Court: U.S. Court of Appeals for the Sixth Circuit (unpublished)

Case: James Hart and Kristin Hart v. Township of Presque Isle, Michigan, No. 24-2124 (6th Cir. Sept. 8, 2025)

Panel: Boggs, McKeague, and Mathis, JJ. (opinion by McKeague, J.)

Introduction

This case addresses a recurring problem in land‑use administration: what happens when a municipality issues a building permit that does not comply with its own zoning ordinances, construction begins in reliance on that permit, and neighbors challenge the authorization? The Sixth Circuit affirmed summary judgment for Presque Isle Township, holding that because the Harts’ original zoning permit was issued contrary to the Township’s ordinances (it lacked required, compliant scaled drawings), the Harts never acquired a vested right in their project under Michigan law. Without a cognizable property interest, their federal procedural due process claim (for a stop‑work order issued without notice or a pre‑deprivation hearing) and their Fifth Amendment takings claim both fail as a matter of law. The court also rejected attempts to invoke a narrow equitable estoppel exception and distinguished Michigan cases where a valid permit existed.

The decision clarifies, in the Michigan context and for federal constitutional claims litigated in the Sixth Circuit, that a permit issued in violation of local law confers no protected property interest—foreclosing both procedural due process and takings theories premised on that defective authorization. Although unpublished and therefore non‑precedential, the opinion offers a practical and legally rigorous roadmap for similar disputes.

Summary of the Opinion

• Facts: The Harts began building a home along Lake Huron in Presque Isle Township under a permit issued in July 2020. Neighbors appealed to the Zoning Board of Appeals (ZBA), alleging setbacks, height, and shoreline alterations. Under an ordinance that automatically stays proceedings pending appeal, the Zoning Administrator (Lang) issued a stop‑work order in July 2021, without prior notice or a pre‑deprivation hearing. After a public hearing, the ZBA revoked the permit because the application lacked compliant, scaled drawings required by ordinance. The Township worked with the Harts to issue a new permit; the stop‑work order lasted about 70 days. The interruption led the builder to abandon the job, delaying resumption until January 2023.
• Claims: The Harts alleged (1) a procedural due process violation for issuing the stop‑work order without notice or hearing, and (2) a temporary taking under the Fifth Amendment.
• District court: Granted summary judgment to the Township on both claims, concluding the Harts lacked a vested right and that, even if they had one, any deprivation was temporary and sufficiently mitigated by post‑deprivation process; and that the takings claim failed under Penn Central.
• Sixth Circuit holding: Affirmed. Under Michigan law, no vested right arises from a permit issued contrary to ordinance requirements. Without a vested right, the Harts lacked a protected property interest. Their procedural due process and takings claims therefore fail at the threshold. The court did not adopt a general rule about hearings before stop‑work orders because the Harts lacked the necessary property interest.
• Monell: Absent an underlying constitutional violation, the municipal-liability claims necessarily fail.

Detailed Analysis

Precedents Cited and Their Role

The court undertook a careful survey of Michigan vested‑rights doctrine—the state‑law source of the “property interest” necessary to trigger federal procedural due process and takings protections.

• City of Lansing v. Dawley, 225 N.W. 500 (Mich. 1929).
  The foundational “substantial character” test for vested rights: a permit holder gains a vested right to continue a use when there has been tangible change to the land itself by excavation or construction, not merely expenditures on plans or surveys. The Sixth Circuit cites Dawley as the starting point for Michigan’s approach.
• Dingeman Advertising, Inc. v. Algoma Township, 223 N.W.2d 689 (Mich. 1975).
  The Michigan Supreme Court distilled Dawley and related decisions into a crucial refinement: a lawful (valid) permit is a “crucial fact.” Reliance on a validly issued permit plus substantial work supports a vested right. This case helps set the two‑part inquiry: validity of the permit plus substantial reliance.
• Fass v. City of Highland Park, 39 N.W.2d 336 (Mich. 1949).
  The critical counterpoint: a permit issued in contravention of a zoning ordinance has “no legal status” and confers no vested right. The Sixth Circuit uses Fass to hold that the Harts, whose application lacked required scaled drawings, never had a valid permit, and thus acquired no vested right notwithstanding their construction progress.
• Pittsfield Township v. Malcolm, 134 N.W.2d 166 (Mich. 1965).
  A narrow equitable estoppel exception: where a municipality issued a permit that contravened zoning, and the owner made substantial, specialized investments, a court may, in “exceptional” circumstances, estop enforcement “in equity and good conscience.” The Sixth Circuit finds Pittsfield inapplicable: the Harts’ situation (a temporary stop‑work order followed by a new permit and eventual completion of the home) lacks the permanence and irreversibility that justified estoppel in Pittsfield.
• Kalkman v. City of Village of Douglas, 2012 WL 4215834 (Mich. Ct. App. Sept. 20, 2012).
  Distinguished. There, the permit was valid and the stop‑work order stemmed from the city’s misinterpretation of its ordinance, leading to a takings finding. Here, the defect was in the permit itself—noncompliant application materials—so no vested right ever arose.
• Sixth Circuit property-interest cases:
  • 600 Marshall Ent. Concepts, LLC v. City of Memphis, 705 F.3d 576, 588 (6th Cir. 2013) (no legitimate property interest from an erroneously issued permit).
  • Dodd v. City of Chattanooga, 846 F.3d 180, 187 (6th Cir. 2017) (no procedural‑due‑process or takings claim without a protected property interest).
  • Andrews v. City of Mentor, 11 F.4th 462, 469–72 (6th Cir. 2021) (takings claim requires a cognizable property interest; property interests defined by state law and background principles).
  • Coalition for Government Procurement v. Federal Prison Industries, 365 F.3d 435, 481 (6th Cir. 2004) (two‑step takings framework: property interest, then taking).
  • Puckett v. Lexington-Fayette Urban County Government, 833 F.3d 590, 609–10 (6th Cir. 2016) and Raceway Park, Inc. v. Ohio, 356 F.3d 677, 683 (6th Cir. 2004) (no taking if no property to take).
• Supreme Court takings background:
  • Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027 (1992) (no taking where use was never part of the titleholder’s bundle of rights under background principles).
  • Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) (regulatory takings factors) — addressed by the district court, but unnecessary on appeal given the absence of a property interest.

Legal Reasoning

1. Property interests derive from state law. The court starts with Michigan’s vested‑rights doctrine. To possess a protected property interest in a land‑use approval, an applicant generally must have a valid permit and have undertaken substantial, tangible work on the land in reliance on that permit.
2. The Harts’ permit was invalid under the Township’s ordinances. The ordinances required “dimensioned plats or plans drawn to scale,” including elevations, natural features, topography, and utility/sewer details. The Harts’ application omitted several required elements. The ZBA revoked the permit on that basis, and the Zoning Administrator acknowledged issuing the permit “in a hurry,” overlooking deficiencies. Under Fass, a permit issued contrary to existing law has no legal status. Therefore, no vested right arose, even though construction had commenced.
3. No property interest means no due process or takings claim. Without a vested right, there is no “property” interest protected by the Fourteenth Amendment’s Due Process Clause or the Fifth Amendment’s Takings Clause. The court thus rejects:
   • Procedural Due Process: The Harts urged recognition of a rule requiring a pre‑deprivation hearing before a stop‑work order absent exigency. The panel did not adopt or reach such a rule; it held simply that in the absence of a cognizable property interest, the Due Process Clause does not attach. The availability of a post‑deprivation ZBA hearing—at which the Harts were represented by counsel—further underscored the adequacy of process if process had been required.
   • Takings: Because the Harts lacked a cognizable property interest, the claim fails at step one of the takings analysis. The court therefore did not reach whether the 70‑day stop‑work order amounted to a temporary regulatory taking under Penn Central.
4. Narrow estoppel exception inapplicable. The court distinguished Pittsfield Township v. Malcolm. In Pittsfield, a highly specialized and non‑repurposable kennel was built and operated for months before enforcement, and equity barred the Township from enforcing a pre‑existing prohibition. Here, the Harts ultimately obtained a new, compliant permit and completed their house; the stop‑work order was temporary and tied to a procedural defect in the application, not a permanent deprivation of use. These were not the “exceptional” circumstances that justify estoppel.
5. Monell liability fails automatically. Municipal liability under Monell requires an underlying constitutional violation. Because there was none, the derivative claim cannot succeed.

Impact and Practical Implications

• For property owners and developers in Michigan: Reliance on a permit that was issued contrary to ordinance will not create a vested right, even after substantial on‑site work. If materials required by zoning ordinances (like fully compliant scaled drawings with topography, elevations, and utility plans) are missing, the permit is vulnerable, and work done in reliance will not be protected by the Due Process or Takings Clauses if a stop‑work order follows.
• For municipalities: The decision validates the use of stop‑work orders—especially when tied to an ordinance that stays proceedings during a zoning appeal—without triggering federal constitutional liability, so long as the underlying permit was defective under local law and post‑deprivation review is available. It underscores the importance of carefully verifying permit applications before issuance; but if an error occurs, promptly using established administrative processes (e.g., ZBA hearings) can mitigate risk.
• On procedural due process doctrine: The panel declined to announce a general requirement of pre‑deprivation hearings for stop‑work orders. That question remains open. But as a practical matter, when a property interest is uncertain or absent (e.g., due to an invalid permit), pre‑deprivation process is not constitutionally required. Municipalities should still ensure meaningful and prompt post‑deprivation procedures.
• On regulatory takings litigation: Plaintiffs must clear the threshold property‑interest hurdle before courts will engage Penn Central. Where a permit is void ab initio under state law, a temporary stoppage to ensure compliance typically will not be a compensable taking.
• On equitable estoppel: Pittsfield remains a narrow, fact‑intensive exception. Temporary interruptions to correct permitting defects, followed by issuance of a valid permit and completion of the project, generally will not qualify as “exceptional” circumstances warranting estoppel against enforcement.
• Precedential status: This opinion is “Not Recommended for Publication” in the Sixth Circuit. It is not binding precedent but is persuasive, especially for Michigan‑law property‑interest questions arising in federal constitutional claims.

Timeline and Notable Procedural Features

• 2016: Harts purchase the lot.
• 2020: Permit issued despite noncompliant application; construction begins; neighbors complain of height/shoreline issues.
• July 2021: Neighbors appeal to ZBA; ordinance mandates a stay; Zoning Administrator issues stop‑work order without pre‑deprivation hearing (limited work allowed to make structure weathertight).
• August 2021: ZBA holds public hearing; revokes permit based on missing compliant scaled drawings and required details.
• Shortly thereafter: Township works with Harts; compliant plans submitted; new permit issued. Stop‑work duration ≈ 70 days. Builder departs; construction resumes January 2023.
• District court: Summary judgment for Township on due process and takings claims.
• Sixth Circuit: Affirmed.

Complex Concepts Simplified

• Vested right (property law): A legally protected entitlement to continue a use or project, typically arising when a valid permit exists and the owner has performed substantial on‑site work in reliance on that permit. In Michigan, both permit validity and substantial, tangible change to the land matter.
• Property interest (constitutional law): An entitlement recognized by state law and sufficiently definite to be protected by the Due Process or Takings Clauses. If state law provides no such entitlement (e.g., because a permit is invalid), federal constitutional protections do not attach.
• Procedural due process: The requirement that government provide fair procedures (notice and an opportunity to be heard) before depriving a person of life, liberty, or property. No process is constitutionally required if no protected interest exists.
• Pre‑deprivation vs. post‑deprivation process: Some deprivations require a hearing before government action; others can be followed by adequate, prompt post‑deprivation review, especially where pre‑deprivation process is impracticable. The court did not decide whether stop‑work orders generally require pre‑deprivation hearings because no protected interest existed here.
• Temporary regulatory taking: A government restriction that temporarily limits use of property and may require compensation under the Fifth Amendment if it goes “too far,” assessed under Penn Central factors. Threshold requirement: a cognizable property interest.
• Penn Central factors: A balancing test considering economic impact, interference with reasonable investment‑backed expectations, and the character of the government action. The Sixth Circuit did not reach these factors because the Harts lacked a property interest.
• Equitable estoppel against government: A rare doctrine preventing a government from enforcing a law when fairness overwhelmingly favors the private party who relied on government action. In Michigan zoning, it applies only in “exceptional” circumstances.
• Monell liability: Municipal liability under 42 U.S.C. § 1983 arises only when a municipal policy or custom causes a constitutional violation. No underlying violation means no municipal liability.
• Automatic stay pending appeal (zoning): Many ordinances mandate that when a permit is appealed to a zoning board of appeals, all related proceedings are stayed. Here, that provision triggered the stop‑work order.

Conclusion

The Sixth Circuit’s decision reinforces a straightforward but decisive threshold principle: a federal procedural due process or takings claim premised on a building permit cannot proceed unless the permit created a cognizable property interest under state law. In Michigan, that requires a validly issued permit; reliance on a permit issued contrary to ordinance—even coupled with substantial construction—does not create a vested right. Because the Harts’ initial permit lacked required, compliant scaled drawings, it was invalid; thus, the Township’s stop‑work order (mandated by an automatic appeal stay) did not deprive the Harts of a constitutionally protected property interest and did not effect a taking. The court declined to opine on whether pre‑deprivation hearings are generally required for stop‑work orders, leaving that question for another day when a protected interest is present.

Practically, the case counsels meticulous compliance with local application requirements and careful municipal adherence to review procedures. For litigants, it underscores that the first—and often dispositive—step in federal constitutional challenges to land‑use actions is to establish, under state law, a valid property interest. Without it, the constitutional claims never get out of the gate.