claims because (1) the claims related to
the establishment of the drainage district are barred by res judicata; and (2) the takings claims
are not ripe.
LAW AND ANALYSIS
I.
Standard of Review
Defendants have filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P.
12(c). The standard of review under Rule 12(c) is the same as the standard under Rule 12(b)(6).
See Lindsay v. Yates, 498 F.3d 434, 438 (6th Cir. 2007). Under Fed. R. Civ. P. 8(a)(2), a
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Although this standard does not require “detailed factual allegations,” it does
require more than “labels and conclusions” or “a formulaic recitation of the elements of a cause
of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, to survive a
motion to dismiss under Rule 12(b)(6), the plaintiff must allege facts that, if accepted as true, are
sufficient “to raise a right to relief above the speculative level” and to “state a claim to relief that
is plausible on its face.” Id. at 570. See also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at
1949. See also Hensley Manuf. v. Propride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).
II.
Res Judicata
This court must give the same preclusive effect to a Michigan state court judgment that a
Michigan court would give. See Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 523
(1986). The Michigan Supreme Court “has taken a broad approach to the doctrine of res
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judicata, holding that it bars not only claims already litigated, but also every claim arising from
the same transaction that the parties, exercising reasonable diligence, could have raised but did
not.” Adair v. State, 470 Mich. 105, 680 N.W. 2d 386, 396 (2004). The doctrine bars a
subsequent action when “(1) the first action was decided on the merits, (2) the matter contested
in the second action was or could have been resolved in the first, and (3) both actions involve the
same parties or their privies.” Sewell v. Clean Cut Mgmt., Inc., 463 Mich. 569, 621 N.W.2d 222,
225 (2001).
Defendants contend that Plaintiffs’ claims regarding the “procedures that were followed
in the administrative process that led to the creation of the Drainage District” are barred by res
judicata because those claims were or should have been raised in the administrative appeal.
Plaintiffs’ claims in this regard involve the federal rights of procedural due process, substantive
due process, free expression and assembly, and equal protection. Adjudication of these federal
rights is beyond the scope of a state administrative appeal. See Get Back Up, Inc. v. City of
Detroit, 878 F.Supp.2d 794, 804 (E.D. Mich. 2012). The circuit court’s review of a board of
determination’s finding of necessity for a drain project “is restricted to determining whether the
decision was authorized by law and whether the board’s findings of fact are supported by
competent, material and substantial evidence on the whole record.” Hitchingham v. Washtenaw
Cty. Drain Comm’r, 179 Mich. App. 154, 160-61, 445 N.W.2d 487 (1989). Accordingly, the
administrative appeal is not preclusive with respect to Plaintiffs’ federal claims because “under
Michigan Supreme Court authority, claims arising under federal law are not properly raised or
adjudicated in the context of an administrative appeal.” Id. See also Houdini Properties LLC v.
City of Romulus, 480 Mich. 1022, 743 N.W.2d 198, 198-99 (2008) (zoning board appeal was not
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res judicata on the plaintiff’s constitutional claims).
Plaintiffs also raise claims under the Drain Code, M.C.L. 280.71, 280.72, regarding
whether proper procedures were followed in the petition and in the appointment of the board of
determination (Counts Six and Seven). These claims should have been adjudicated in the
administrative appeal, because they address whether “the board of determination properly
complied with the applicable procedural requirements of the Drain Code in conducting its
hearing and reaching its decision and [whether] it issued an order it had the authority to issue.”
Hitchingham, 179 Mich. App. at 161 n.2. It is not clear, however, that the administrative appeal
involved the same parties or their privies. Although Plaintiff Hayman attempted to add new
parties to the appeal, it was dismissed for failure to prosecute before a ruling on that issue. There
is no evidence that Hayman was otherwise in privity with the other plaintiffs here. For these
reasons, the court will deny Defendants’ motion with respect to their res judicata argument.
III.
Ripeness
Defendants also argue that Plaintiffs’ takings claims are not ripe. “Ripeness is more than
a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts
lack subject matter jurisdiction and the complaint must be dismissed.” Bigelow v. Michigan
Dept. of Natural Resources, 970 F.2d 154, 157 (6th Cir. 1992) (citation omitted).
In this context, a takings claim is not ripe until a plaintiff has sought just compensation
under state procedures and has been denied. Williamson Cty. Regional Planning Comm’n v.
Hamilton Bank, 473 U.S. 172, 194 (1985). “The Fifth Amendment does not proscribe the taking
of property; it proscribes taking without just compensation.” Id. Therefore, “if a State provides
an adequate procedure for seeking just compensation, the property owner cannot claim a
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violation of the Just Compensation Clause until it has used the procedure and been denied just
compensation.” Id. at 195. In this case, a state condemnation action is pending. Plaintiffs have
not yet been denied just compensation for any alleged taking. Therefore, Plaintiffs’ takings
claim is not ripe and it must be dismissed.
IV.
Motion to Amend
Plaintiffs seek to amend their complaint to add two new plaintiffs (James Izzi and Ron
Izzi) and one new cause of action, Count Eight. In Count Eight, Plaintiffs contend that the Drain
Code is unconstitutional because it does not provide sufficient substantive and procedural due
process in giving residents notice and a voice in the designation of a drainage district, nor does it
provide a remedy for the improper designation of a drainage district. Defendants oppose
Plaintiffs’ motion to amend, mainly on futility grounds. As discussed above, however,
Plaintiffs’ constitutional claims will survive Defendants’ motion to dismiss.
Defendants oppose the addition of the Izzi plaintiffs because they contend that they are
not within the drainage district and will not be assessed for the costs of construction or operation
of the sewer. Plaintiffs contend, however, that the Izzi plaintiffs (and other plaintiffs) that do not
live on the lake nonetheless are all joint owners of two access lots that are on the lake. These
access lots are part of the drainage district. Accordingly, Plaintiffs contend that they could be
liable for problems with the sewer, such as the release of hazardous substances. Defendants
argue that the plaintiffs who do not live on the lake (“Upper Ridge” Plaintiffs) are not owners of
the access lots, but only have an easement and will not be liable for anything. These issues go to
the merits of Plaintiffs’ claims and have not been briefed sufficiently such that the court could
find that amendment would be futile. The court will permit Plaintiffs to amend their complaint,
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providing that they do so consistent with the court’s ruling on Defendants’ motion to dismiss.
V.
Motion for Sanctions
Defendants seek Rule 11 sanctions against Plaintiffs. For the reasons discussed above,
Defendants have not demonstrated that Plaintiffs’ action is frivolous. The court will deny the
motion for sanctions.
ORDER
IT IS HEREBY ORDERED that Defendants’ motion for judgment on the pleadings is
GRANTED IN PART and DENIED IN PART, consistent with this opinion and order.
IT IS FURTHER ORDERED that Plaintiffs’ motion to amend the complaint is
GRANTED, consistent with this opinion and order.
IT IS FURTHER ORDERED that Defendants’ motion for sanctions is DENIED.
s/John Corbett O'Meara
United States District Judge
Date: March 8, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record
on this date, March 8, 2013, using the ECF system.
s/William Barkholz
Case Manager
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