Daily Development for Thursday, August 25, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

CONSTITUTIONAL LAW; DUE PROCESS; NOTICE: City’s decision to eliminate curb cuts and deny access to restaurant’s “drive through” lane is a taking of property and, even though it may be a valid police power act, may not occur without prior notice and hearing.  Consequently, actions so taken without hearing may be permanently enjoined.

Warren v. City of Athens, Ohio, 411 F. 3d 697 (6th Cir. 2005)

Plaintiffs had operated a Dairy Queen in for several decades at the same location.  In the 1990's, it became apparent that they would be unable to compete in the fast food business without a “drive through” lane.  But the only logical place for such an installation was in an area of their property that abutted a “dead end” street with eighteen homes.  (The Dairy Queen was on the corner, fronting on a four lane former highway.)

For some time, there was uncertainty as to whether the City owned the property where the plaintiffs planned to locate their “drive through,” but ultimately it was determined that the “drive through” could be located on Plaintiffs’ land, so they built it. 

Over the next few years, neighbors in the “dead end” street became more and more strident about the impact of the “drive through” on their convenience and safety.  Ultimately, in response to this, City put temporary barriers in the curb cuts for Plaintiff’s “drive through” and announced plans to close off the curb cuts entirely, thus eliminating access to the street from the “drive through.”  Plaintiff had access to its property from the other side of its lot, off the former highway.

Plaintiffs alleged that the decision to cut off the drive through was a breach of Substantive Due Process and the Equal Protection Clause, as it was made with no logical foundation, no factual inquiry, and solely in response to political pressure from neighbors.  Further, the alleged that the action was also a breach of Procedural Due Process, since their right of access to the abutting street was a property right and they had been given been no hearing on the City’s proposed actions before it took that right away. 

The lower court bought all of Plaintiffs’ arguments, and issued a permanent injunction.

In this case, the Sixth Circuit affirmed the granting of the permanent injunction, but narrows the basis of the decision to the Procedural Due Process claim.

The court noted that there was no claim that this was an uncompensated regulatory taking, or physical taking, in breach of the Fifth Amendment takings provisions.  Rather, the Plaintiffs’ substantive due process claim was a Kelo type argument that their property - the access - was taking for the private benefit of their neighbors. It relied upon Montgomery v. Carter County, 226 F. 3d 759, 766, 68 (6th Cir. 2000), where the court set aside a declaration of the plaintiff’s driveway as a county road when it concluded that the sole basis for the declaration was  to effect mail delivery for a neighbor. Of course, the fundamental predicate was that there was no legitimate justification for the closure of the curb cuts rooted in the police power - such as an interest in traffic safety. 

The Equal Protection Clause claim also was based upon the notion that there was no rational basis for the decision to close the curb cuts here when the City had failed to do so in many other substantially similar arrangements (Plaintiffs’ competitors locations) throughout the City.

The court also declined to conclude that if the regulation in question were in fact a regulatory taking, it could be held void, rather than remedied by compensation.  Although, citing cases, the court developed a bit the notion that the possibility that a regulatory taking could be viewed as void, rather than simply compensable as an exercise of inverse condemnation, the court refused to consider the issue in this case. 

The court struck down most of the Substantive Due Process claims and the Equal Protection Clause on the same basis - it concluded that the basis for the City’s decision, although skimpy and suspect, was sufficient to meet the “rationale basis” test by which such decisions are to be measured.  (Not much surprise here.  Courts are unlikely to get into the business of traffic management.) 

But the analysis of the Procedural Due Process claim bore more fruit for the plaintiffs.   The court held that were the burden of a traffic restriction was borne solely by an individual’s property, it could constitute a taking of property even when it did not result in a total denial of access to the property. 

The plaintiffs in this case did have prior notice of the City’s action in closing the curbs, but were not given a predeprivation hearing.  They alleged that this was a “random and unauthorized act” in contravention of their Due Process rights.  Although, in emergency circumstances, a public agency can have a postdeprivation hearing after a taking has been carried out, the court held that there was demonstrably no real emergency here. 

But now comes the really amazing part - the remedy.  The court upheld a permanent injunction, on the grounds that the plaintiffs’ had been denied a Constitutional right and that any remedy other than injunction would lead to their economic ruin (the Dairy Queen was not viable without a drive through, and this was the only conceivable location for it), and damages for the destruction of their business would have relied upon proof of future profits, which are always uncertain. 

Comment 1: Permanent injunction???!!! Does this mean (as the editor suspects it does) that the City can never close that curb, even if it has a new hearing and makes new findings on traffic safety concerns?  This strikes the editor as patently absurd, and hardly a appropriate remedy for the denial of a hearing.  It would make sense to enjoin the City from closing the curb without a prior hearing, of course, but that virtually goes without saying.  Note that the trial court judge had greater justification for the permanent injunction that judge issued because of the findings that substantive due process and equal protection rights were implicated.  But to permanently enjoin a public body from taking police power actions in the future because it has failed to grant a preliminary hearing in the past?   Verrrrry interesting.  (But shtooopid.)

Comment 2:  In a particularly fuzzy part of the opinion, the court discussed where the curb closure here was not the result of a “random act” but rather part of an “established state procedure.”  It suggested that if there was an established procedure to make decisions of the type in question without prior hearing, such procedure would be flawed to the extent that it resulted in regulatory decisions that were felt entirely by a single parcel.   From the plaintiffs’ standpoint, it doesn’t seem to matter how the court characterized the City’s action; the action was unconstitutional either way.  But the editor found the discussion of how the court in fact characterized the action somewhat unsatisfying. 

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