The Honor able William O. Be rtelsman, United States District J udg e for the E astern D istrict * of Ke ntucky , sitti ng by

desig nation. NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON

File Na me: 10a0096n.06 No. 08-2639 UN I TE D ST AT ES C OU RT O F APP EA L S F O R T H E S IX T H C IR C U IT

MY L ES SI

NC L AI R, Pla int if f- Ap pe lla nt, On Appea l from the United States v. District Court for the Ea stern District of Michig an CI TY OF ECORSE, et al.,

De fe nd ants -A

pp e lle e s.

BEFORE: M OORE, KETHLE DG E, Circuit Judges; and B ERTEL SMAN, District Judge. * BERTE LSMAN, Distric t Judge: Plaintiff-Appellant, Myles Sinclair (“ Sinclair”), a ppeals fr om the district cour t ’s g rant of

su mma ry jud g me nt to De fe nd ant- Ap pe lla nt, Th e City of Ec or se , Mic hig an (“ the City” ). S in cla ir

su e d the City and so me of its of fi c ia ls fo r re fu sin g to g ra

nt him a c e rt if

ic a te of oc c up anc y fo r a

ho us e and lot he had pur chase d from Way ne County

at a tax sale. The only is s u e i n this appeal is Sinclair’s c laim for denia l of proce dural due proce ss. The dis tr ic t c ourt

g ra nte d s umm ary

jud g me nt o n th a t c la im o n th e g ro un d th a t Sin c la ir ha d no pr op e rt y int e re st that e nti tle d him to pro c e dura l due pr oc e ss. Th e dis tr ic t c ourt re a so ne d th a t be c a

us e Sin c la ir had ac quired his ti t l e from the County , and the County is not a “per son” that is entitled to due proce ss, the proper

ty interest i n the nonconf

orming use ende d automatically during the County ’s2

period of ow nership of the rea l es t at e an d wi thout the need f or notice or

a hea ring . I n sum, the dis tr ic t c ourt de te rm ine d that Sin c la ir c ou ld n ot h a ve a c qu ir e d a n in te re st t

hat th e County , it se lf

, d id not have. We have some r eser

vations with reg ard to that holding , beca use it s ee m s t o u s t hat, when actingin a proprie tary

capa city , a county

might we ll be entitled to due proce ss. Howeve r, we need not rea ch this issue or dec ide whethe r Sinclair otherwise purchased the property with a continuing viable nonconfo rm i ng use bec ause, e ven assuming that he had a n exis ting pr operty

rig ht in the

no nc on fo rm ingus e , a

c are fu l e xami natio n o f t

he re c or d be fo re us re ve a ls that Sin c la ir re c e ive d a ll the pr oc e ss t

hat w a s d ue . We thu s AF F IRM

. FAC TUAL AND PROCEDURAL BA CKGROUND A timeline is helpful in understandingthe mater ial fac ts of this case. Sometime prior to November 2003, Way ne County

acquir ed title to property

located at 4315 Six th Stre et in the City of Ecorse , Michig an pursuant to a tax fore closure. I n Novemb er 2 003, Sinclai r p u rc h as ed that proper ty from the County

at a tax sale. At that time, wate r ser vice to the proper ty had bee n turned off

for a pproxi mat ely

two and a ha lf y ear s. Nonethele ss, there w ere squatters who had bee n occupy ing the proper

ty for a n undeter mined period of time. In J anuar y 2004, Sin c la ir ob ta ine d a

n e vic tio n o rd e r t o r e mov e the sq uatte rs and

the ir be lon g ing s. On Fe bruar

y 24, 2004, the City

posted at the prope rty

a notice s t at i ng that a Certific ate of Oc c up anc y

or Us e Pe rm it w a s r e qu ir e d b e fo re the pr op e rt y cou ld be leg a lly

oc c up ie d. Sin c la ir

a p p l i e d f o r s u c h a c e rt i f i c a t e t h e s a m e d ay. By letter dated Fe bruar

y 27, 20 0 4 , a City

building off

icial advised Sinclair of

the ty pe information (site plans, e tc.) that the City would need “ to determine if [th e] p ro p erty is non-3

confor ming.” On Marc h 8, 2004, the same of ficial a dvised the may or in writing that Sinclair’s application had bee n denied be cause the prope rty failed to c onform to the City ’s minimum floor area and setba ck require ments. Those re quirements ar e set for th in the Cit y ’s cur

rent zoning or dinance , which wa s passed in 1983. The ref

ore, unde r t h at o rd inance , a ce rtificate of occ upancy could not be issued unless Sinclair was e ntitled to the benefit of a nonconf orming use, that is, a use of the prope rty

that pre- dated the zoning ordinanc e. At on e tim e , a

no nc on fo rm ing us e wa s a pp lic a ble to t he pr op e rt y in q ue sti on , b e c a

us e a ho us e that was inconsistent with the setbac k and y ard r equire ments was on the pr operty when the zoning

or din anc e wa s a do pte d. Ho we ve r, the zon ingor din anc e pr ov ide s: When a nonconf

orming use of a

structure , or structure and premises in combination is discontinued or ceases to exis t for a period of six (6) consec utive months or for a period of e ighte en (18 ) months during a n y three (3) y ear

period, the struc ture, or str uc tur e and

pr e mis e s in

c omb inatio n s ha ll n ot t he reafter be us e d e xce pt i n confor mance with the regulations of the district in which i t is located. Structure s occupie d by

seasona l uses are exempt from this provisi on. Ecorse , Mich. Z oning O rdinanc e ar t. 11, § 11.002(e)( 5). The City thus denied Sinclair’s a

pplication for a

cer tificate o f o c c u p a n c y b e c ause the building officia l ruled that the nonc onforming use had la psed bec ause the proper

ty had bee n abandone d for more than two y ear s, the wate r havingbeen tur ned off for that time. T h e C i t y ad v i s edS i n cl ai r t h at h e c o u l d ap p ea l t h i s ru l i n g b y s u

b m i t t i n g an ap p l i ca t i o n t o go be fo re the B oa

rd of Z on ing Ap pe a ls. No re str ic tio ns we re pla c e d on the iss ue s th a t Sin c la ir c ou ld raise be fore the B oard. On Se pte mbe r 20 , 20 04 , Sin c la ir fi le d an “ a pp lic a tio n” wi th Z on ing B oa rd of A pp eal s reque sting a

hear ing be fore the B oard to “ obt ai n [ a] v ar i ance to allow [the] owner to repa ir,4

reha bilitate property , to obtain building per mits allowing same.” A public hea

ring on Sinclair’s application was held o n Oc t o b er 1 8, 2004, the minutes of wh ic h a re in t his re c or d. Th e se min

ute s r e fl e c t th a t th e B oa

rd c onsi dered a ll m a tte rs that Sin c la ir raised. Sinclair

was re prese nted by

an attorne y , who made se vera l arguments on his behalf a s to why the desired nonconfor

ming use should be allowed. Sinclair argued principally that the prope rty had not been a bandoned, be cause he had obse rved pe ople living ther e befor e he boug ht it and that he had be e n r e qu ir e d to e vic t th e m. Th e me mbe rs of the bo ard ob se rv e d th a t th e se pe rs on s w e re “ sq uatte rs ” and, as note d above, that the occupa ncy was illeg al, as e vidence d by the fac t that the water

had bee n turned off

. Some me mbers observe d that Sinclair had not e x erc ised due diligenc e in r esea rchingthe pr op e rt y be fo re purc ha sin g it. One of the property ’s neighbors was also hea rd. I t is noteworthy

that there is no indication in th e mi n u te s th a t Si n c la ir o f f e r e d to b r in g b e f

o r e th e B o ar d an y e v id e n c e in a d d it io n to that ref lected by the minutes, nor does Sinclair c ontend that the minutes are in any way inacc urate

. There fore , th e Bo ard r

uled that the nonconf

orming use had la

psed and the cer

tificate of occupa ncy could not be issued. At the conclusion of the he aring , the Z oning B oard of Appea ls voted to deny Sinclair’s application. Mic hig an s ta tut e s p ro vid e that th os e a g g ri e ve d b y de c isi on s o f t

he B oa rd of Z on ingAp pe a ls may appea l to the county

circ uit court. See Mich. Comp. L aws Ann. § 125.585( 11) (1997)

. S i n c l a i r a v a i l e d h i m s e l f o f t h i s s t a tu t e an d

a p p e a l e d t o t h e C i r c u i tC o u rt f

o r W ayn e C o u n t y. The re cord on appea l indicates that the C ity ’s brief to the C ircuit Court raised the issue of whe ther the v ia b le n o n c o n f

o r mi n g u s e h a d

b e e na b an d o n e d

. T h e c o u rt a f

f ir me d th e d e c is io no f

th e b o a rd without opinion. W e note that this dismissal constit utes an implicit finding that the pr ocedur es usedAppar ently , an appe al to the Michig an C ourt of Appeals did not lie as a matter of r ight, a nd 1 the prope r proc edure s to seek discre tionary revie w had not bee n followed. 5 by the B oard w ere proper . See id. Sinclair then appe aled to the Michig an Court of Appea ls, w hich dismiss ed the appea l f or lac k of jurisdiction on September 16, 2005. 1 Sinclair filed this fede ral law suit on May 16 , 2 0 0 7 , asserting, a s is releva nt here , that defe ndants violated his fede ral rights by not providing him with a hearing prior to terminating the proper ty ’s nonconf

orming use. The district c ourt gr a nte d defe ndants’ motion for summary judgme nt by order dated June 19, 2008. Sinclair timely appea led. Anal y sis The a bove fa cts are not in disput e and thus only issues of l aw were prese nted t o the district

c ourt . T he re fo re , th e c a se wa s a pp ro pr ia te fo r d isp os iti on on su mma ry jud g me nt. Som e y e ars a g o, we had occa sio n to su mma ri ze c us tom ary

state zon inglaw a

nd its relationship t o fede ral c onstitut ional law. Pearson v. City of Grand Blanc , 961 F.2d 1211 (6th Cir. 1992). There , we obse rved that zoni ng invol v e s both leg islative and administrative func tions, which

are executed by

differ ent local bodies a

n d officia ls. Id. at 1220-21. This ca se conc erns only the administrative aspe ct of zoning. A mong the administrative func tions is t he application of the zoning ordinanc e to individual piece s of property , such as we have her e. Id. at 1218. The a dminist rative setup we se e in this case is ty pical. An official, usually known as the “ building inspec tor” or “ zoning officia l,” makes a

preliminary

deter mination when a pa

rticular pie ce of prope rty is sought to be develope d or improved. This de termination includes whether the prope rty confor ms to the z oning6

ordinanc e or, if not, whe ther ther e is a viable nonconfor ming use . Following this preliminary deter mination, the landowner

may appea l a dec ision that the proper ty is nonconforming to the Zo n i n g Board of A

ppeals by seekinga var iance – i.e. , a “lice nse to use prope rty in a way not permitted under

an ordina

nce,” Paragon Props. Co. v . City of Novi , 550 N.W.2d 772, 774 (Mich. 1996) – on g rounds such a s hardship or based on the unusual fe ature s of the prope rty . I n addition to seeking a var iance , howeve r, the landow ner ma y also contest the designation that the property was proper ly classified a s nonconfor

ming in the f

irst place. S

e e, e .g. , B i a l i k v. Stambaugh Twp. , No. 276281, 2008 WL 1885772, at *1 (Mich. Ct. App. Apr. 29, 2008)

. Due pr ocess r equire s that individual notice be g iven t o those aff ecte d by these a dminist rative d e c i s i o n s . H o w e v e r , “ w h e r e a p r e - d e p r i v a t i o nh e ar i n g i s i mp r a c t i c a b l e o r qu i c k a c t i o ni s n e c e s s a r

y, a post-depr ivation hear ing ma y be ade quate.” Ma tor

v . Ci ty of E c or se , 301 F . App ’x 476, 47 9 ( 6th C i r. 2 0 0 8 ) ( ci t i n g Harris v. City of Akron , 20 F.3d 1396, 1401 ( 6th Cir. 1994)). Sinclair argues her e that he should have been given notice t hat the nonconf orming use had la ps e d at th e tim e the la

ps e oc c ur re d. Ho wev er, a s th e a

bo ve dis c us sio n il lus tr a te s, thi s la ps e

oc c ur re d mo nth s o r y e ars be fo re Sin c la ir bo ug ht t

he pr op e rt

y . Th erefo re, it w a s n ot o nly imp ra c tic a

ble bu t ( sin c e the City

is n ot p os se sse d a s fa

r a s we are awa

re of a c ry sta l ba ll) imp os sib le to give Sinclair notice at that time. As the above chronolog y further shows, the City

did give Sinclair notice shortly afte r he purc ha se d th e pr op e rt

y that it s posi tio n wa s th a t th e no nc on fo rm ingus e ha d la ps e d. Th e City

a lso

a dv ise d Si nc la ir

ho w t o s e e k a dmi nis tr a tiv e re vie w of thi s dec isi on by su bmi tti ngan a

pp lic a tio n to the Z on ingB oa

rd of Ap pe a ls. He so ug ht suc h re vie w. No thi ng in thi s r e c or d in dic a te s th a t Sin c la ir was in any

way prec luded from making any argument he wished to make, either to the zoning offic ialI n Rudnik v. M ayers, 19 6 N .W. 2d

77 0 ( Mic h. 19 72 ), the Sup re me Cou rt of Mic hig an h e ld 2 that mere lack of

use wa s an insufficie nt basis of abandonme nt of a nonconfor ming use and that ther e had to be some e vidence of an intent to aba ndon to support a finding that the nonconf orming use had lapsed. 7 or the Z on ingB oa

rd of Ap pe a ls. Sinclair made his a

rg uments and the decision went ag ainst him. He makes no a ssertion here that this decision was arbitrary and capricious, which w ould be nec essar y to attack it as a

violation of substantive due pr ocess. See P earson , 961 F. 2d at 1221-22. As noted, S inclair’s sole argument on appea l is that his right to pr oc e du ra l due proc ess was vio la te d. Ho we ve r, we ho ld t hat Sin c la ir ’s a

pp e a l to the B oa

rd of Z on ingAp pe a ls, the he ari nghe ld there in, and the judicial re view that followe d aff orded him complete proce dural due proce ss. Sinclair argues that he was never aff orded a hea

ringon the issue of whe ther the County had intended to aba

ndon the nonconf

orming use. The law is clea r, however, that the Board of Z oning 2 Appea ls had jurisdiction to consider that issue, had Sinclair r aised it. I ndeed, the minutes refle ct that it was tried by

implication. Mich. Comp. L aws Ann. § 125.585 ( 1997), in eff ect at the time of these e vents, provided: (3) Th e b o ar d

o f a p p e a ls s h a ll h e ar

an d d e c id e a p p e a ls f r o m a n d r e v ie w an y

o rder , require ments, decision, or dete rmination made by an administrative of

ficial or body

char g ed wi th t he e nf or c e me nt o f a

n o rd ina nc e a do pte d und e r t

his a c t. T he bo ard

of a pp e a ls s ha ll a lso he ar a nd de c ide ma tte rs re fe rr e d to the bo ard or up on wh ic h th e bo ard

is r e qu ir e d to pa ss under a n ordinanc e of the leg islative body adopted unde r this act. . . .

. . . . (5 ) A n a

pp e a l ma y be take n b y

a pe rs on a g g ri e ve d, or

by an o ff ic e r, de pa rtme nt, board, or burea u of the c ity

or villag e. . . .

. . . . (8) The boa

rd of a ppeals shall fix a rea sonable time for the hearing of the appeal andAppar ently , this statute was not called to the attention of the court in Mat o r v. C i ty of 3 Ecorse, 301 F. App’ x 476 (6th Cir. 2008), leadingthe cour t to conclude that the var iance proce dure “off ere d no means to oppose the City ’s deter mina t i o n of vac ancy

or its decision to resc ind the proper ties’ viable- non-conf

orming -use status.” Id. at 480.

8 give duenotice of the appeal to the persons to whom re al prope rty within 300 feet o f t he p re m i s es i nqu es t i o ni s as s es s ed , an d t o t h e o cc u

p an t s o f s i n g l e an d

2 -f am i l y dwe l l i n gs within 300 fee t, the notice to be de livered pe rsonally or by mail addre ssed to the re spective ow ne rs and

te na nts a t th e a dd

re ss g ive n in

the la st a sse ssment rol l. Th e bo ard of a pp e a ls shall decide the appe al within a re asonable time. I f the tena nt’s name is not known, the ter m occupa nt may be used. Upon the hearing, a party may appear in pe rson or by agent or by attorney. (9) The board of appe als m ay reve rse or affirm, wholly or partly, or may modify the or de r, re qu ire me nt, dec isi on , o r d e te rm ina tio n a

pp e ale d from an d s ha ll m ak e an or de r, requireme nt, decision, or determination as in the boar d’s opi nion ought to be made in the premises, and to that end shall have all the powers of the officer or body fro m w hom the a p p e a l is taken . I f there are prac tical difficulties or unne cessa ry hardship in the wa

y of car rying out th e s t ri ct letter of the ordinanc e, the boa

rd of a ppeals may

in passing upon appea ls vary

or modify

any of its r ules or provisions r elating to the construction, or structura l c ha ng e s in , e qu ipm e nt, or

a lte ratio n of bu ild ing s or str uc tur e s, or

the us e of

land , b uil din g s, or structure s, so that the spirit of the ordinanc e shall be obse rved, public sa fety secur ed, and substantial justi ce done

.

. . . . (11) The decision of the boa rd of a ppeals shall be final. Howeve r, a pe rson having an intere st affe cted by

the zoning ordina

nce ma y appea l to the circuit cour t. Up on ap

pe al, the circuit court shall review the record and decision of theboard of appeals to insure that the dec ision meets all of the follow ing: (a) Compli es with the constitution and laws of this state. (b) Is ba se d u

po n p ro pe r p ro c e du re . (c) Is supported by c ompetent, mate rial, and subst antial evidenceon the rec ord. (d) Represe nts the reasonable ex ercise of discre tion granted by law to the board of ap pe als

. Id. (empha sis added). The plain mea

ning of this statute is t hat the Board could have considere d any argument the landowner

could have made or

di d m ak e to “the of

fice r . . . fr om whom the appea l” was taken. 3 Sinclair did argue that ther e wa s no abandonme nt be cause people we re living in the proper ty whenPlaintiff relies on Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 94 9 F .2 d 8 90 (6 th 4 Cir. 1991), for the proposition that the rig ht to file an ap p lication for a varia nce doe s not affor d sufficie nt due proc ess. This case ref ers only to due proc ess in the planning and leg islative stag e, i.e. , tha t w h e r e t h e C i t y p r o p o s e s t o z o n e o n e ’ s p r o p e r t y , t h e r i g h t t o f

i l e l a t e r f o r a v ar i an c e is n ot a substitut e for due process at the pl anning stag e. Cf. Brody v. City of Mason , 250 F.3d 432, 435, 437- 38 (6th Cir. 2001) (no violation of proc edura l due proc ess in administrative portion of zoning proce ss relating to approva l of paving ; plaintiff appealed to Zoning Boa rd of Appe als and wa s hear d a t he ari ng ); Dubuc v . Gree n Oak Twp. , 6 4 2 F. S u p p . 2 d 6 9 4 , 7 0 3 -0 5 (E

. D. M i ch

. 2 0 0 9 ) ( h o l d i n g, un de r m or e re c e nt M ic hig an s ta tut e , that the re wa s no vio la tio n of ri g ht to pr oc e dura l du e pr oc e ss; k e y i s t h at p l a i n t i f

f h a d o p p o rtu n i t y t o b e h e ar d r e g ar d i n g a l l e g e d n o n c o n f o r m i n g u s e o f

h i s p r o p e rt y, and he ha d rig ht to appeal to Z oning B oard of Appea ls and state c ourt). Plaintiff also re lies on the unpublished district court dec ision in Ho lly v . Ci ty of E c or se , No. 05-74238, 2006 WL2727006 (E.D. Mich. 2006) , but in that case the landowner was a ffor ded neither a pre - nor post-de privation h ea ri n g. 9 he bo ug ht i t. T he B oa

rd po int e d o ut, ho we ve r, that the re ha d be e n an a ba nd on me nt b e c a

us e tho se individuals were me rely

squatters a

nd the wate r had be en turne d off f or two y ear s. Thus, Sinclair’s argument was c onsidered. H e undoubtedly raised (or could have raised) it ag ain in his state judicial

a pp e a ls. Th e re c or d r e fl e c ts no e ff or t on Sin c la ir ’s pa

rt to pu t on any oth e r e vid e nc e , o r a ny sp e c if ic mention of the County ’s intent to abandon, or lack thereof, or any complaint befor e the Boar d about the proc edure s used. Sinclair did not contest the statement that the water had been turned off f or two y ear s, which wa s cer

tainly some evidenc e of the County ’s intent to abandon the nonconf orming use. 4 Ag ain, Sinclair has a

bandoned a ll claims be fo re t h is court except lack of proce dural due proce ss. We conclude that the r equire ments of the Due Process Clause w ere observe d. We AFF I RM.