Posted By: Professor Patricia E. Salkin
The fact that personal vendettas have no place in City Hall was reiterated in a recent Sixth Circuit Court of Appeals decision finding that the Mayor acted with malice intent and violated the substantive due process rights of a resident. Both the City and the Mayor, in his official and personal capacities, were held liable to the Plaintiff for compensatory and punitive damages as well as for attorneys’ fees. The facts and summary of the opinion are as follows:
Joseph Dorr purchased a home next to Larry Salisbury, who was later elected Mayor of the City of Escorse. Dorr’s home was a 90-year old building in need of repair and was considered a legal nonconforming use. He obtained approvals and permit from the City to make significant repairs and improvements to bring the home up to code. Following completion of the repairs, Dorr received a certificate of occupancy from the City and he received a beautification award from a local civic association in recognition of the considerable work he did on the dwelling. Unfortunately, from the beginning, Dorr and Salisbury had a contentious relationship with Salisbury having sued Dorr for alleged zoning violations. The court tossed the lawsuit as frivolous and ordered Salisbury to pay actual damages and expenses to Dorr, including attorneys’ fees.
Dorr subsequently applied for and received a permit to construct a garage extension, and obtained approval from the City on his final garage inspection. Dorr decided to sell the home, entering into a purchase agreement. Pursuant to City ordinances, he was required to obtain a new certificate of occupancy and undergo standard building code inspections. Around this time, Salisbury was elected Mayor. Despite having passed all of the necessary inspections, Dorr was denied a certificate of occupancy both administratively and from the zoning board of appeals. Although Dorr then obtained a court order form the Circuit Court compelling the City to issue the certificate of occupancy, the City refused to issue the certificate. This precluded Dorr from selling his home.
Dorr sued the City and Salisbury, in his official and individual capacity, alleging they violated his substantive due process rights by unlawfully denying him a certificate of occupancy which prevented him from selling his property. Following a jury trial that found Dorr’s due process rights were violated, Dorr was awarded compensatory and punitive damages. The City and Salisbury appealed.
In upholding the decision of the District Court, the Sixth Circuit Court of Appeals found that Dorr did have a vested property interest in the certificate of occupancy. The Court noted that he had a valid building permit and in reliance thereon he completed substantive work on the property which passed all relevant building code inspections. Further, the Court acknowledged he has an order from the Circuit Court compelling the City to issue the permit. The Court also found that Dorr submitted evidence demonstrating that once Salisbury was elected Mayor, he changed the way the city enforced its zoning code. For Salisbury to be held liable under Section 1983, Dorr met the required showing that Salisbury possessed power by virtue of state law and that he misused that power in a way that violated Dorr’s constitutional rights. Dorr presented evidence demonstrating that when Salisbury was elected, he retaliated against building inspectors who had granted permits to Dorr. Further, Dorr proved that Salisbury knew the reasons being used by the building department to withhold the certificate of occupancy were the same ones deemed frivolous and intended to harass Dorr in Salisbury’s earlier lawsuit against Dorr. The Court found sufficient evidence to establish that Salisbury acted under color of state law, and that it was clearly foreseeable that Dorr would suffer damages as a result of the City and Salisbury’s refusal to issue the certificate of occupancy.
With respect to punitive damages the Court held that there was sufficient evidence presented to the jury from which they could infer malicious intent. Specifically, Dorr presented evidence that Salisbury terminated inspectors who approved permits for Dorr, and ended City contracts with firms that resisted Salisbury’s new policy of strict enforcement. The Court also noted that Salisbury testified that he was aware that the City’s building department was using the same grounds to deny Dorr a certificate of occupancy that the State Court of Appeals had held were frivolous and brought to “injure or harass” Dorr. Lastly, the Circuit Court upheld the award of attorneys’ fees as reasonable.
Dorr v. City of Escorse, 2008 WL 5397760 (C.A. 6 (Mich) 12/29/2008).
The opinion can be accessed at: