Beech v City of Franklin, 2017 WL 1403201 (6th Cir. 2017)

An interesting case decided last April, the Sixth Circuit reviewed a decision by the Middle District where the neighbors of a barbershop sued because the city’s failure to close what they characterized as an illegal barbershop in their neighbors home constituted a taking of their property and violated their rights to equal protection and due process. The plaintiffs had filed originally in chancery court requesting a permanent injunction to prevent the operation of the barbershop. They also requested exemplary and punitive damages as well as attorneys fees. They also sued the city of Franklin, requesting a mandamus requiring the city to take steps to enforce the zoning ordinance. The Sixth Circuit emphasized that neither the original nor amended complaint requesting compensation for taking of private property. Ultimately the Williamson County Chancery Court entered summary judgment in favor of the city and the neighbor.

The plaintiffs then filed in federal district court alleging a taking. Citing a familiar case from the same part of the country, Williamson County Regional Planning Commission v Hamilton Bank, 473 US 172 (1985), the court noted that there are two requirements before filing a takings case in federal court: (1) the must be a final decision allowing the court to decide how much use of the property is permitted and (2) the plaintiff must seek compensation through procedures the state has provided before coming to federal court.

The Sixth Circuit noted that the Tennessee Supreme Court has held that the Tennessee Constitution requires just compensation for regulatory takings. Phillips v of Montgomery County, 442 S.W. 3d 233 (Tenn. 2014), and the Supreme Court has also recognized “nuisance-type takings” as compensable under the inverse condemnation statute. Edwards v Hall’s Dale-Powell Utility District, 115 S.W. 3d 461 (Tenn. 2003). Whether the plaintiffs characterized their taking as a regulatory taking or as a nuisance -type taking, they were required to utilize the procedures set out by the Tennessee Supreme Court and Tennessee state law. Having failed to do so, the case was ordered remanded to the district, and dismissed because it is not ripe under the Williamson County doctrine.

Taking that a little bit further, it is difficult to argue that land use activities on your adjacent neighbor’s property are so significant that it works a total take. It certainly is also difficult to lay that at the feet of the local government. A direct cause of action for nuisance against the neighbor might be more efficient, but of course in this case, the Chancery Court found no nuisance in the original action filed Williamson County.