Barber v. Charter Twp. of Springfield

31 F.4th 382

Blanche BARBER, individually, and a class of similarly situated individuals, Plaintiff-Appellant,

v.CHARTER TOWNSHIP OF SPRINGFIELD, MICHIGAN; Charter Township of Springfield, Michigan Parks and Recreation; Oakland County, Michigan ; Oakland County Parks and Recreation Commission, Defendants-Appellees.

No. 20-2297

United States Court of Appeals, Sixth Circuit.

Argued: December 9, 2021

Decided and Filed: April 11, 2022

ARGUED: Ann Marie Pervan, KELLER & AVADENKA, P.C., Bloomfield Hills, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Springfield Township Appellees. Daniel A Klemptner, OAKLAND COUNTY, Pontiac, Michigan, for Oakland County Appellees. ON BRIEF: Ann Marie Pervan, KELLER & AVADENKA, P.C., Bloomfield Hills, Michigan, for Appellant. Jeffrey C. Gerish, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Springfield Township Appellees. Daniel A Klemptner, OAKLAND COUNTY, Pontiac, Michigan, for Oakland County Appellees.

Before: MOORE, CLAY, and READLER, Circuit Judges.

CLAY, J., delivered the opinion of the court in which MOORE, J., joined. READLER, J. (pp. 393–96), delivered a separate dissenting opinion.

CLAY, Circuit Judge.

Plaintiff Blanche Barber seeks a preliminary injunction against Defendants Charter Township of Springfield (the "Township"), Oakland County (the "County"), and both the Township and the County's Parks and Recreation departments (collectively, "Defendants"), to prevent Defendants from removing a dam near Barber's property. Barber alleges that Defendants’ plan to remove the dam amounts to an unconstitutional taking and a trespass. Defendants filed a motion for judgment on the pleadings, which the district court granted. Barber now appeals. For the reasons set forth below, we REVERSE the district court's order and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Barber owns land "directly adjacent" to Mill Pond and the Mill Pond Dam (the "Dam") in Springfield Township, Michigan. (Am. Compl., R. 12, Page ID #130.) A land survey showed that parts of her property "run directly into the Mill Pond" and include parts of the pond itself. (Id. at Page ID #144.) The Dam was built in 1836, and Barber's home was built several years later. Today, the Township and the County are jointly responsible for maintaining the Dam. In October 2018, Oakland County Parks and Recreation conducted a Feasibility Study to determine the future of the Dam. That study gave Defendants seven options: four required upgrading or repairing the Dam and three involved removing the Dam. On June 6, 2019, members of the Springfield Township Board ("the Board") met to discuss these options and ultimately recommended removing the Dam.

After this meeting, Defendants "agreed to remove" the Dam and entered into "Phase II – Mill Pond Dam Removal and Restoration Design/Engineering Services." (Id. at Page ID #130.) During this phase, Defendants hired engineering firms and allocated parts of the annual budget to the project. On February 14, 2020, the Township released a statement on its website saying that, "the project has moved to the next phase which includes preliminary engineering and conceptual park design." (Id. at Page ID #136–37.) On appeal, Barber points to a local newspaper article titled "Mill Pond Dam to be Removed Next Year," that ran on March 6, 2021. (Dkt. No. 20, Exh. A (hereinafter "Newspaper Article").) The article reported that the Dam removal project was "scheduled to begin in 2022." (Id. ) At oral argument, defense counsel admitted that Defendants have decided to remove the Dam and plan to break ground on the demolition this spring.

Barber alleges that removing the Dam will decrease her property value, interfere with her riparian rights, deprive her of her right to use and enjoy her land, and physically damage her property. She alleges that it "will likely pollute, impair and destroy natural resources, including ... surface water, wetlands, and wildlife and natural habitat." (Am. Compl., R. 12, Page ID #132–33.) Further, removing the Dam "may cause flooding and property damage to Plaintiff's residence." (Id. ) She goes on to list other effects, alleging that it would: increase pedestrian traffic around her property; increase noise and waste levels; eliminate fishing on the Mill Pond and disturb the fish community; create a nuisance to adjacent property owners; significantly decrease her property value; create "an area of swamp and stink;" destroy natural habitats; threaten endangered species in the area; lower the water table and drain the surrounding wetlands; increase pollution in the water; and affect septic systems. (Id. at Page ID #138–39.)

Barber sued Defendants on October 28, 2019 in state court, and the case was removed to federal court on November 27, 2019. See Barber v. Charter Twp. of Springfield , No. 19-13519, 2020 WL 7122073, at *2 (E.D. Mich. Dec. 3, 2020). She sought to enjoin the Dam-removal project, alleging that it would constitute a taking under the federal and Michigan constitutions and a trespass under Michigan law. After the suit was removed to federal court and Barber amended her complaint, Defendants filed a motion for judgment on the pleadings. See id. The district court granted Defendants’ motion, finding that Barber's claims were not ripe and that she lacked standing to bring suit. Id. at *3–*6. The district court failed to address Defendants’ remaining arguments, namely that Barber's amended complaint did not state plausible facts to support her takings claim. See id. Nor did the court reach the merits of Barber's request for a preliminary injunction. See id.

II. DISCUSSION

A. Jurisdiction

Barber brought a claim under 42 U.S.C. § 1983 alleging that Defendants violated her Fifth Amendment rights. Therefore, the district court had federal question jurisdiction under 28 U.S.C. § 1343(a)(1). See Sexton v. Cernuto , 18 F.4th 177, 183 (6th Cir. 2021). This Court has appellate jurisdiction because Barber timely appealed from a final order dismissing her case. See id. § 1291; Fed. R. App. P. 4.

B. Standard of Review

"We review de novo a district court's grant of a Rule 12(c) motion for judgment on the pleadings." Engler v. Arnold , 862 F.3d 571, 574 (6th Cir. 2017) (citing Kottmyer v. Maas , 436 F.3d 684, 689 (6th Cir. 2006) ). Pursuant to Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." We assess a Rule 12(c) motion "using the same standard that applies to a review of a motion to dismiss under Rule 12(b)(6)." Moderwell v. Cuyahoga Cnty. , 997 F.3d 653, 659 (6th Cir. 2021) (quoting Moore v. Hiram Twp. , 988 F.3d 353, 357 (6th Cir. 2021) ). Thus, "[t]o survive a Rule 12(c) motion, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Engler , 862 F.3d at 575 (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ) (internal quotation marks omitted). "When ruling on a defendant's motion to dismiss on the pleadings, a district court ‘must construe the complaint in the light most favorable to the plaintiff, accept all of the complaint's factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of his claim that would entitle him to relief.’ "

Id. at 574–75 (citing Kottmyer , 436 F.3d at 689 ). "But we ‘need not accept as true legal conclusions or unwarranted factual inferences.’ " Moderwell , 997 F.3d at 659 (quoting Jackson v. Prof'l Radiology Inc. , 864 F.3d 463, 466 (6th Cir. 2017) ).

C. Analysis

Barber claims that Defendants’ decision to remove the Dam—and the Dam's eventual destruction—amounts to an unconstitutional taking of her property without just compensation in violation of the Fifth Amendment.¹ The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: "[N]or shall private property be taken for public use, without just compensation." Cedar Point Nursery v. Hassid , ––– U.S. ––––, 141 S. Ct. 2063, 2071, 210 L.Ed.2d 369 (2021) (quoting U.S. Const. amend. V ). The Fifth Amendment prohibits both "physical takings" and "regulatory takings." Id. at 2071–72. Physical takings include when the government "uses its power of eminent domain to formally condemn property," "physically takes possession of property without acquiring title to it," or "occupies property." Id. at 2071. This third type of physical taking, occupation, can occur "say, by recurring flooding as a result of building a dam." Id. (citing United States v. Cress , 243 U.S. 316, 327–28, 37 S.Ct. 380, 61 L.Ed. 746 (1917) ).

The regulatory takings jurisprudence recognizes that the Fifth Amendment is "not limited to physical appropriations of property." Id. (citing Horne v. Dep't of Agric. , 576 U.S. 350, 360, 135 S.Ct. 2419, 192 L.Ed.2d 388 (2015) ). Thus, if a "regulation goes too far it will be recognized as a taking." Id. at 2072 (quoting Penn. Coal Co. v. Mahon , 260 U.S. 393, 415, 43 S.Ct. 158, 67 L.Ed. 322 (1922) ). The regulatory takings doctrine developed primarily in the context of land-use restrictions such as zoning ordinances. See id. Although quite different, the doctrines for physical takings and regulatory takings can overlap. In Cedar Point Nursery , the Supreme Court found that a regulation allowing union workers to enter agricultural workplaces was a per se physical taking. Id. at 2069, 2080. Accordingly, "[g]overnment action that physically appropriates property is no less a physical taking because it arises from a regulation." Id. at 2072. Barber raises both claims. She alleges that the decision to remove the Dam amounted to a regulatory taking and its eventual removal will exact a physical taking.

The district court did not reach the merits of her claims. Rather, it found that it lacked the power to hear her claims. See...