Background:
Paragon Properties purchased a 75-acre parcel in 1980. The property was vacant, unimproved, and not served by city water or sewer. The property was zoned for large-lot, single-family residential use. In 1984, Paragon submitted a request to Novi’s planning board to rezone the property to a mobile home district. After a hearing, the board recommended against the rezoning request and the city council denied the request.

Paragon sued for damages in circuit court,
claiming, in part, that the ordinance unconstitutionally deprived Paragon of its property in violation of its due process rights. The circuit count ruled in favor of Paragon finding that the zoning ordinance as applied constituted an unconstitutional taking. The Court of Appeals reversed on the grounds that Paragon’s constitutional claim was not ripe for review since Paragon had not first asked for a variance from the zoning board of appeals and had not brought an inverse condemnation action.

Why did the LDF get involved?
At stake was the issue of whether a property owner could challenge the constitutionality of a zoning ordinance without, first, having requested a variance from a zoning board of appeals.

What action did the LDF take?
Filed an amicus brief with the Michigan Supreme Court

What was the outcome?
The Michigan Supreme Court affirmed the Court of Appeals and held that, because the plaintiff failed to obtain a final decision from which an actual or concrete injury can be determined, its constitutional claim was not ripe for review.
The Court noted that the discretionary authority to enact a zoning ordinance and to adopt a zoning map rests with the legislative body of a city or village by amending the wording of an ordinance or by rezoning. Novi’s zoning ordinance also authorized a zoning board of appeals to grant a land use variance. A land use variance essentially is a license to use property in a way not permitted under an ordinance.

According to the Court, although the police power allows the government to regulate land use, the Fifth Amendment requires that compensation be paid if a government regulation unreasonably shifts social costs to an individual. A challenge to the validity of a zoning ordinance as applied is subject to the rule of finality, requiring that a landowner who challenges the constitutionality of a zoning ordinance obtain a final decision from which an actual and concrete injury can be determined and pursue a state inverse condemnation claim before the claim will mature. The request was not a final decision because, absent a request for a variance, there was no information regarding the potential uses of the property that might have been permitted, nor information regarding the extent of the injury Paragon may have suffered.

Who prepared the amicus brief?
Carol Rosati (Johnson, Rosati, Galica, Shifman, LaBarge, Aseltyne, Sugameli & Field, P.C.)
Marcia Howe (Johnson, Rosati, Galica, Shifman, LaBarge, Aseltyne, Sugameli & Field, P.C.)