RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0261p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

CHARLES W. WARREN; RUTH WARREN,

Plaintiffs-Appellees,

v.

CITY OF ATHENS, OHIO,

Defendant-Appellant.

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No. 03-3580

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 02-00559—James L. Graham, District Judge.

Argued: September 24, 2004

Decided and Filed: June 15, 2005 

Before: MARTIN, COLE, and GIBBONS, Circuit Judges.

_________________

COUNSEL

ARGUED: Brian M. Zets, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, for Appellant.

Frederick M. Gittes, GITTES AND SCHULTE, Columbus, Ohio, for Appellees. ON BRIEF:

Brian M. Zets, SCHOTTENSTEIN, ZOX & DUNN, Columbus, Ohio, for Appellant. Frederick M.

Gittes, Kathaleen B. Schulte, GITTES AND SCHULTE, Columbus, Ohio, for Appellees.

_________________

OPINION _________________

JULIA SMITH GIBBONS, Circuit Judge. Plaintiffs-appellees Charles and Ruth Warren,

owners and operators of a Dairy Queen in Athens, Ohio, sued the City of Athens (“City”) and City

Prosecutor William Biddlestone under 42 U.S.C. § 1983, alleging that the defendants violated the

Warrens’ constitutional rights by installing barricades that restricted access to the Dairy Queen. The

Warrens sought declaratory and injunctive relief, and the district court permanently enjoined the

City from restricting access to the Dairy Queen. The City appeals, arguing that the district court

erred by: (1) determining that the Warrens’ takings claim was ripe; (2) finding that the City violated

the Warrens’ due process rights; (3) finding that the City violated the Warrens’ right to equal

protection of the law; and (4) granting the Warrens’ request for a permanent injunction. We affirm

the district court’s grant of a permanent injunction, although our reasoning differs from that of the

district court in several respects.

1
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 2

1

The City’s claim to a right-of-way extending onto the Dairy Queen property derives from an easement granted

in 1941 to the state of Ohio by a previous owner of the property on which the Dairy Queen is located. The easement

was meant to be used for the construction of a new highway, but the highway was built in a different place. In 1943,

the state abandoned North Columbus Road (formerly U.S. Highway 33) to the City without mention of the easement.

The parties disagree over whether the City owns the right-of-way, despite advice from an attorney hired by the

City that the right-of-way belonged to the state of Ohio as of December 2000. The district court found that the Warrens

owned the real property on which the Dairy Queen and its drive thru are located, and it also found that the City had no

interest in any easement or right-of-way over that property. Those findings are not clearly erroneous, and, in fact, are

plainly correct.

I.

 Charles and Ruth Warren, along with members of their family, have owned and operated

a Dairy Queen at the northwest corner of the intersection of Columbus Road and Sunset Drive in

Athens, Ohio, since 1981. There has been a Dairy Queen at that location for over 50 years. Other

than social security benefits, the Dairy Queen is the only source of income for Charles and Ruth

Warren. 

First, it is helpful to describe the Dairy Queen and its immediate surroundings. The Dairy

Queen has a drive thru lane located along the south side of the building. The lane enters from and

exits onto Sunset Drive, a two-lane dead-end street providing access to eighteen residences. There

are head-in parking spaces located in the island created by the arc of the drive thru lane; cars exiting

these spaces must back onto Sunset Drive. The Dairy Queen faces Columbus Road, a four-lane

road, and there is an entrance to the restaurant parking lot from Columbus Road. The entrance from

Columbus Road leads to parking spaces on the north side of the building as well as in the front of

the building (the side facing Columbus Road). However, because of the property lines, there is no

access around the back of the building from the north side to the west side abutting Sunset Drive.

Thus, all cars must exit either back onto Columbus Road or via the same Sunset Drive exit utilized

by drive thru customers. The Sunset Drive exit is only about twenty feet from the Sunset/Columbus

intersection. 

The Dairy Queen’s drive thru lane was constructed after the Warren family decided in 1998

that a drive thru would increase business and improve access for customers. As the president of the

regional Dairy Queen office testified, no Dairy Queen would continue to be economically viable in

the modern economy without a drive thru. In October 1998, the Warrens applied for a building

permit from the City to allow construction of the drive thru. Stephen Pierson, Director of Code

Enforcement for the City, determined that the proposed drive thru did not contravene any zoning

regulations. Pierson nonetheless denied the Warrens’ application in December 1998, explaining that

the proposed drive thru and part of the existing Dairy Queen building were located on a public rightof-way owned by the City.1

 In his refusal, Pierson notified the Warrens of their right to appeal the

decision. Pierson also suggested that the Warrens apply for a ten-year revocable license from the

City Council for use of the right-of-way. The Warrens did so and entered into discussions with City

officials, who had been contacted by Sunset Drive residents concerned about increased traffic on

their street. 

In April 1999, the Warrens proposed alternate plans for the drive thru in order to address the

concerns of residents of Sunset Drive. Wayne Key, the City’s service-safety director, endorsed one

of these plans, since it channeled the drive thru exit onto Columbus Road and called for parallel

parking, rather than head-in parking, along Sunset Drive. Nevertheless, the City Council denied the

Warrens’ application, citing safety concerns and the concerns of residents affected by the drive thru.

The council acknowledged that its denial “may become moot” if the City did not in fact own the

right-of-way. After being advised by their attorney that the City did not in fact have a right-of-way

over their property, the plaintiffs-appellees decided to proceed with their original plan to build the
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 3

2

Biddlestone was formerly the County Prosecutor but lost a primary election to the Warrens’ son David, the

current County Prosecutor. 

3

Biddlestone testified that the risk of accidents on Sunset or Columbus was not a factor in his decision to take

these steps. 

4

The district court’s findings of fact make clear that the barriers were erected “along” the Warrens’ property.

This finding is consistent with the Warrens’ contentions and the evidence in the record. Elsewhere, the district court

opinion refers to barriers “on” the property. While we do not construe the district court opinion as making a finding that

the barriers were “on” the Warrens’ property, such a finding would be clearly erroneous. 

drive-thru. The Warrens notified the City of their intent to so proceed, and the drive thru opened

in July 1999. Drive thru customers generated forty to forty-five percent of the Warrens’ business.

Three years later, in April 2002, City Prosecutor William Biddlestone2

 notified the Warrens’

counsel that due to numerous complaints from the Dairy Queen’s neighbors about traffic congestion

and noise on Sunset Drive, the City planned to: (1) place “do not block” signs at the intersection of

Sunset and Columbus; (2) place “no stopping or standing” signs at the exit and entrance to the drive

thru on Sunset; and (3) build a curb along Sunset to close the “illegal driveways” comprising the

drive thru.3

 The signs were erected soon after, and the Warrens did not object to this action. On

May 1, 2002, City officials Biddlestone, Key and Pierson met with the Warrens to discuss the

matter and specifically the City’s plan to install curbs blocking the drive thru. On May 24,

Biddlestone wrote the Warrens’ counsel to inform him that “a little more research” indicated that

several automobile accidents, including a couple of “fairly serious” ones, had taken place at the

intersection since the drive thru opened. Declaring the drive thru a “traffic hazzard [sic],”

Biddlestone reiterated the City’s intention to follow through with placement of temporary curbing

along Sunset and “permanent curbs” at some point in the future. On May 29, 2002, the City placed

barricades along Sunset, running from the drive-thru exit to the west end of the property line.4 Even

though the drive thru exit was not barricaded, customers could not use the drive thru, and refuse

trucks could not pick up trash, recycling, and waste grease at the back of the restaurant. The

Warrens experienced a drop in sales of about 22% in the month following the blockage of the drive

thru. 

Both parties offered extensive evidence during the district court proceedings regarding

traffic concerns related to the drive thru. Even though City officials such as Key, Pierson, and police

officer Roger Dierdorf testified, they presented no evidence that the City had attempted to design

a traffic enforcement plan in the area of the Dairy Queen, conduct a study of traffic flow on Sunset

Drive, or assess the particular impact of the drive thru itself. Officer Dierdorf, who regularly patrols

the area around the Dairy Queen, testified that he had never seen traffic backed up on Sunset Drive

waiting to enter the drive thru. An examination of accident reports in the vicinity of the

Columbus/Sunset intersection did not produce any evidence of accidents connected in any way to

the drive thru. In addition, the City produced two videos of the Columbus/Sunset intersection

covering week-long periods during the summer of 2002, but neither video revealed any traffic

problems or accidents. 

Various residents of houses on Sunset Drive testified about traffic problems caused by the

drive thru. For example, Ralph Kliesch described how cars exiting the drive thru often block Sunset

Drive, putting drivers turning onto Sunset from Columbus in danger. He also noted that cars turning

right into the drive thru have to swing into the other side of Sunset Drive, and Kliesch stated that

he often has to swing into the oncoming traffic lane when cars are stacked up on Sunset in line for

the drive thru. One resident, Ellen Kroutel, videotaped the stacking of cars on Sunset Drive on

March 28, 2001, during the largest promotion in Dairy Queen history. Other residents echoed these

concerns, as well as concerns over noise and use of residential driveways, but none of them reported
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 4

5

In reaching its conclusion that the City violated the Warrens’ substantive due process rights, the district court

rejected Thieken’s testimony and accepted that of DeWolfe. The City does not directly challenge the district court’s

credibility determination with respect to these two witnesses but essentially ignores it by reciting Thieken’s testimony

at length in its brief. Yet, the district court’s acceptance of DeWolfe’s testimony is not clearly erroneous, and we, as

an appellate court, cannot reweigh the testimony of these witnesses and accept that of Thieken rather than that of

DeWolfe. See Fed. R. Civ. P. 52(a) (“Findings of fact, whether based on oral or documentary evidence, shall not be set

aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the

credibility of the witnesses.”)

an inability to see the vehicles on Sunset from Columbus, an inability to reach their homes, or

witnessing firsthand an accident on Sunset Drive. The barricades installed by the city increased the

number of cars using the residential driveways on Sunset. 

In addition to evidence from City officials and local residents, both parties offered the

testimony and reports of an expert witness at trial. The City retained Stephen Thieken, a

transportation and traffic engineer, who found fault in the “stacking space” available to Dairy Queen

drive thru customers, the short distance (the “corner clearance”) between the drive thru exit and

Columbus Road, and the angled nature of the parking spaces on Sunset Drive. Thieken also reported

that the severity of accidents around the Dairy Queen increased after the drive thru was installed,

but he cautioned that it was difficult to “link the accidents directly to the operation of the Dairy

Queen drive-thru.” Thieken based his report solely on maps, conversations with City officials,

accident reports, and a one-hour visit to the site.

The Warrens offered the testimony and report of Richard DeWolfe, a civil transportation

engineer who had experience designing commercial sites, including drive thru restaurants and

banks.5 DeWolfe reviewed the Dairy Queen site, other businesses in the vicinity of the Dairy

Queen, accident reports, various letters sent among the parties to the case, the video shot by Ellen

Kroutel, and the two videos of the Columbus/Sunset intersection shot in the summer of 2002.

DeWolfe’s report rebutted each of Thieken’s conclusions. First, in DeWolfe’s view, the Institute

of Transportation Engineers (ITE) guidelines (upon which Thieken also relied) did not require a

longer “stacking space” than that provided by the Dairy Queen drive thru. Second, DeWolfe pointed

out that Thieken did not sufficiently observe traffic volumes at the intersection so as to support his

conclusion that insufficient corner clearance was provided between the drive thru exit and Columbus

Road. Similarly, DeWolfe found Thieken’s analysis of the angled parking on Sunset Drive to be

unsupported by any analysis of traffic volume or the relationship between the drive thru and the

accidents that have occurred. DeWolfe listed a number of other businesses in Athens with angled

parking, an amount of stacking space similar to that of Dairy Queen’s, and exits near an intersection.

DeWolfe concluded that these business locations created “more potential traffic conflicts than the

Dairy Queen.” These businesses, however, were not threatened with barricades.

Charles and Ruth Warren filed a complaint in federal court on June 6, 2002, seeking damages

and injunctive relief against the City and Biddlestone. The district court granted a temporary

restraining order against the City on June 7, and after an evidentiary hearing, the court issued a

preliminary injunction on June 26 ordering the City to remove the barriers on Sunset Drive.

Subsequently, on the Warrens’ motion, the district court dismissed without prejudice the plaintiffs’

claims against Biddlestone as well as their damage claims against the City, leaving only the

Warrens’ claims for declaratory and injunctive relief, as well as for attorneys’ fees and expenses.

Additional testimony and exhibits were presented at a trial in December 2002, and on March 18,

2003, the district court permanently enjoined the City from installing barricades, curbing, or

otherwise restricting access to the Dairy Queen. The City appealed from the district court’s order

on April 16, 2003. 
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 5

6

The Warrens’ complaint also alleges violations of procedural due process, substantive due process, and equal

protection rights under the Ohio Constitution. The district court correctly noted that these claims are governed by

essentially the same standards as those applicable to the Warrens’ federal constitutional claims. See Sorrell v. Thevenir, 633 N.E.2d 504, 511-12 (Ohio 1994). The City does not challenge the district court’s resolution of the Warrens’ state

constitutional claims on appeal, and therefore we will not address them. See Priddy v. Edelman, 883 F.2d 438, 446 (6th

Cir. 1989) (holding that issues not raised in appellant’s brief will not be considered on appeal). 

7

The damages sought by the Warrens would have included such items as lost profits, not the value of the real

property.

II.

The Warrens’ rather imprecise complaint alleges an arbitrary “taking of property without

due process” and a violation of their “right to equal protection, procedural due process, and

substantive due process.” It generally asserts violation of the Warrens’ Fifth and Fourteenth

Amendment rights. The essence of the Warrens’ factual allegations and argument is that the City

violated their federal constitutional rights6

 by placing barriers “along” their property, thereby

“blocking” access to the drive thru, both for customers and for trash and waste removal. They allege

that such barriers were not erected at other similarly situated businesses. They assert that they have

no administrative appeal remedy and received no notice of a hearing or appeal.

After scrutinizing the complaint, it is fairly clear that the Warrens assert an equal protection

claim based on their allegations that the City did not erect barricades at similarly situated businesses.

Also, their procedural due process claim rather obviously derives from the lack of a hearing to

challenge the erection of the barriers. The Warrens also assert, however, a third claim which is less

well-defined in the complaint. This third claim presents the issue of whether the City’s erection of

the barriers is an unconstitutional restriction on the Warrens’ use of their property. The Warrens

have described this claim as a substantive due process claim, and we refer to it in the same way,

although we do not entirely agree with either the Warrens’ or the district court’s characterization of

it. We address the third claim, which requires the most difficult analysis, first. 

A. The Substantive Due Process Claim

In this case, the appropriate legal analysis of the Warrens’ claim of “taking of property

without due process” is entirely dependent on its proper characterization. The district court

extensively addressed the standards applicable to takings claims and eventually concluded that the

Warrens’ complaint actually involved a private use takings claim brought “under a substantive due

process theory.” The court went on to evaluate this “substantive due process” claim, holding that

the City’s actions amounted to a taking for private use, thus infringing the Warrens’ substantive due

process property rights. We review legal conclusions upon which a decision to grant an injunction

is based de novo. Sharpe v. Cureton, 319 F.3d 259, 272 (6th Cir. 2003). 

Although the Warrens mention the Fifth Amendment in their complaint, they have not sought

to base their action on the Just Compensation Clause of the Fifth Amendment. Certainly, the

Warrens have never contended that the City placed its barriers or otherwise physically encroached

on their property. Such an allegation would have been a physical takings claim. See Waste Mgmt.,

Inc. v. Metro. Gov’t, 130 F.3d 731, 737-38 (6th Cir. 1997). Also, more fundamentally, although the

decision to place barriers along the Warrens’ property could be considered a regulatory taking

arguably falling within the ambit of the Just Compensation Clause, see Williamson County Reg’l

Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985), the Warrens have not sought

monetary compensation for the taking of their property, even before they sought dismissal of their

claims for damages.7

 Therefore, the appellees’ claim does not fall under the Just Compensation
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 6

8

The fact that any taking here was not for a private use does not imply that governmental deprivation of the

Warrens’ property interests was justified. We have no quarrel with the district court’s assessment of the lack of

justification for City action. The point here is simply that under applicable case authority the taking cannot be considered

one for a private use.

Clause of the Fifth Amendment. See id. at 194-95; Montgomery v. Carter County, 226 F.3d 758,

766-68 (6th Cir. 2000). 

Another possible basis for a Fifth Amendment claim is the theory that a taking is for a private

rather than a public use. The district court analyzed the Warrens’ claim as a private use taking,

although it grounded its analysis in Fourteenth Amendment substantive due process rather than in

the Fifth Amendment’s implied prohibition on takings for a private use. Private use takings do not

involve claims for compensation, as they “are unconstitutional regardless of whether just

compensation is paid.” See id. at 766. In Montgomery, upon which the district court relied, the

defendant county declared that it owned the plaintiff’s driveway and would consider any obstruction

of the driveway by plaintiff a crime. Id. This court held in Montgomery that the county’s action had

no rational relationship to any public purpose and was thus a “rare real-life example” of a taking for

a private use. Id. Montgomery noted, however, that few takings will meet the standard for a private

use taking, because all that is required for a public use is a rational relationship to some “conceivable

public purpose.” Id. at 765 (quoting Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 241 (1984)). 

The district court’s analysis of the Warrens’ claim as a private use substantive due process

claim is problematic for two reasons. First, although the City acted at the urging of residents of

Sunset Drive and for their benefit, the City’s action was rationally related to the conceivable public

purposes of traffic, noise and accident control.8

 This fact situation contrasts with that in

Montgomery where the county declared the driveway a county road at the urging of a single

neighbor whose motive was to obtain delivery of mail to her home. Id. at 763. Second, although

the Montgomery panel did not explicitly decide whether a private use taking claim could be asserted

as a substantive due process claim, it analyzed the two issues separately in the case and cast a dim

light on the prospect that a claim merging the two principles would be viable. See id. at 768-69

(“[I]t is not clear why the concept of substantive due process should have any place in takings

cases.”). The district court’s private use takings analysis of the Warrens’ case thus appears

inconsistent with both the facts and the law, and we decline to adopt it. 

Although the Warrens embrace the district court’s private use analysis, they also assert that

their claim is a substantive due process claim of the type described in Williamson County. See 473

U.S. at 197. Their argument is that placement of the barriers constituted a government regulation

“that goes so far that it ha[d] the same effect as a taking by eminent domain” and thus was “an

invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth

Amendment.” Id. The remedy for such a violation would not be “just compensation” but rather

invalidation of the regulation. Id. This “due process takings” theory is based on language in

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), which held that “if regulation goes too

far it will be recognized as a taking.” In dicta in that case, Justice Holmes went on to suggest that

the Court meant “taking” not in the literal Fifth Amendment sense, but to represent all actions

having the same effect as a taking by eminent domain:

Government hardly could go on if to some extent values incident to property could

not be diminished without paying for every such change in the general law. As long

recognized, some values are enjoyed under an implied limitation and must yield to

the police power. But obviously the implied limitation must have its limits, or the

contract and due process clauses are gone. One fact for consideration in determining

such limits is the extent of the diminution. When it reaches a certain magnitude, in
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 7

9

We use the word “taking” here in the same sense as it is used in the Fifth Amendment’s Just Compensation

Clause, recognizing that “taking” has been used more loosely in other contexts to describe various types of deprivations

or harms to property.

most if not in all cases there must be an exercise of eminent domain and

compensation to sustain the act.

Id. at 413; see also Williamson County, 473 U.S. at 197-200 (interpreting Mahon and outlining the

rationale for the “due process takings” theory). The Warrens’ claim of “taking of property without

due process” potentially fits well within this theory. The Warrens’ case has never been about

compensation but rather has concerned “invalidation of the regulation” imposed by the City, the

argument being that the barricades were “so onerous that [they had] the same effect as an

appropriation of the property.” Id. at 197-99. Yet, the Supreme Court has left undecided three times

the issue of whether the Constitution supports such a theory. See id. at 185 (citations omitted). And

Supreme Court authority subsequent to Williamson County strongly stresses that substantive due

process concepts are not available to provide relief when another provision of the Constitution

directly addresses the type of illegal government conduct alleged by the plaintiff. See, e.g., Graham

v. Connor, 490 U.S. 386, 394-95 (1989) (analyzing an excessive force claim under a Fourth

Amendment standard and not “the more generalized notion of ‘substantive due process’”); Whitley

v. Albers, 475 U.S. 312, 326-27 (1986) (noting that in “the prison security context, the Due Process

Clause affords...no greater protection than does” the Eighth Amendment); see also Montgomery, 226

F.3d at 758 (“The takings clause itself addresses whether and under what circumstances the

government may take an individual’s private property, which is why a number of circuits have

concluded that no room is left for the concept of substantive due process.”) (citing Armendariz v.

Penman, 75 F.3d 1311, 1323-27 (9th Cir. 1996) (en banc), and Coniston Corp. v. Vill. of Hoffman

Estates, 844 F.2d 461, 464 (7th Cir. 1988)); cf. Choate’s Air Conditioning & Heating v. Light, Gas

& Water Div., 16 Fed. Appx. 323, 330-31 (6th Cir. 2001) (rejecting an effort to repackage a takings

claim as a substantive due process violation). We therefore decline to endorse a substantive due

process theory based on a claim that erection of the barriers amounted to an unconstitutional taking9

of property.

A final avenue exists for assertion of a substantive due process claim, but this avenue appears

outside the scope of the Warrens’ complaint and their argument on appeal. This court has

recognized that a substantive due process violation occurs when arbitrary and capricious government

action deprives an individual of a constitutionally protected property interest. See Tri-Corp Mgmt.

Co. v. Praznik, 33 Fed. Appx. 742, 747 (6th Cir. 2002); Pearson v. City of Grand Blanc, 961 F.2d

1211, 1216, 1217 (6th Cir. 1992); see also Nectow v. City of Cambridge, 277 U.S. 183, 187-88

(1928) (holding that a court should not interfere with local zoning decisions unless the locality’s

action “has no foundation in reason and is a mere arbitrary or irrational exercise of power having

no substantial relation to the public health, the public morals, the public safety or the public welfare

in its proper sense”) (internal quotation marks and citation omitted); Eide v. Sarasota County, 908

F.2d 716, 721-22 (11th Cir. 1990). While challenges to arbitrary and capricious government action

appear most frequently in cases involving zoning and other ordinances, see, e.g., Vill. of Belle Terre

v. Boraas, 416 U.S. 1, 8 (1974), they are not necessarily limited to such cases, see, e.g., Duke Power

Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 82-83 (1978) (noting that federal economic

regulations will be upheld “absent proof of arbitrariness or irrationality on the part of Congress”);

see also Zinermon v. Burch, 494 U.S. 113, 125 (1990) (“[T]he Due Process Clause contains a

substantive component that bars certain arbitrary, wrongful government actions ‘regardless of the

fairness of the procedures used to implement them.’”) (citation omitted). Although the district court

states that the City’s actions were a “de facto zoning change analogous to the denial of a zoning

variance or permit,” the Warrens do not assert such a claim here and, in fact, argue in their brief that

“the case at bar is not a zoning case” and that the City’s barricades were not placed pursuant to any
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 8

regulations or laws. Given the Warrens’ position, we will not consider the applicability of this

theory to the sort of particularized action involved in this case.

We recognize the soundness of the district court’s findings and conclusions about the lack

of any viable justification for the City’s erection of the barriers and the clear deprivation of the

Warrens’ right to ingress and egress from their property. Yet, given the law, the facts, and the

Warrens’ own arguments and characterization of their claims, we cannot conclude that the City

violated the Warrens’ substantive due process rights. 

B. The Procedural Due Process Claim

We now turn to consideration of the Warrens’ procedural due process claim. The Fourteenth

Amendment provides, in part, that “[n]o State shall . . . deprive any person of life, liberty, or property,

without due process of law.” U.S. Const. amend. XIV, § 1. Procedural due process generally

requires that the state provide a person with notice and an opportunity to be heard before depriving

that person of a property or liberty interest. See, e.g., Thompson v. Ashe, 250 F.3d 399, 407 (6th Cir.

2002) (“Courts have long recognized that the Fourteenth Amendment requires that an individual who

is deprived of an interest in liberty or property be given notice and a hearing.”). Only after a plaintiff

has met the burden of demonstrating that he possessed a protected property or liberty interest and was

deprived of that interest will the court consider whether the process provided the plaintiff in

conjunction with the deprivation, or lack thereof, violated his rights to due process. Hamilton v.

Myers, 281 F.3d 520, 529 (6th Cir. 2002).

Preliminarily, we consider the issue of ripeness of the procedural due process claim. Takings

claims, whether asserted as just compensation or substantive due process claims, are subject to

ripeness requirements, Williamson County, 473 U.S. at 194, 199-200, as are procedural due process

claims that are ancillary to takings claims, Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002). Here

the Warrens’ procedural due process claim is not ancillary to their takings claim, but addresses a

separate injury–the deprivation of a property interest without a predeprivation hearing. See

Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 893-95 (6th Cir. 1991)

(explaining the “vital distinction between procedural due process claims and other varieties of

constitutional grievances stemming from land use decisions”); see also Hidden Oaks Ltd. v. City of

Austin, 138 F.3d 1036, 1045 n.6 (5th Cir. 1998) (holding that Williamson County would not apply

when “main thrust” of plaintiff’s claim is procedural due process, not takings); cf.Nasierowski Bros., 949 F.2d at 899 (Martin, J., concurring) (stating that the Williamson County requirements will apply

when “the procedural due process claim is in reality an adjunct to a taking or other constitutional

claim”).

In resolving the procedural due process claim, the first issue is whether the Warrens were

deprived of a property interest. Property rights are created and defined not by the Constitution but

by independent sources such as state law. Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002). In

State ex rel. Merritt v. Linzell, 126 N.E.2d 53, 54 (Ohio 1955), the Ohio Supreme Court held:

An owner of property abutting on a public highway possesses, as a matter of law, not

only the right to the use of the highway in common with other members of the public,

but also a private right or easement for the purpose of ingress and egress to and from

his property, which latter right may not be taken away or destroyed or substantially

impaired without compensation therefor.

This right of access is especially important for businesses abutting a public street. See Branahan v.

Cincinnati Hotel Co., 39 Ohio St. 333, 333-34 (1883). Under Ohio law, the state may regulate a

property owner’s easement of access without compensation as long as there is no denial of ingress

or egress. Castrataro v. City of Lyndhurst, No. 60901, 1992 Ohio App. LEXIS 4352, at *8 (Ohio Ct.

App. Aug. 27, 1992). However, a landowner’s property interest is infringed even when a
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 9

10The Warrens are correct in pointing out that the 1998 zoning decision, which the Warrens could have

appealed, is unrelated to the placement of the barricades, for which there was apparently no avenue of appeal. The 1998

zoning decision, moreover, was premised on the assumption that the City owned a right-of-way over the Warrens’

property, an assumption which later proved incorrect. 

government blocks off only part of the property’s access to public roads. See id. at *12-*14; see also

State ex rel. OTR v. City of Columbus, 667 N.E.2d 8, 15 (Ohio 1996) (finding that a taking can occur

even when the government does not deny all access to the property); Starr v. Linzell, 129 N.E.2d 659,

661 (Ohio Ct. Com. Pl. 1955) (citing Merritt, 126 N.E.2d at 56) (finding that the blocking of one of

a business’s entrances “molests a property enjoyment” of the owner). Castrataro’s facts resemble

those of the present case. In Castrataro, the city placed barriers across one of two entrances to a

shopping center. See 1992 Ohio App. LEXIS 4352, at *5. The court held that since the burden of

the barriers was placed solely on the landowner’s property and not on the general public, the city’s

action was a regulatory taking of a property interest. Id. at *12-*14. Like the landowner in

Castrataro, the Warrens bear the sole burden of the barriers placed by the City. According to these

principles, then, the City of Athens clearly deprived the Warrens of a property interest by erecting

barricades across one of the two means of access to their Dairy Queen. 

The second step in the procedural due process analysis is determining whether the City’s

deprivation of the Warrens’ property interest contravened notions of due process. Generally, the

process that is due before a property deprivation includes prior notice and an opportunity for a

predeprivation hearing. Harris v. City of Akron, 20 F.3d 1396, 1401 (6th Cir. 1994). In this case,

the Warrens received notice but not a predeprivation hearing. Under circuit precedent, a § 1983

plaintiff can prevail on a procedural due process claim by demonstrating that the property deprivation

resulted from either: (1) an established state procedure that itself violates due process rights, or (2)

a “random and unauthorized act” causing a loss for which available state remedies would not

adequately compensate the plaintiff. Macene v. MJW, Inc., 951 F.2d 700, 706 (6th Cir. 1991). A

plaintiff alleging the first element of this test would not need to demonstrate the inadequacy of state

remedies. Moore v. Bd. of Educ. of Johnson City Sch., 134 F.3d 781, 785 (6th Cir. 1998). If the

plaintiff pursues the second line of argument, he must navigate the rule of Parratt v. Taylor, 451 U.S.

527, 539 (1981), which holds that a state may satisfy procedural due process with only an adequate

postdeprivation procedure when the state action was “random and unauthorized.” See Macene, 951

F.2d at 706; see also Zinermon, 494 U.S. at 128 (narrowing Parratt to only those situations where

predeprivation process would have been impossible or impractical). In this context, “unauthorized”

means that the official in question did not have the power or authority to effect the deprivation, not

that the act was contrary to law. See id. at 138. 

Whether seen as an attack on an established state procedure or as an attack on a “random and

unauthorized” act, the Warrens’ claim is not subject to the Parratt rule. It clearly would not have

been “impossible” for the City to grant a predeprivation hearing to the Warrens. See Mackey v. Dyke, 29 F.3d 1086, 1093 (6th Cir. 1994); Harris, 20 F.3d at 1401. Moreover, even if the Parratt rule did

apply, it is not clear that any state remedies were available to the Warrens.10 Thus, if the City’s

action was a “random and unauthorized act,” then the Warrens’ claim prevails. If, alternatively, the

City’s action was the result of an established state procedure, then the question would be whether that

procedure violated due process rights. The Warrens have shown that the state procedure in this case

violated their rights. This court held in Nazierowski Brothers, in the course of evaluating a § 1983

claim alleging that a zoning change effected a procedural due process violation:

Governmental determinations of a general nature that affect all equally do not give

rise to a due process right to be heard. But, when a relatively small number of persons

are affected on individual grounds, the right to a hearing is triggered . . . . [T]he

Council’s action clearly resulted in a differentiable impact on a specifiable individual,

thus triggering a right to hearing.
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 10

11Appellees do not contend on appeal that the evidentiary ruling was erroneous.

12In fact, their initial complaint merely notes the fact that their son defeated Mr. Biddlestone; it does not allege

that Mr. Biddlestone acted out of ill will or animus in ordering the placement of the barriers.

949 F.2d at 896. The facts of Nazierowski Brothers, where the city (acting in accordance with state

procedure) singled out a landowner for regulation detrimental to the landowner’s property interest,

are directly analogous to the Warrens’ case. The same reasoning therefore applies, yielding the

conclusion that the City of Athens violated the Warrens’ procedural due process rights. For the above

reasons, we affirm the judgment of the district court on this issue. 

C. Equal protection

Finally, we turn to the Warrens’ equal protection claim. “No State shall . . . deny to any

person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The

purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within

the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express

terms of a statute or by its improper execution through duly constituted agents.” Sioux City Bridge

Co. v. Dakota County, 260 U.S. 441, 445 (1923) (internal quotation marks and citation omitted).

Equal protection claims can be brought by a “class of one,” where the plaintiff alleges that the state

treated the plaintiff differently from others similarly situated and that there is no rational basis for

such difference in treatment. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). The “rational

basis” test means that courts will not overturn government action “unless the varying treatment of

different groups or persons is so unrelated to the achievement of any combination of legitimate

purposes that [the court] can only conclude that the [government's] actions were irrational.” Kimel

v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000) (internal quotation marks and citation omitted). 

A “class of one” plaintiff may demonstrate that a government action lacks a rational basis in

one of two ways: either by “negativ[ing] every conceivable basis which might support” the

government action or by demonstrating that the challenged government action was motivated by

animus or ill-will. Klimik v. Kent County Sheriff’s Dept., 91 Fed. Appx. 396, 400 (6th Cir. 2004)

(citations omitted); Bower v. Vill. of Mount Sterling, 44 Fed. Appx. 670, 677-78 (6th Cir. 2002).

Here, despite the district court’s ruling and appellees’ arguments, the Warrens cannot negative all the

bases upon which the City’s act was premised. The City acted in response to numerous complaints

from Sunset Drive residents who were concerned about traffic congestion and safety. Surely,

responding to these concerns, which were legitimate state interests, constituted at least one

conceivable basis for the placement of the barricades. The Warrens, then, are left with an argument

that City officials were motivated by ill will. This argument has potential merit, based on the fact that

City Prosecutor Biddlestone, the incumbent, was handily defeated in a primary election in 2000 for

County Prosecutor by the Warrens’ son. The appellees noted this in their original complaint and

motion for preliminary injunction, and their lawyer attempted to examine Mr. Biddlestone on the

issue during the preliminary injunction hearing, but the district court sustained an objection to this

line of questioning based on relevance.11 Therefore, the Warrens failed to show during the

proceedings below that Mr. Biddlestone acted out of ill will or animus.12 We hold that the Warrens’

“class of one” equal protection claim fails.

D. Permanent injunction

This court reviews the district court’s decision to grant a permanent injunction for abuse of

discretion. Sharpe, 319 F.3d at 272; Wayne v. Vill. of Sebring, 36 F.3d 517, 531 (6th Cir. 1994).

“‘An abuse of discretion is defined as a definite and firm conviction that the district court committed

a clear error of judgment.’” United States v. Miami Univ., 294 F.3d 797, 806 (6th Cir. 2002) (citation
No. 03-3580 Warren et al. v. City of Athens, Ohio Page 11

13We note that the City’s failure to appeal the Ohio constitutional claims renders the district court’s disposition

of those claims final and eliminates the possibility that the City could again seek to erect the barriers after providing the

Warrens a hearing. Thus, there is no need to modify the permanent injunction to permit that possibility.

omitted). In other words, a district court abuses its discretion when it relies on clearly erroneous

findings of fact or improperly applies the law. Id. 

Where a plaintiff establishes a constitutional violation after a trial on the merits, the plaintiff

will be entitled to permanent injunctive relief upon a showing of: (1) a continuing irreparable injury

if the court fails to issue the injunction, and (2) the lack of an adequate remedy at law. Kallstrom v.

City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998). The Warrens have established that the City

violated their procedural due process rights. They have also shown a continuing irreparable injury,

in that with the barricades, the drive thru would be inoperable and the Dairy Queen would likely go

out of business. Such financial ruin qualifies as irreparable harm. See Performance Unlimited, Inc.

v. Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir. 1995); cf. Basicomputer Corp. v. Scott, 973

F.2d 507, 511-12 (6th Cir. 1992) (holding that competitive losses and losses of customer goodwill

constitute irreparable harm). 

Nor is there an adequate remedy at law for the Warrens. Even though it would seem that the

Warrens could quantify their past lost profits due to the barricades and seek money damages in

compensation, see Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1186 (2d Cir. 1995), future lost profits

are much harder to quantify. Moreover, if these lost profits were of such a magnitude that the

viability of their business were threatened (thereby giving rise to an irreparable injury as described

above), then the Warrens would indeed have no adequate remedy at law and a permanent injunction

would be appropriate. See Auto. Elec. Serv. Corp. v. Assoc. of Auto. Aftermarket Distribs., 747 F.

Supp. 1483, 1513-14 (E.D.N.Y. 1990); see also Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d

1197, 1205 (2d Cir. 1970) (“Of course, Semmes’ past profits would afford a basis for calculating

damages . . . . But the right to continue a business in which William Semmes had engaged for twenty

years and into which his son had recently entered is not measurable entirely in monetary terms; the

Semmes want to sell automobiles, not to live on the income from a damages award.”); cf. Miami

Univ., 294 F.3d at 819 (holding that an injury is not fully compensable by money damages if the

plaintiff’s loss would make damages difficult to calculate). Based on the record in this case, it was

not an abuse of discretion for the district court to conclude that the Warrens could not obtain an

adequate remedy at law for the potential loss of their business. We therefore affirm the district

court’s order of a permanent injunction.13

III.

For the foregoing reasons, we affirm the district court’s order granting a permanent injunction,

although only on the basis of the City’s violation of the Warrens’ procedural due process rights.