|| DAIRY QUEEN GETS ITS CUT IN DENIAL OF DUE PROCESS|
DAIRY QUEEN GETS GETS ITS CUT
DAIRY QUEEN GETS ITS CUT
August 25, 2005
COURT AFFIRMS DENIAL OF DUE PROCESS CLAIM
University of Missouri, Kansas City
Patrick A. Randolph, Jr*
CONSTITUTIONAL LAW; DUE PROCESS; NOTICE: City's decision to eliminate curb cuts
and deny access to restaurant's "drive through" lane is a taking of
property and, even though it may be a valid police power act, may not occur
without prior notice and hearing. Consequently, actions so taken without
hearing may be permanently enjoined.
Warren v. City of Athens, Ohio, 411 F. 3d 697 (6th Cir. 2005)
Plaintiffs had operated a Dairy Queen in for several decades at the same
location. In the 1990's, it became apparent that they would be unable to
compete in the fast food business without a "drive through" lane.
But the only logical place for such an installation was in an area of their
property that abutted a "dead end" street with eighteen homes.
(The Dairy Queen was on the corner, fronting on a four lane former highway.)
For some time, there was uncertainty as to whether the City owned the property
where the plaintiffs planned to locate their "drive through," but
ultimately it was determined that the "drive through" could be located
on Plaintiffs' land, so they built it.
Over the next few years, neighbors in the "dead end" street became
more and more strident about the impact of the "drive through" on
their convenience and safety. Ultimately, in response to this, City put
temporary barriers in the curb cuts for Plaintiff's "drive through"
and announced plans to close off the curb cuts entirely, thus eliminating access
to the street from the "drive through." Plaintiff had access to
its property from the other side of its lot, off the former highway.
Plaintiffs alleged that the decision to cut off the drive through was a breach
of Substantive Due Process and the Equal Protection Clause, as it was made with
no logical foundation, no factual inquiry, and solely in response to political
pressure from neighbors. Further, the alleged that the action was also a
breach of Procedural Due Process, since their right of access to the abutting
street was a property right and they had been given been no hearing on the
City's proposed actions before it took that right away.
The lower court bought all of Plaintiffs' arguments, and issued a permanent
In this case, the Sixth Circuit affirmed the granting of the permanent
injunction, but narrows the basis of the decision to the Procedural Due Process
The court noted that there was no claim that this was an uncompensated
regulatory taking, or physical taking, in breach of the Fifth Amendment takings
provisions. Rather, the Plaintiffs' substantive due process claim was a
Kelo type argument that their property - the access - was taking for the private
benefit of their neighbors. It relied upon Montgomery v. Carter County, 226 F.
3d 759, 766, 68 (6th Cir. 2000), where the court set aside a declaration of the
plaintiff's driveway as a county road when it concluded that the sole basis for
the declaration was to effect mail delivery for a neighbor. Of course, the
fundamental predicate was that there was no legitimate justification for the
closure of the curb cuts rooted in the police power - such as an interest in
The Equal Protection Clause claim also was based upon the notion that there was
no rational basis for the decision to close the curb cuts here when the City had
failed to do so in many other substantially similar arrangements (Plaintiffs'
competitors locations) throughout the City.
The court also declined to conclude that if the regulation in question were in
fact a regulatory taking, it could be held void, rather than remedied by
compensation. Although, citing cases, the court developed a bit the notion
that the possibility that a regulatory taking could be viewed as void, rather
than simply compensable as an exercise of inverse condemnation, the court
refused to consider the issue in this case.
The court struck down most of the Substantive Due Process claims and the Equal
Protection Clause on the same basis - it concluded that the basis for the City's
decision, although skimpy and suspect, was sufficient to meet the
"rationale basis" test by which such decisions are to be measured.
(Not much surprise here. Courts are unlikely to get into the business of
But the analysis of the Procedural Due Process claim bore more fruit for the
plaintiffs. The court held that were the burden of a traffic
restriction was borne solely by an individual's property, it could constitute a
taking of property even when it did not result in a total denial of access to
The plaintiffs in this case did have prior notice of the City's action in
closing the curbs, but were not given a predeprivation hearing. They
alleged that this was a "random and unauthorized act" in contravention
of their Due Process rights. Although, in emergency circumstances, a
public agency can have a postdeprivation hearing after a taking has been carried
out, the court held that there was demonstrably no real emergency here.
But now comes the really amazing part - the remedy. The court upheld a
permanent injunction, on the grounds that the plaintiffs' had been denied a
Constitutional right and that any remedy other than injunction would lead to
their economic ruin (the Dairy Queen was not viable without a drive through, and
this was the only conceivable location for it), and damages for the destruction
of their business would have relied upon proof of future profits, which are
Comment 1: Permanent injunction???!!! Does this mean (as the editor suspects it
does) that the City can never close that curb, even if it has a new hearing and
makes new findings on traffic safety concerns? This strikes the editor as
patently absurd, and hardly a appropriate remedy for the denial of a hearing.
It would make sense to enjoin the City from closing the curb without a prior
hearing, of course, but that virtually goes without saying. Note that the
trial court judge had greater justification for the permanent injunction that
judge issued because of the findings that substantive due process and equal
protection rights were implicated. But to permanently enjoin a public body
from taking police power actions in the future because it has failed to grant a
preliminary hearing in the past? Verrrrry interesting. (But
Comment 2: In a particularly fuzzy part of the opinion, the court
discussed where the curb closure here was not the result of a "random
act" but rather part of an "established state procedure."
It suggested that if there was an established procedure to make decisions of the
type in question without prior hearing, such procedure would be flawed to the
extent that it resulted in regulatory decisions that were felt entirely by a
single parcel. From the plaintiffs' standpoint, it doesn't seem to
matter how the court characterized the City's action; the action was
unconstitutional either way. But the editor found the discussion of how
the court in fact characterized the action somewhat unsatisfying.
*DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law. Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.
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