Garan Shareholders Kathleen Jozwiak and Peter B. Worden, Jr. successfully obtained summary judgment on behalf of their clients, the City of Traverse City and its Planning Director, in a land use case pending in the federal District Court in the Western District of Michigan.
In 2016, the City amended its City Charter by voter initiative to require that buildings taller than 60 feet could not be built without an affirmative vote of the electorate. The plaintiff developer, which originally planned to build a 100-foot-tall building, filed two litigations challenging the legality of the Charter amendment which were unsuccessful. The developer then sought to build a 60-foot-tall building, and was initially issued a land use permit by the City’s building department.
However, the City was forced to issue a Stop Work Order when court rulings in a different litigation kept changing the rules on how the City was supposed to measure a building’s height. Specifically, the City had only measured height from the sidewalk to the top of a flat roof; it had not included rooftop appurtenances such as HVAC equipment, insulation, stairwells, and antennae. This system had been incorporated into the City’s zoning ordinance for decades. However, in a different case, that method of measurement was challenged, and Judge Power of the Grand Traverse County Circuit Court held that in light of the Charter amendment, no aspect of a building could extend above 60 feet without an affirmative vote of the electorate — including rooftop appurtenances. The method of measurement then went through further refinements as that other case worked its way through appeals. As a result, the City had to continue to enforce the Stop Work Order.
The developer then filed suit in U.S. District Court in the Western District of Michigan, again challenging the legality of the Charter amendment and also claiming that the Stop Work Order violated the developer’s constitutional rights. The developer sought injunctive relief as well as in excess of $18 million in damages.
After an initial exchange of summary judgment motions, Judge Maloney of the Western District dismissed all of the developer’s claims except one. Judge Maloney found that the developer’s challenges to the legality of the Charter amendment were barred by res judicata / collateral estoppel, since the developer had pursued similar arguments in the previous cases. The Judge also found that the developer had not acquired constitutionally-vested property rights needed to support most of its constitutional violation claims. That left only the developer’s equal protection claim, and the developer’s assertion that its building was treated differently than other similarly situated buildings in Traverse City.
After further discovery, which included review of over 30 other buildings permitted by the City, the Defendants filed additional summary judgment motions. Peter Worden authored a motion for summary judgment attacking the remaining equal protection claim. Kathleen Jozwiak authored a motion for summary judgment seeking dismissal of the claims made against the City’s Planning Director, on the grounds that he had been sued in his official capacity and on the grounds of qualified and judicial immunity. The plaintiff developer, in the meantime, filed its own motion for summary judgment on its equal protection claim.
Judge Maloney issued a ruling granting the Defendants’ motions and denying the Plaintiff’s. The judge specifically found that the plaintiff developer had not satisfied its burden in demonstrating disparate treatment and thus dismissed the remaining equal protection claim. The judge also found that the City’s Planning Director had been sued in his official capacity, and that the claims against him were indistinguishable from the claims made against the City; and so, dismissed the claims against the Planning Director as well.