Bartolomeo v. Brandon Charter Twp.

1

TRACY ANN BARTOLOMEO, Plaintiff, v. BRANDON CHARTER TOWNSHIP, et al., Defendants.

No. 23-cv-12385

United States District Court, E.D. Michigan, Southern Division

June 20, 2024

Honorable Gershwin A. Drain

REPORT AND RECOMMENDATION TO GRANT DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS OR TO DISMISS FOR LACK OF JURISDICTION (ECF NO. 27)

ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE

I. Introduction

Plaintiff Tracy Ann Bartolomeo, proceeding pro se, sues Defendant Brandon Charter Township and three of its employees. ECF No. 1. The Honorable Gershwin A. Drain referred the case to the undersigned to resolve all pretrial matters under 28 U.S.C. § 636(b)(1). ECF No. 32. Defendants move for judgment on the pleadings or to dismiss for lack of jurisdiction. ECF No. 27. The Court RECOMMENDS that their motion be GRANTED and that Bartolomeo's complaint be dismissed without prejudice.

II. ackground

In June 2022, Bartolomeo installed a six-foot fence along the perimeter of her residential property in Brandon Township, Michigan. ECF No. 1, PagelD.2-3. In July 2022, Defendant Jason Wilton, a Township building inspector, sent Bartolomeo notice that her fence violated a local ordinance restricting fences to four feet in height. Id., PagelD.3, 18. The notice gave Bartolomeo 15 days to comply with the ordinance. Id., PagelD.18. In September 2022, Defendant Joe Harris, a Township code enforcement officer, sent Bartolomeo another notice that her fence violated the ordinance. Id., PagelD.4, 20. It stated that it was a final notice and that Bartolomeo had 15 days to comply “to avoid any future notices or enforcement action.” Id., PagelD.20.

After receiving the notices, Bartolomeo sent Defendant Jayson Runball, the Township supervisor and personnel director, three Freedom of Information Act (FOIA) requests for the Township's charter to determine what authority the Michigan legislature granted the Township. Id., PagelD.4, 19. She allegedly received no response. Id., PagelD.4.

Bartolomeo's claims are difficult to parse. As far as the Court can discern, she asserts three constitutional claims under 42 U.S.C. § 1983: (1) a regulatory taking without just compensation in violation of the Fifth Amendment, (2) deprivation of equal protection in violation of the Fourteenth Amendment, and (3) deprivation of procedural and substantive due process in violation of the Fourteenth Amendment. Id., PagelD.2, 5-8. She also asserts a state-law FOIA claim and alleges that defendants violated both Michigan's Charter Township Act of 1947 and the Fences and Fence Viewers Act of 1978, and acted beyond the scope of their authority conferred understate law. Id., PagelD.6.

III. Analysis

A.

Defendants move to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1), arguing that Bartolomeo lacks standing and that her claims are not ripe. ECF No. 27, PagelD.235-239. Rule 12(b)(1) permits dismissal of an action for lack of subject-matter jurisdiction. “A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack).” Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). A facial attack questions whether the plaintiff has alleged a plausible basis for subject-matter jurisdiction, while a factual attack challenges the factual existence of subject-matter jurisdiction. Id.

When, as here, the defendant mounts a factual attack, “no presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Thus, “a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings.” Cartwright, 751 F.3d at 759-60 (cleaned up). The plaintiff bears the burden of showing that subject-matter jurisdiction exists. Id. at 760.

Article III limits federal courts' subject-matter jurisdiction to actual cases and controversies, a requirement enforced through the “justiciability doctrines” of standing and ripeness. Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 279-80 (6th Cir. 1997). The Court addresses defendants' standing and ripeness arguments in turn.

1.

To prove standing, a plaintiff must show three elements: “(i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). “If the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve.” Id. (cleaned up).

Defendants argue that Bartolomeo suffered no injury because she asserts only a threat of future enforcement by the Township. ECF No. 27, PagelD.236-238. They emphasize that she has received two preenforcement notices but has not yet been prosecuted or received a final decision from the Zoning Board of Appeals (ZBA). Id. But a plaintiff shows an injury in fact when she “alleges an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Kiser v. Reitz, 765 F.3d 601,608 (6th Cir. 2014) (cleaned up); see also Hightower v. City of Grand Rapids, 256 F.Supp.3d 742, 749 (W.D. Mich. 2017). A threat of prosecution exists when “a plaintiff has engaged in a course of conduct and the state has instructed him to stop or face disciplinary action.” Kiser, 765 F.3d at 608 (cleaned up).

Bartolomeo received two notices ordering her to comply with the ordinance or face enforcement action. ECF No. 1, PagelD.18, 20. Bartolomeo's fence, at six feet, is indisputably taller than the four feet permitted under the ordinance. She does not allege that she has modified her fence to comply with the ordinance or that she has any intention of doing so. Nor do defendants maintain that the Township will not enforce the ordinance against Bartolomeo if she does not modify her fence. Thus, Bartolomeo likely faces enforcement action by the Township, which may involve fines or other sanctions. Because defendants made a clear threat of enforcement in their notices, Bartolomeo has alleged an injury in fact. See Kiser, 765 F.3d at 609 (warning letters that did not commence an official enforcement action showed a credible threat of prosecution); Mattia v. Cityof Ctr. Line, No. 17-11169, 2017 WL 6422069, at *4 (E.D. Mich. Dec. 18, 2017) (an officer's warning that the plaintiff would be cited for violating an ordinance if he did not stop publicly displaying a sign presented a credible threat of prosecution). Bartolomeo has adequately pleaded injury in fact.

2.

Defendants next contend that Bartolomeo's taking, equal protection, and due process claims are not ripe. ECF No. 27, PagelD.237. The ripeness doctrine “requires that the injury in fact be certainly impending,” separating “those matters that are premature because the injury is speculative and may never occur from those that are appropriate for the court's review.” Magaw, 143 F.3d at 280 (cleaned up). Put differently, ripeness concerns the timing of an action and “prevents courts from handling cases that have not yet matured into full-blown disputes” and from rendering advisory opinions. Saginaw Cnty. v. Stat Emergency Med. Serv., Inc., No. 4:17-cv-10275, 2018 WL 3631966, at *3 (E.D. Mich. July 31, 2018) (cleaned up).

The Supreme Court held in Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank that a Fifth Amendment regulatory taking claim is not ripe unless two conditions are met:

(1) the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue; and (2) if the state had a reasonable, certain and adequate provision for obtaining just compensation at the time of the taking, just compensation was sought and denied through that procedure.

Arnett v. Myers, 281 F.3d 552, 562 (6th Cir. 2002) (quoting Williamson, 473 U.S. 172, 187, 194 (1985)) (cleaned up). The Supreme Court later overruled the second factor requiring landowners to seek compensation under the state's inverse condemnation process. Knick v. Twp. of Scott, 588 U.S. 180, 206 (2019). But the first factor requiring a final decision remains valid. Id. at 187-88; F.P. Dev., LLC v. Charter Twp. of Canton, 456 F.Supp.3d 879, 886 n.1 (E.D. Mich. 2020).

The Township did not reach a final decision about Bartolomeo's fence. Defendants determined that the fence violated § 46-243 of the Township's code of ordinances-a section within Chapter 46, which regulates zoning. See ECF No. 1, PagelD.18, 20.^[1] A zoning determination “cannot be deemed final until the plaintiffs have applied for, and been denied, a variance.” Seguin v. City of Sterling Heights, 968 F.2d 584, 587 (6th Cir. 1992); see also Knick, 588 U.S. at 187-88 (Williamson's holding that a taking claim was not ripe if a landowner could seek a variance remained valid). The ZBA can hear appeals about “all administrative orders, requirements, decisions or determinations made by an administrative official charged with enforcement” of Chapter 46, including requests for dimensional variances. ECF No. 27-4, PagelD.264-265 (cleaned up).

Bartolomeo does not claim that she sought a variance. Instead, she argues that the Township served her with a “final notice” that threatened enforcement of the ordinance and did not refer to an...