UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

Leonard Green 

Clerk

100 EAST FIFTH STREET, ROOM 540 

POTTER STEWART U.S. COURTHOUSE 

CINCINNATI, OHIO 45202-3988 

Tel. (513) 564-7000 

www.ca6.uscourts.gov

 Filed: May 17, 2012 

 

 

Mr. Frederick Lucas 

Lucas & Baker 

7757 US 12, Suite A 

Onsted, MI 49265-0000 

Ms. Cindy Rhodes Victor 

Law Office 

3290 W. Big Beaver Road 

Suite 501 

Troy, MI 48084 

 Re: Case No. 11-1426, FMIO, Inc., et al v. Township of Summerfield, et al

Originating Case No. : 2:09-CV-12561 

Dear Counsel, 

 The Court issued the enclosed Order today in this case. 

 Sincerely yours, 

 

 

s/Cathryn Lovely 

Case Manager 

Direct Dial No. 513-564-7039 

cc: Mr. David J. Weaver 

Enclosure 

Mandate to issue 

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

No. 11-1426

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FMIO, INC.; RICHARD A. GARST,

Plaintiffs-Appellants,

v.

TOWNSHIP OF SUMMERFIELD, et al.,

Defendants-Appellees.

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ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF

MICHIGAN

 O R D E R

Before: SILER and KETHLEDGE, Circuit Judges; GRAHAM, District Judge.*

FMIO, Inc., a Michigan Corporation, and Richard Garst, its agent, appeal the district court’s

decision granting summary judgment to the defendants.

FMIO and Garst filed a complaint against the Township of Summerfield, Michigan, and

several township officials. The plaintiffs alleged the following facts: Beginning in November 2000,

Garst attended meetings of the Summerfield Township Board and made inquiries concerning

allegations of child pornography incidents occurring at the township fire hall. At the time, Nick

Lucas was the township fire chief and his mother, Zelda Lucas, was the supervisor of the township. 

At one of the meetings, Garst asked the members of the township board to resign, and he

subsequently began, but did not complete, the process of circulating petitions to recall several board

members. After a March 17, 2003 board meeting, during which Garst stated that there were certain

township firemen who should not be around children because of an ongoing FBI child pornography

The Honorable James L. Graham, United States District Judge for the Southern District of *

Ohio, sitting by designation.

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investigation, the minutes of the meeting falsely suggested that Garst named Randy LaRocca as one

of those firemen.

In late 2003, Garst received a letter from the township stating that his lease agreement for

certain farm property, which he had leased from 2000 through the end of 2003 for $6,550 per year,

would not be renewed. The township solicited bids and leased the property to the highest bidder

through the end of 2006. In May 2008, Garst again leased the property for $12,797 per year.

In 2004, Zelda Lucas served Garst with a personal protection order against stalking. In late

2004 or early 2005, Nick Lucas filed assault charges against Garst. Garst was subsequently

acquitted. In February 2005, Garst received a letter from an attorney for David Kottke, the cemetery

sexton for the township, accusing him of slandering Kottke based on a comment attributed to Garst

in the minutes of an August 16, 2004 meeting of the township board. According to Kottke’s

attorney, Garst wrongfully implied that Kottke had stolen propane tanks belonging to the cemetery. 

On May 15, 2006, the township board voted to increase the application fee for site plan

review from $300 to $2,000, effective July 1, 2006. At that time, FMIO was in the process of

developing plans necessary to replace its produce stand, which required approval of the site plan. 

On June 29, 2006, Garst delivered FMIO’s completed site plan review application to the

Summerfield Township Hall with a $300 application fee. Later in 2006, Garst inquired about the

application with AmyReiter, the chairperson of the Township Planning Commission, but he received

no response. On November 13, 2006, the township informed Garst that it did not have the check that

was submitted with the site plan review application. FMIO immediately issued a certified check to

the township. On November 20, 2006, the township informed Garst that it could not find FMIO’s

site plan review application. In December 2006, the township informed Garst that it found the

engineered drawings of FMIO’s proposed produce stand, but could not find the application. 

Throughout 2007, Garst continued to inquire into the status of FMIO’s application. Kevin Iott, the

township supervisor, informed Garst that, to get the produce stand approved, FMIO would have to

resubmit its application with the $2,000 application fee.

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In September 2008, the township board adopted a dangerous building ordinance. In April

2009, Garst received notice that there would be a dangerous building inspection and hearing at the

property where FMIO was planning to replace its produce stand. Garst was not allowed to address

the status of FMIO’s site plan review application at the next township board meeting, but was

instructed to bring the issue up during the dangerous building hearing. The dangerous building

hearing was adjourned shortly after it began because township officials had not posted a notice on

the building as required by the ordinance.

On April 29, 2009, several township officials met to discuss FMIO’s site plan review

application. The following day, Reiter drafted a letter to Garst memorializing a conversation

between them in which they attempted to resolve the issues concerning the application. It was

agreed that FMIO would resubmit its application with a $300 filing fee and be responsible for certain

fees incurred during the review process. The township board did not approve the correspondence

from Reiter until the May 18, 2009 township meeting. On May 15, 2009, Garst requested under

Michigan’s Freedom of Information Act the records of the April 29, 2009 township meeting. The

township responded that no records were kept because there was no “meeting” under Michigan law.

Based on these factual allegations, the plaintiffs asserted numerous causes of action under

42 U.S.C. §§ 1983, 1985, and 1986 and under Michigan law. As relevant to this appeal, the

plaintiffs’ claims for relief included the following: (1) the defendants violated their substantive and

procedural due process rights and their right to equal protection; (2) the defendants defamed them

and retaliated against them for exercising their First Amendment rights; and (3) the defendants

violated Michigan’s Open Meetings Act, Freedom of Information Act, and Right to Farm Act. The

plaintiffs sought monetary and injunctive relief. The district court granted summary judgment to the

defendants and denied the plaintiffs’ motion for reconsideration. 

On appeal, the plaintiffs argue that the district court erred by granting summary judgment to

the defendants. We review de novo a district court’s grant of summary judgment. Franklin v.

Kellogg Co., 619 F.3d 604, 610 (6th Cir. 2010). Summary judgment is proper “if the movant shows

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that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). 

The plaintiffs first argue that the defendants violated their substantive due process rights in

several ways: (1) they increased the fee for site plan review applications because they knew the

plaintiffs were planning to submit an application; (2) they failed to act on the plaintiffs’ site plan

review application; and (3) they initiated proceedings against the plaintiffs under the dangerous

building ordinance without evidence that the plaintiffs’ building was dangerous, and they failed to

prosecute similarly-situated landowners. The plaintiffs also argue that the defendants denied them

procedural due process by failing to act on their site plan review application. To establish a

substantive due process claim, a plaintiff must demonstrate that a constitutionally protected property

or liberty interest has been deprived through arbitrary and capricious action. Braun v. Ann Arbor

Charter Twp., 519 F.3d 564, 573 (6th Cir. 2008). Procedural due process requires that an individual

be provided with notice and an opportunity to be heard before being deprived of a protected property

interest. Id. at 572.

The district court properlygranted summaryjudgment to the defendants on these claims. The

plaintiffs failed to present evidence demonstrating that (1) the defendants knew the plaintiffs were

planning to submit a site plan review application when the application fee was increased; (2) there

was no legitimate basis for initiating proceedings against the plaintiffs under the dangerous buildings

ordinance; or (3) the defendants did not enforce the ordinance against similarly-situated landowners. 

Further, the evidence concerning the defendants’ requests for resubmission of the application

materials, the plaintiffs’ failure to do so, and the defendants’ other attempts to resolve the dispute

over the application was insufficient to establish that the defendants arbitrarily and capriciously

refused to process the application, see N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 485 (9th

Cir. 2008), or that they denied the plaintiffs notice and an opportunity to be heard on the issue.

The plaintiffs next argue that the defendants violated their equal protection rights by

requiring them to pay additional fees to have their site plan review application processed that were

not assessed to other applicants and by selectively enforcing the dangerous buildings ordinance

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against them. The district court properly granted summary judgment to the defendants on this claim

because the plaintiffs failed to present evidence demonstrating either that other applicants were not

required to pay the additional fees or that the defendants did not enforce the dangerous buildings

ordinance against individuals who were similarly situated to the plaintiffs. See Radvansky v. City

of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005).

The plaintiffs next argue that the defendants retaliated against them for exercising their First

Amendment rights. The retaliation claim was based on the following actions of the defendants: (1)

obtaining a protective order against Garst and filing false assault charges against him; (2) falsely

attributing defamatory statements to Garst in the minutes of township meetings; (3) refusing to

continue the lease agreement with the plaintiffs in 2003; (4) increasing the site plan review

application fee and failing to process the plaintiffs’ application; (5) passing the dangerous building

ordinance and selectively enforcing it against the plaintiffs; and (6) prohibiting Garst from speaking

at township meetings. The district court properly granted summary judgment to the defendants on

this claim because the plaintiffs failed to present evidence demonstrating that the alleged retaliatory

acts were motivated by the plaintiffs’ exercise of their First Amendment rights. See Paige v. Coyner,

614 F.3d 273, 277 (6th Cir. 2010).

The plaintiffs next argue that the defendants violated Michigan’s Open Meetings Act in two

respects: (1) by conducting a non-public meeting on April 29, 2009, and by failing to keep records

of that meeting; and (2) by making a decision to accept the terms stated in Reiter’s subsequent letter

to Garst without conducting a public meeting. The plaintiffs further argue that the defendants

violated Michigan’s Freedom of Information Act by failing to keep records of the April 29, 2009

meeting and provide them to the plaintiffs upon request. The district court properly granted

summary judgment to the defendants on these claims. The plaintiffs failed to present evidence

demonstrating that a quorum of a public body was present on April 29, 2009, such that the

requirements of the Open Meetings Act were applicable. See Mich. Comp. Laws §§ 15.262(b),

15.263(1), 15.269(1). Because no records of the meeting needed to be kept, the defendants did not

violate Michigan’s Freedom of Information Act, Mich. Comp. Laws § 15.231, et seq., by failing to

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produce records to the plaintiffs. Finally, the plaintiffs’ evidence failed to demonstrate that the

township board improperly decided to accept the terms set forth in Reiter’s letter to Garst prior to

the regular public meeting on May 18, 2009. See Mich. Comp. Laws §§ 15.262(d), 15.263(1)-(3),

15.270(2).

The plaintiffs next argue that the defendants violated their rights under Michigan’s Right to

Farm Act, Mich. Comp. Laws § 286.471, et seq. The district court properly granted summary

judgment to the defendants on this claim because the provisions of the Right to Farm Act, which

prohibits nuisance litigation against farm operations, see Northville Twp. v. Coyne, 429 N.W.2d 185,

186 (Mich. Ct. App. 1988), were not implicated by the defendants’ actions.

Finally, the plaintiffs argue that the defendants defamed them by using false statements to

obtain the personal protection order, by falsely attributing statements to Garst in the minutes of the

March 17, 2003 and August 16, 2004 township meetings, and by stating that they failed to submit

a site plan review application and that they had a dangerous building on their property. The district

court properly granted summary judgment to the defendants on this claim because several of the

statements at issue did not tend to lower the plaintiffs’ reputation in the community or deter third

persons from associating or dealing with them, see Kevorkian v. Am. Med. Ass’n, 602 N.W.2d 233,

236 (Mich. Ct. App. 1999), and, in any case, the plaintiffs failed to present evidence of actual

damages resulting from the defendants’ actions. See Mich. Comp. Laws § 600.2911(2)(a), (7). 

Accordingly, we affirm the district court’s judgment.

 ENTERED BY ORDER OF THE COURT

Clerk

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