The Sixth Circuit addresses two real estate/due process civil rights claims

This month the Sixth Circuit decided two appeals involving zoning issues and alleged denials of property owners' civil rights.  Neither case turned out well for the landowner. 

In one case, the Loesel family had obtained a $3.6 million dollar verdict, after the City of Frankenmuth selectively zoned their property so that a "big box" store of over 65,000 feet could not be built on the site.  The jury apparently found it particularly egregious that the re-zoning did not apply to two existing retail entities who were originally included in the proposal intended to prevent construction of a Wal Mart on Main Street.  In any event, the Sixth Circuit overturned the verdict and sent the case back to the lower court for further analysis.

In the other case, arising from Toledo, Ohio, EJS Properties attempted to build a charter school inside the City  but were prevented after a City Councilman appeared to tie a necessary re-zoning approval to the payment of $100,000.00 by the landowner, "Pilkington Corporation," (formerly LIbby Owens Ford) to a retirement health care fund for its former employees. 

The involved City Councilman had negotiated a union contract that limited retirees' health care benefits.  He bluntly told Pilkington and EJS that he would only support the re-zoning request if something were done to assuage public anger over Pilkington's retirees' health care status.  Ultimately, an approval that had been approved at the Planning Commission stage was rejected by the City Council:  A few months later, however, a similar zoning change was approved to allow the Toledo Public Schools to build a middle school on the site.

The developers sued, arguing that tying approval of their re-zoning request to an unrelated matter was a violation of due process.  The District Judge rejected this argument and the Sixth Circuit upheld the lower court's decision. In essence, the court apparently concluded that the developers did not have a "property right" compelling the City Council to grant the zoning approval--even if it was later granted to the School System.