NOT RECOMMENDED FOR PUBLICATION File Name: 25a0416n.06
Case No. 24-2124
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Sep 08, 2025 ) JAMES HART; KRISTIN HART, KELLY L. STEPHENS, Clerk ) Plaintiffs-Appellants, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN TOWNSHIP OF PRESQUE ISLE, MICHIGAN, ) DISTRICT OF MICHIGAN Defendant-Appellee. ) ) OPINION )
Before: BOGGS, McKEAGUE, and MATHIS, Circuit Judges.
McKEAGUE, Circuit Judge. In 2020, James and Kristin Hart began constructing a house
in Presque Isle Township, along the shores of Lake Huron. One year later, Presque Isle Zoning
Administrator Stephen Lang issued a stop-work order after neighbors claimed that the Harts’
construction violated the Township’s zoning ordinances. The neighbors sought review of the
Harts’ zoning permit with the Township’s Zoning Board of Appeals. After a hearing, the Zoning
Board revoked the Harts’ permit because the Harts had not included appropriate scaled drawings
in their permit application, as required by the Township’s zoning ordinances. With the Township’s
help, the Harts eventually obtained a new permit and completed construction of their house. But
because the permit ordeal delayed construction for several weeks, the Harts’ builder left the job,
and the Harts were unable to resume construction for another year. The Harts filed this lawsuit,
alleging that the Township (1) violated their procedural-due-process rights by issuing the stop- No. 24-2124, Hart, et al. v. Twp. of Presque Isle, Mich.
work order without providing notice or a pre-deprivation hearing, and (2) committed a taking
without compensation, in violation of the Fifth Amendment. The district court granted the
Township summary judgment on both claims. We AFFIRM.
I.
In 2016, the Harts purchased a 0.65-acre plat adjacent to Lake Huron in Presque Isle
Township, Michigan. Four years later, the Harts applied for a permit to construct a 2,500-square-
foot home on the plat. Presque Isle zoning ordinances specify “that every application for a zoning
permit for . . . construction” be accompanied by “dimensioned plats or plans drawn to scale[.]”
Presque Isle Zoning Ordinance Article 26 § 4, R. 21-26 at PageID 499–500. Accordingly, the Harts
attached a drawing to their application. But the drawing lacked several components required by
the zoning ordinances, such as elevations and topographical features. Moreover, the ordinances
also make it “illegal for the Zoning Administrator to issue any permits . . . until he has inspected
such plans in detail, and finds them to be in conformance” with the ordinances. Id. § 3, R. 21-26
at PageID 499. Notwithstanding the application’s deficiencies, Lang issued the permit in July
2020. The Harts commenced construction soon after.
At the beginning of the construction process, the Harts brought in many truckloads of fill-
dirt and used them to raise the level of their lot, which resulted in elevating the level of their house
in violation of the ordinance maximum height of 30 feet. The Harts also brought in dirt,
cobblestones, and boulders to extend their lakefront footage and to build a pier with the rock and
dirt. This resulted in changing the shoreline and the high-tide mark. The Harts’ neighbors, Michael
Beaulac and Mary Wolfe, who lived on the adjacent property, were upset and alleged that the Harts
had cut down some of their trees and bulldozed a significant portion of the fill-dirt on to their lot.
Beginning in August 2020 the neighbors repeatedly asked the Harts to remove the dirt and hired a
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construction company to erect a fence but were told that such a fence could not withstand the
pressure and instability of the fill from the Hart property. Meanwhile, the Harts did nothing, and
the neighbors escalated the matter to the Township. The Harts eventually removed the dirt in early
May 2021, after Lang issued a mid-May ultimatum.
But the neighbors were not satisfied.1 In July 2021, they filed an appeal with the Presque
Isle Zoning Board of Appeals, seeking review of Lang’s decision to grant the Harts’ permit. The
neighbors stated that even though the Harts had applied for a permit to construct a 2,500-square-
foot house, the Harts’ three-story building comprised 12,000 square feet—several times larger than
what was permitted. They alleged that the Harts’ house exceeded the zoning ordinances’ setback
requirements and limitations on building height and number of stories. They further claimed that
the Harts failed to attach detailed plans with their permit application. They asked the Zoning Board
to ensure that the Harts’ building complied with the zoning ordinances.
On July 13, 2021, pursuant to pre-existing zoning ordinances—which required a stay of all
proceedings that were the subject of an appeal—Lang issued a stop-work order requiring the Harts
to cease construction of their house.2 Lang did not provide the Harts with any notice or conduct a
hearing before issuing the order.
One month later, the Zoning Board held a special public hearing on the Harts’ permit. The
neighbors and other members of the public commented on how the Harts’ construction allegedly
violated the zoning ordinances’ height and setback requirements, caused visual pollution, and
destroyed the natural beauty of the area. Lang testified that the house violated the zoning
1 In June 2021, the neighbors sued the Harts in state court for trespass, nuisance, and breach of restrictive covenants, claiming that the Harts were constructing the house without a valid permit. The case was dismissed after a three-day bench trial. 2 Lang allowed the Harts to do limited work on the property to make it weathertight.
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ordinances by exceeding the thirty-foot height limit. The Harts, represented by counsel, were
allowed to present arguments. After deliberations, the Board revoked the Harts’ permit because
the Harts failed to include compliant scaled drawings with their permit application.3 The Board
noted that the Harts would be filing for a new permit.
Lang worked closely with the Harts to reissue a permit. Several days after the Board
vacated the Harts’ permit, they applied for a new permit; Lang responded that the renewed
application did not have the required scaled drawings. The Harts submitted another application
with the requisite drawings, and Lang issued a permit soon after.
In sum, the stop-work order was in effect for approximately seventy days. But because of
the interruption and uncertainty caused by the order, the Harts’ builder abandoned the project and
refused to return. The Harts were unable to secure a new builder and continue construction of their
home until January 2023.
The Harts sued the Township, alleging two claims of Monell liability under 42 U.S.C.
§ 1983. First, they claimed that the Township deprived them of procedural due process when it
issued the stop-work order without prior notice or a pre-deprivation hearing. Second, they alleged
that the Township violated the Fifth Amendment by effectuating a temporary taking for the
duration of the stop-work order.
After discovery, the Harts moved for summary judgment on their procedural-due-process
claim. The Township moved for summary judgment on both the due process claim and the takings
claim. The court held that the Harts’ procedural-due process-claim failed on several grounds: First,
3 After the Board vacated the Harts’ permit but before they received a new permit, Lang received a complaint regarding work being done on the Harts’ property. Lang visited the property and found that the Harts were having a pump and pressure tank installed. Lang issued the Harts a citation for violating the stop-work order.
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under Michigan law, the Harts did not have a vested right to construct their house because Lang
had issued their permit contrary to the zoning ordinances. Next, the court held that even if the
Harts had a vested right, the Township did not deprive them of that right because the stop-work
order was only a temporary interference. And even then, any deprivation was mitigated by the fact
that the Harts “admitted that they continued to work on their property for weeks” in violation of
the stop-work order. R. 37 at PageID 949. Finally, the court explained that even if the Township
deprived the Harts of a vested right to construct their house, the Township afforded them sufficient
post-deprivation process through the Zoning Board hearing where the Harts were represented by
counsel.
On the takings claim, the court stated that the factors set out in Penn Central Transp. Co.
v. New York City, 438 U.S. 104, 124 (1978), used to evaluate temporary regulatory takings weighed
against the Harts. First, the Harts failed to identify how the loss of building time caused by the
stop-work order had an economic impact on them. Next, the Harts also failed to show how the
stop-work order interfered with any investment-backed expectations. Finally, the court held that
the stop-work order was not excessively intrusive because, among other reasons, its duration was
not long enough to constitute a Fifth Amendment taking.
Accordingly, the district court granted summary judgment to the Township on both the
procedural-due-process and takings claims. This appeal followed.
II.
We review a grant of summary judgment de novo. Puskas v. Delaware County, 56 F.4th
1088, 1093 (6th Cir. 2023). Summary judgment is appropriate when “the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). We view all evidence and draw all reasonable inferences in the light
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most favorable to the nonmoving party. Palma v. Johns, 27 F.4th 419, 427 (6th Cir. 2022). “We
affirm a grant of summary judgment where the record as a whole could not lead a rational trier of
fact to find for the nonmoving party.” Ondo v. City of Cleveland, 795 F.3d 597, 603 (6th Cir. 2015)
(cleaned up).
III.
On appeal, the Harts claim that the district court erred by granting summary judgment to
the Township. A plaintiff may hold a municipality “liable for the constitutional violations of their
employees only where the municipality’s policy or custom led to the violation.” Robertson v.
Lucas, 753 F.3d 606, 622 (6th Cir. 2014) (citing Monell v. Dept. of Soc. Serv. of City of N.Y., 436
U.S. 658, 694–95 (1978)). However, there can be no liability without an underlying constitutional
violation. Id. Therefore, the Harts must show that the Township violated their constitutional rights
before they can establish Monell liability. Accordingly, we address whether the Township violated
the Harts’ Fourteenth Amendment right to procedural due process and whether it committed a Fifth
Amendment taking, before tackling the Harts’ Monell claims.
A.
Procedural Due Process. The Harts ask this court to hold that, barring an emergency or
other exigent circumstances, the Due Process Clause of the Constitution requires a township to
hold a hearing before it issues a stop-work order. Oral Arg. at 25:30. But before invoking the Due
Process Clause, the Harts must show that they had a valid property interest. They have not.
The Fourteenth Amendment’s Due Process Clause provides that “[n]o state
shall . . . deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const.
amend XIV. The Due Process Clause has both procedural and substantive components. EJS Props.,
LLC v. City of Toledo, 698 F.3d 845, 855 (6th Cir. 2012). Procedural due process requires the
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government to provide “fair procedure” before depriving someone of life, liberty, or property. Id.
(quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)). To establish a procedural-
due-process claim, parties must show that (1) they have “a life, liberty, or property interest
requiring protection under the Due Process Clause;” (2) the government “[deprived them] of that
interest;” and (3) the government carried out the deprivation “without adequate process.” Fields v.
Henry County, 701 F.3d 180, 185 (6th Cir. 2012).
“Property interests are not created by the Constitution.” Peterson v. Johnson, 87 F.4th 833,
836 (6th Cir. 2023) (cleaned up); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985).
Rather, “whether a person has a property interest is traditionally a question of state law.” EJS
Props., 698 F.3d at 855 (internal quotation marks omitted). We must therefore turn to Michigan
law to determine whether the Harts had a property interest.
As a protected property interest, the Harts claim that they acquired a “vested right” because
they relied on the permit and completed significant construction on their house before Lang issued
the stop-work order. Appellant Br. 17–18. “A vested right” is “an interest that the government is
compelled to recognize and protect of which the holder could not be deprived without injustice.”
City of Detroit v. Walker, 520 N.W.2d 135, 143 (Mich. 1994) (citing Cusick v. Feldpausch, 243
N.W. 226 (Mich. 1932)). The existence of such a right is determined on a case-by-case basis. Id.
Although the issuance of a permit itself does not create a vested right, Dingeman Advert., Inc. v.
Algoma Township, 223 N.W.2d 689, 691 (Mich. 1975), it is still an “important factor in procuring”
such a right, Heath Township v. Sall, 502 N.W.2d 627, 633 (Mich. 1993).
“[T]he test in each case as to whether a holder of a permit has acquired vested rights
thereunder is, not whether he has spent much or little reliance upon it, but rather whether there has
been any tangible change in the land itself by excavation and construction.” City of Lansing v.
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Dawley, 225 N.W. 500, 501 (Mich. 1929). In Dawley, the defendant acquired a permit to construct
a commercial building. Id. at 500. However, before he could begin construction, the city passed a
zoning ordinance that prohibited the construction of non-residential buildings in the area at issue.
Id. The defendant—who had already commissioned a survey and developed construction plans for
a commercial building—argued that he acquired a vested right because of his “substantial
expenditures of time and money.” Id. The Michigan Supreme Court disagreed, stating that the
defendant failed to do any work of “substantial character” and the “preliminary work” of ordering
plans and a survey “was not sufficient to create a vested right to erect the building.” Id. at 500–01.
The Michigan Supreme Court has repeatedly used Dawley’s “substantial character” test to
determine whether a party acquired a vested right in the use of property. See, e.g., Sandenburgh v.
Michigamme Oil Co., 228 N.W. 707, 708 (Mich. 1930) (defendant had a vested right to construct
a gas station because he purchased materials and began excavation while relying on a valid permit
that was later revoked); Bloomfield Township v. Beardslee, 84 N.W.2d 537 (Mich. 1957);
Franchise Realty Interstate Corp. v. City of Detroit, 118 N.W.2d 258 (Mich. 1962); DeMull v. City
of Lowell, 118 N.W.2d 232 (Mich. 1962); Expert Treating Steel Co. v. City of Clawson, 118
N.W.2d 815 (Mich. 1962); Detroit Edison Co. v. City of Wixom, 172 N.W.2d 382 (Mich. 1969).
Eventually, the Michigan Supreme Court held that in order to have a vested right in the use
of property, a party must have a lawful permit. Dingeman, 223 N.W.2d at 691. In Dingeman, the
plaintiff obtained a lawful permit from the township to build a billboard. Id. at 690. But several
months later, the township adopted a zoning ordinance that prohibited the construction of
billboards. Id. When analyzing the plaintiff’s vested-right claim, the court acknowledged that the
existence of “a lawful permit” was a “crucial fact” considered in the Dawley line of cases. Id. at
691. The court emphasized that when “a township issues a valid permit to an applicant, that
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applicant has every reason and right to rely thereon in his business dealings” and that it “fully
supports” analyzing the presence of a valid permit. Id. The court ultimately concluded that the
plaintiff’s reliance on the valid permit and the “substantial character of the preparatory
construction work completed” established a vested right to complete the construction of the
billboard. Id. at 691–92.
But does a person have a vested right if they rely on a permit or license issued in violation
of existing laws? Generally, they do not. Fass v. City of Highland Park, 39 N.W.2d 336, 341
(Mich. 1949). In Fass, the plaintiffs sought to open a facility to sell both dressed and live poultry.
Id. at 337. The city issued a building permit, even though there was a zoning ordinance in effect
that prohibited the sale of live poultry on the premises. Id. at 339. For three consecutive years, the
city also issued plaintiffs a license to sell live poultry on their property. Id. at 337. When plaintiffs
sought to renew this license for a fourth consecutive year, the city declined, citing the zoning
ordinance. Id. The plaintiffs sought to estop the city from enforcing the ordinance against them.
Id. But the court denied the plaintiffs’ estoppel claim, explaining that the permit had no “legal
status” because it was issued in contravention of existing zoning ordinances. Id. As a result, the
permit had no legal authority and “plaintiffs acquired no vested right to use their property for a
purpose forbidden by law.” Id. at 341; see also Cook v. Bandeen, 96 N.W.2d 743, 746 (Mich.
1959) (no vested right to expand trailer park because the permit was issued based on an erroneous
interpretation of zoning ordinances).
This general rule laid out in Fass has a narrow exception. Under certain circumstances, a
governing body may be estopped from enforcing a zoning regulation when it had issued a permit
that was later found to be in violation of a zoning law. Pittsfield Township v. Malcolm, 134 N.W.2d
166, 172–73 (Mich. 1965). In Pittsfield, the defendants obtained a building permit to construct and
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operate an animal kennel. Id. at 167. After operating the kennel for a little over ten months, the
township sought to enjoin the defendants from operating the kennel because the zoning
ordinances—which were in effect when the township issued the building permit—prohibited
animal kennels. Id. Nevertheless, the court estopped the township from enforcing the ordinance.
Id. at 172. Given that the defendants had expended a significant amount of money to construct a
kennel that was of “otherwise doubtful utility,” and the township did not enforce the zoning
ordinance until several months after the “construction, occupancy and operation” of the kennel,
the court concluded that “equity and good conscience” favored the defendants. Id. at 173.
To summarize, under Dawley and its progeny, a party obtains a vested right in the use of
property if that party relies on a lawful permit and conducts work of substantial character on the
property. However, a party does not have a vested right if the permit was issued in violation of
local zoning ordinances. And even if the party lacks a vested right, there may be exceptional
circumstances in which the governing body should be estopped from enforcing those ordinances
based on “equity and good conscience.” Id.
In this case, the Harts did not have a vested right in constructing their house. The Harts did
not rely on a valid permit, as their application did not comply with the zoning ordinances, which
require applicants to submit scaled drawings for “[a]ny new construction . . . of a single-
family . . . dwelling[.]” Article 17 § 2(B), R. 21-26 at PageID 413. The Zoning Board found that
the drawings attached to the Harts’ application were missing the location and size of the structures
proposed to be built, natural features existing on the site, a proposed method of sewer and sanitary
services, and a proposed topography—all of which were required by the zoning ordinances. Lang
admitted that he “made a mistake” by overlooking the drawing’s deficiencies and issued the permit
“[i]n a hurry.” Lang Dep., R. 21-25 at PageID 337. Without a valid permit, the Harts did not acquire
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a vested right. See Fass, 39 N.W.2d at 341. And without a vested right, the Harts do not have a
property interest under the Fourteenth Amendment. Cf. 600 Marshall Ent. Concepts, LLC v. City
of Memphis, 705 F.3d 576, 588 (6th Cir. 2013) (finding that there is no legitimate property interest
when a permit was issued erroneously).
The Harts’ reliance on Pittsfield is misguided. As a threshold matter, Pittsfield does not
discuss whether the property owners acquired a vested right in the property; it merely stands for
the proposition that under exceptional circumstances, principles of equity may allow a city to be
estopped from enforcing zoning ordinances. There, defendants constructed a highly specialized
animal kennel that could not be adopted to other uses if the township enforced the zoning
ordinance. In other words, the defendants would have been permanently deprived of all use of a
facility on which they expended substantial resources. By contrast, the Harts were constructing a
home while relying on a permit that was issued without a proper evaluation of accurate drawings.
The Harts were not deprived of all beneficial use of their property (as in Pittsfield). In fact, they
now enjoy the full use of their house and property, albeit at some additional cost and
inconvenience. Issuing a stop-work order that temporarily halted construction while the Township
ensured compliance with existing ordinances did not create circumstances “so exceptional” as to
put this case in Pittsfield’s ambit. 134 N.W.2d at 172.
In sum, the Harts did not have a valid permit because they failed to include the requisite
drawings with their permit application. Without a valid permit, the Harts never had a vested right,
and therefore did not have a property interest of which they could not be deprived without due
process. Without a protected property interest, the Harts’ procedural-due-process claim fails. See
Dodd v. City of Chattanooga, TN, 846 F.3d 180, 187 (6th Cir. 2017) (holding that plaintiff’s
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procedural-due-process and takings claim failed because he did not have a protected property
interest).
B.
Fifth Amendment Takings. The Harts second claim is that the Township effectuated a
temporary taking when it issued the stop-work order because the order interfered with the Harts’
vested right to construct a house on their property pursuant to the permit. Appellant Br. 29–32.
The Fifth Amendment’s Takings Clause, as incorporated against the states by the Fourteenth
Amendment, provides that “private property” shall not “be taken for public use, without just
compensation.” U.S. Const. amend V. To evaluate a takings claim, we follow a two-tier approach:
First, “the court must examine whether the claimant has established a cognizable property
interest[,]” and second, if the court finds that a “property interest is implicated,” then it “must
consider whether a taking occurred.” Coal. for Gov’t. Procurement v. Fed. Prison Indus., Inc., 365
F.3d 435, 481 (6th Cir. 2004) (internal quotation marks omitted).
To determine whether the Harts had a property interest, a court must conduct “a searching
inquiry into background principles of the State’s law of property and nuisance already place[d] on
land ownership” and consider “objective factors, such as the nature of the land use proscribed.”
Andrews v. City of Mentor, 11 F.4th 462, 472 (6th Cir. 2021) (alteration in original) (internal
quotation marks and citations omitted). “[T]he deprivation of the right to use property for a
particular purpose is not a ‘taking’ if that right was never a part of the titleholder’s bundle of rights
to begin with.” Id. (citing Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027 (1992)). In other
words, “no takings claim can proceed without a valid property interest.” Id. at 469 (citing Wyatt v.
United States, 271 F.3d 1090, 1097 (Fed. Cir. 2001)).
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The Harts’ takings claim fails at this threshold inquiry. As explained above, the Harts did
not acquire a vested right because their permit was issued in violation of existing zoning
ordinances. See Fass, 39 N.W.2d at 341. Without a vested right, there was no cognizable property
interest for the Township to take. Accordingly, the Harts’ takings claim necessarily fails, and we
need not determine whether a taking occurred based on the Penn Central factors. Puckett v.
Lexington-Fayette Urb. Cnty. Govt., 833 F.3d 590, 609–10 (6th Cir. 2016) (holding that the
plaintiffs’ takings claim was foreclosed because they lacked a property right to a specific cost of
living adjustment formula for calculating retirement pensions); Raceway Park, Inc. v. Ohio, 356
F.3d 677, 683 (6th Cir. 2004) (stating that “there is no taking if there is no private property in the
first place”).
The Harts primarily rely on Kalkman v. City of Village of Douglas, to advance their takings
claim. No. 306051, 2012 WL 4215834 (Mich. Ct. App. Sept. 20, 2012) (per curiam). There, the
Michigan Court of Appeals found that the City committed a Fifth Amendment taking when it
ordered Kalkman to stop construction of a residential home because he purportedly violated front-
yard-setback ordinances. Id. at *1, *5. But Kalkman is easily distinguishable. Kalkman had a valid
permit that complied with existing zoning ordinances, and the City issued the order based on an
erroneous interpretation of its own zoning ordinances. Id. at *2–3. Accordingly, Kalkman had a
vested property right. Id. at *3. By contrast, the Harts never possessed a valid permit, and thus
never had a vested property right.
* * *
In sum, because the Harts did not have a vested right in the construction of their house,
they failed to establish that the Township violated their Fourteenth Amendment right to procedural
due process or that it committed a Fifth Amendment taking. Dodd, 846 F.3d at 187 (holding that
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plaintiff’s procedural-due-process and takings claim failed because he did not have a protected
property interest). And because the Harts did not establish that the Township violated their
constitutional rights, their Monell claims cannot succeed. See 600 Marshall Ent. Concepts, 705
F.3d at 588.
IV.
For the foregoing reasons, we AFFIRM the district court’s judgment.
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