UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

ANDREW BAUMAN, 

 Plaintiff, Case No. 14-12841 

 Honorable Thomas L. Ludington 

v. 

TOWNSHIP OF 

TITTABAWASSEE, 

 Defendant. 

 / 

OPINION AND ORDER DENYING IN PART EMERGENCY MOTION 

FOR TEMPORARY RESTRAINING ORDER, DIRECTING SERVICE, 

AND SETTING FILING DEADLINES AND HEARING DATE 

On July 21, 2014, Andrew Bauman filed a complaint against Tittabawassee Township 

(the Township), alleging that the Township “will be substantially completing the installation of 

[a] sidewalk within the next few days” on his property, “which currently contains no sidewalk.” 

Pl.’s Compl. ¶¶ 7, 8, ECF No. 1. The Township’s code, Bauman suggests, creates “an 

affirmative duty” on his part “to prevent [the] sidewalk . . . [from] fall[ing] into a state of 

disrepair,” and it allegedly imposes other duties on Bauman as the “adjacent property owner.” 

Id. ¶¶ 12, 13. But “Bauman does not desire . . . to hav[e] to automatically assume these 

responsibilities, duties, liability, and/or public obligations,” which he asserts “should remain 

solely with Defendant Township.” Id. ¶ 14. So he requests that the Court enter preliminary and 

permanent injunctive orders prohibiting the Township from building a sidewalk on his property. 

 The same day Bauman filed his complaint, he filed a motion for an emergency temporary 

restraining order (TRO) under Federal Rule of Civil Procedure 65, which also requests a hearing 

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on the issue of injunctive relief. Upon review, that motion will be granted in part and denied in 

part. 

I 

 Bauman owns the property commonly known as 10285 Scott Road in Freeland, 

Michigan. Pl.’s Mot. 2, ECF No. 2. The property currently does not have a sidewalk, and 

Bauman alleges that the Township “has taken very recent and expedited steps to install a 

sidewalk on the Property.” Id. After the sidewalk is complete, “a number of ordinances kick in 

and effectively transfer certain ownership responsibilities and duties to an adjourning property 

owner” like Bauman. Id. at 2–3. Although Bauman’s attorney wrote the Township a letter 

opposing sidewalk construction, he claims the Township “ignored the issue and concluded it was 

going to move forward anyway.” Id. at 3. 

 Bauman’s issue with the sidewalk is simple: he does not want to incur affirmative duties 

or the potential for liability related to its use (such as keeping the sidewalk in repair). The 

Township maintains an ordinance governing Streets, Sidewalks and Other Public Places (the 

Ordinance). See Township Ord., attached as Pl.’s Compl. Ex. A. Under the Ordinance, Scott 

Road was “designated for sidewalks on both sides of the road.” Ordinance § 58-33(a). 

 Just as Bauman indicates, the Ordinance also places duties upon certain property owners: 

“No person shall permit any sidewalk which crosses or adjoins property owned by him to fall 

into a state of disrepair, be unsafe, or impassible.” Id. § 58-35(a). But Bauman does not address 

the “Abutting property owner exception” contained in § 58-35(b)(1), which establishes that 

“sidewalks located along streets set forth in section 58-33”—including Scott Road—“shall be the 

responsibility of the township.” Under this exception, it is possible Bauman would not be 

responsible for maintaining a sidewalk on his property. 

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 The Ordinance does provide that adjoining land owners “shall not allow any sidewalk . . . 

to be obstructed” by vehicles or ice and snow, and requires landowners to pay for “damage to a 

sidewalk caused by construction work” occurring on their property. Id. § 58-35(b)(4). There are 

no exceptions that prevent these subsections from applying to Bauman. The Ordinance does 

provide, however, for a public hearing “[b]efore the township board may require any owner of 

any lot or premises to construct, maintain, or pay for the expense of construction maintenance of 

a sidewalk across or adjoining their lot or premises . . . .” Id. § 58-36(a). 

II 

 Rule 65 provides that a “court may issue a [TRO] without written or oral notice to the 

adverse party or its attorney” if two requirements are satisfied: (1) “specific facts in an affidavit 

or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will 

result to the movant before the adverse party can be heard in opposition”; and (2) “the movant’s 

attorney certifies in writing any efforts made to give notice and the reasons why it should not be 

required.” Fed. R. Civ. P. 65(b)(1). 

 Four factors govern whether the Court will issue a TRO (the same four factors governing 

whether to issue a preliminary injunction): (1) whether the plaintiff has demonstrated a 

substantial likelihood of success on the merits; (2) whether there is a threat of irreparable harm to 

the plaintiff; (3) whether issuance of the injunction would harm others; and (4) whether the 

public interest is served by granting injunctive relief. Hamilton’s Bogarts, Inc. v. Michigan, 501 

F.3d 644, 649 (6th Cir. 2007) (citation omitted); see also Ne. Ohio Coal. for Homeless and Serv. 

Emps. Intern. Union, Local 1199 v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 2006). “These 

factors are not prerequisites, but are factors that are to be balanced against each other.” 

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Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566, 573 (6th Cir. 2002) (citations 

omitted). 

 As to the first factor, Bauman indicates he has demonstrated a substantial likelihood of 

success on the merits. He advances Shoemaker v. City of Howell, 982 F. Supp. 2d 745 (E.D. 

Mich. 2013), for the proposition that “a homeowner cannot be obligated to mandatorily maintain 

a municipality’s property without offending substantive due process.” Pl.’s Mot. 6. And 

Bauman is correct that the Shoemaker court concluded an ordinance which required property 

owners to maintain city property between the sidewalk and the curb—at their own expense—

offended substantive due process because it was not narrowly tailored to serve a compelling state 

interest. See Shoemaker, 982 F. Supp. 2d at 758 (“The Court therefore finds that such an 

interest—the interest to be free from mandated private maintenance of municipal property—is 

exactly the sort of right that is ‘deeply rooted in this Nation’s history and traditions.’”). Based 

on this authority, Bauman has at least raised the firm possibility that his claim has merit; the 

Township’s ordinance, even if it would not require Bauman to prevent disrepair to a sidewalk on 

his property (under the Abutting property owner exception), would still require him to remove 

snow and ice at his own expense. This is similar to Shoemaker where the property owner was 

required to mow the area between the sidewalk and street in violation of his substantive due 

process rights. 

 But while the first factor weighs in favor of granting a TRO, the other three do not. As to 

the second factor, Bauman indicates that “[u]pon the complete installation of the sidewalk, total 

liability and maintenance shifts to Plaintiff, without exception.” Pl.’s Mot. 7. But there is an 

exception providing that sidewalks on Scott Road “shall be the responsibility of the township.” 

Ordinance ¶ 58-35(b)(1). If the Township is responsible for maintaining Scott Road sidewalks, 

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Bauman would not be responsible as an owner who “neglect[s] to keep or maintain these 

sidewalks . . . in good repair and safe for use of the public[,]” and thus he would not be liable to 

injury that occurs for unrepaired walkways. And although he may be required to remove ice and 

snow, even in Michigan that problem is months away; sufficient time to allow for the Township 

to respond to Bauman’s complaint. Further, if there are “changes to [Bauman’s] land and the 

removal of trees, which cannot be replaced” as a result of the sidewalk’s installation, it is wellsettled that “harm is not irreparable if it is fully compensable by money damages.” 

Basicomputer Corp. v. Scott, 973 F.2d 507, 511 (6th Cir. 1992). 

 Bauman claims that the third factor, whether an injunction would harm others, weighs in 

favor of a TRO because his property “has been without a sidewalk” until this point, and only “a 

short additional time halting a sidewalk” will occur if the TRO is granted but his claims are later 

found to be without merit. Pl.’s Mot. 8. He also argues that the potential for harm will be 

reduced if the Township is stopped now “rather than this Court possibly having to order the 

removal of the [sidewalk] at a later date.” Id. For the same reasons, Bauman indicates that the 

fourth factor—relating to the public interest—weighs in his favor as well. 

 But as the Township notes in the Ordinance, sidewalks are necessary for “the use, 

benefit, protection, safety, convenience and general welfare of the citizens of the township.” 

Ordinance § 58-31. Bauman does not take into account the possibility that pedestrians walking 

along Scott Road currently must do so in the street rather than across his lawn. Bicyclists and 

roller-bladers likewise must hazard the roadways without a flat, stable walkway for use away 

from traffic. And if the sidewalk is built on other properties, but not Bauman’s, a substantial gap 

in the sidewalk could create additional problems. For all of these reasons, the Court finds that 

the third and fourth factors weigh in favor of denying Bauman’s motion for a TRO—the public 

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interests favor a sidewalk and there is the potential for harm if one is begun and not completed. 

Because the second factor also weighs in favor of denying Bauman’s motion, the TRO will not 

be granted. 

 But the portion of Bauman’s motion requesting a hearing on whether a preliminary 

injunction should issue, and to set a related briefing schedule, will be granted. Of course, he 

must first file a motion requesting that relief, and serve the Township with a copy of this Opinion 

and Order. 

 Accordingly, it is ORDERED that Bauman’s motion for a TRO, ECF No. 2, is 

GRANTED in part and DENIED in part. A TRO will not be issued. 

 It is further ORDERED that Bauman is DIRECTED to serve a copy of this Opinion and 

Order on the Township, and then file proof of service on the Court’s docket. 

 It is further ORDERED that Bauman is DIRECTED to file a motion for a preliminary 

injunction no later than August 15, 2014. 

 It is further ORDERED that the Township’s response to that motion is due on or before 

September 5, 2014. 

 It is further ORDERED that any reply brief, should Bauman choose to file one, is due no 

later than September 12, 2014. 

 It is further ORDERED that a hearing on Bauman’s motion for a preliminary injunction 

(to be filed by August 15, 2014), is set for October 8, 2014, at 2:00 p.m. 

Dated: July 24, 2014 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

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PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing 

order was served upon each attorney or party of record 

herein by electronic means or first class U.S. mail on July 

24, 2014.

s/Tracy A. Jacobs 

TRACY A. JACOBS 

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