Livonia Response To Schostak

Case 2:22-cv-12734-LJM-EAS ECF No. 9, PageID.
407 Filed 01/18/23 Page 1 of 32
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
MIDDLEBELT PLYMOUTH
VENTURE LLC, a Michigan limited
liability company,
Case No. 2:22-cv-12734
Plaintiff, HON. LAURIE J. MICHELSON
MAG. ELIZABETH A. STAFFORD
v
CITY OF LIVONIA, a Michigan

municipal corporation,
Defendant.
Michael A. Cox (P43039) Paul A. Bernier, City Atty. (P39119)

Attorney for Plaintiff Michael E. Fisher (P37037)
17430 Laurel Park Dr. N., Ste 120E Eric S. Goldstein, Asst. City Atty. (P45842)
Livonia, Michigan 48152 Attorneys for Defendant
(734-591-4002 33000 Civic Center Drive
mc@mikecoxlaw.com Livonia, Michigan 48154
Phone: (734) 466-2520
mfisher@livonia.gov
ANSWER TO COMPLAINT ,
RELIANCE UPON JURY DEMAND,
AND AFFIRMATIVE DEFENSES
NOW COMES Defendant, by and through its attorneys, Paul A. Bernier, City
Attorney, Michael E. Fisher, Chief Assistant City Attorney, and Eric S. Goldstein,
Assistant City Attorney, and in answer to Plaintiff’s Complaint, state as follows:
I. NATURE OF THE ACTIONS
Plaintiff’s narrative portion does not conform to the requirements of Fed R Civ
P 10(b). Per general review, the narrative seems to comport to the balance of the
Case 2:22-cv-12734-LJM-EAS ECF No. 9, PageID.408 Filed 01/18/23 Page 2 of 32
Complaint drawn in conformity with Fed R Civ P 10(b). Accordingly, Defendant
will reserve its substantive response to those number paragraphs as required. To the
extent Plaintiff relies on an assertion in this narrative that is not fulfilled in the
conforming paragraphs, Defendant objects to and denies those assertions.
II. JURISDICTION AND VENUE
1. Reserving the issues of ripeness, viability of Plaintiff’s claims, and the
relevance of treaties to the instant case, Defendant generally admits to jurisdiction.
2. Reserving all legal issues and in particular, the issue of the viability of
Plaintiff’s claims, Defendant generally admits.
3. Defendant denies the allegations in Paragraph 3 for the reason they are
untrue in the form and fashion stated.
4. Defendant admits the allegations in Paragraph 4.
III. PARTIES
6. Defendant neither admits nor denies the allegations in Paragraph 6, and
leaves Plaintiff to its proofs.
7. Defendant generally admits the allegation in Paragraph 7, but denies
any officials committed any wrongdoing while performing their functions related to
the issues raised in the Complaint.
8. Defendant denies the allegation in Paragraph 8 for the reason they are

2
IV. FACTUAL ALLEGATIONS
9. Defendant neither admits nor denies the allegations in Paragraph 9, and
leaves Plaintiff to its proofs.
10. Defendant neither admits nor denies the allegations in Paragraph 10,
and leaves Plaintiff to its proofs.

3
22. Defendant generally admits the allegations in Paragraph 22 and objects
to Plaintiff purportedly quoting from a document without citing where the language
is drawn from within that document and without referencing its context.
23. Defendant generally admits the allegations in Paragraph 23 but denies
that the berm has been there for decades for the reason that it is untrue.
24. Defendant denies the asserted zoning designation set forth in Paragraph
24 relative to the described land for the reason it is untrue. The balance of the
allegations are admitted upon information and belief.
25. Defendant denies the asserted zoning designation set forth in Paragraph
25 relative to the described land for the reason it is untrue and incomplete in the form
and fashion stated. Further, upon information and belief there are more than two
“used car lots”. The balance of the allegations are admitted upon information and
belief.

4
39. Defendant admits that one member of the Master Plan Steering
Committee was current Mayor Maureen Miller-Brosnan. The balance of the
allegations are too imprecise and so Defendant neither admits nor denies the
allegations and Plaintiff is left to its proofs.

5
41. Defendant objects to Paragraph 41 as it is not drawn in conformity with
Fed R Civ P 10(b), mixing numerous factual assertions with a multi-faceted
narrative, cherry picking items to present conclusions inconsistent with their context.
Accordingly, without waiving the objection, and reserving the right to provide a
detailed answer should the Complaint be amended to conform with the rules,
Defendant denies the allegations in Paragraph 41 for the reason they are untrue in
the form and fashion stated.
untrue in the form and fashion stated. In further response, what Plaintiff describes
in Paragraph 43 is understood to be a Mixed Development Center.
untrue in the form and fashion stated. In further response, what Plaintiff describes
in Paragraph 44 are understood to be Special Planning Areas.
45. Defendants admits the allegations in Paragraph 45.
48. Defendant admits the allegations with the exception of the parenthetical
“(i.e., Wonderland Flats)” as Wonderland Flats is not classified as a Planned General

6
Development. That aspect is denied for the reason it is untrue in the form and fashion
stated.
58. Again, Defendant does not deny the language of the cited material.
Defendant denies the parenthetical of “(such as the proposed Wonderland Flats)” as
the Wonderland Flats petitions were not submitted under the Form-Based
Development Option of Article V.

7
62. Defendant admits the allegations in Paragraph 62
72. The City does not deny that a public hearing was held by the Planning
Commission, but as to the procedural details and the substance of public comment
topics, the City neither admits nor denies the same, leaving Plaintiff to its proofs.
8
78. Defendant agrees that revised plans were received on June 25, 2021.
The contents relative to prior submissions evolved in various ways including
increasing overall density and boosting the number of units from 192 to 201. As
such Defendant neither admits nor denies the incomplete allegations, leaving
Plaintiff to its proofs.
80. Defendant denies the implied allegation that there were no violated
density limits as the density proposed by Plaintiff exceeded Ordinance #543 and
further that such information was presented to the Planning Commission. As to the
9
balance of the allegations in Paragraph 80, they are neither admitted nor denied and
Plaintiff is left to its proofs.
84. To the extent Plaintiff is alleging a right to develop multi-family
housing as a permitted use in the City’s commercial zoning district, the allegation is
denied as untrue in the form and fashion stated.
87. To the extent Plaintiff is alleging it had a right to develop multi-family
housing as a permitted use within that zoning district, the allegations are denied for
the reason they are untrue. The balance of the allegations are neither admitted nor
denied and Plaintiff is left to its proofs.

10
93. Defendant neither admits nor denies the assertion that building
footprints and site layout were “deliberately patterned” after those of the other
designated apartments, but to the extent such is intended to imply the architectural
details, including exterior building materials, finishes, balcony designs, hallway
widths, garage/carports and “bump outs” were similar, such is denied for the reason
that it is untrue in the form and fashion stated.
11
97. Defendant denies that it is “impermissible” for the Planning
Commission to raise aesthetics during the review process for the reason that such is
untrue.
98. Defendant denies the foundation of the allegations as the Wonderland
Village footprint is not codified as a special area for mixed development use in
Section 5.01(1)(B).
100. Defendant references and re-asserts its objection to Plaintiff’s failure to
comply with Fed R Civ P 10(b). Without waiving the objection, Defendant neither
admits nor denies the allegations in Paragraph 100, leaving Plaintiff to its proofs,
and reserving the right to respond to component parts of Paragraph 100 if properly
set forth in compliance with Fed R Civ P 10(b).
and leaves Plaintiff to its proofs. In additional response, Defendant denies the
implication that the Planning Commission was obligated to “challenge” Mr.
Ponton’s “experience or expertise” or find those concerns waived.
102. The allegations in Paragraph 102 are denied for the reason they are
untrue in the form and fashion stated. To illustrate, the alleged assertions regarding
compliance with C-2, NM2, and/or the ordinance were not issues under
consideration at the Planning Commission meeting of October 19, 2021. Rather the
12
issue was whether NM2 District was appropriate for the site. This did not include
consideration of whether the Application complied.
untrue in the form and fashion stated. Proposed resolutions approving and denying
resolutions are prepared by staff prior to the meetings.
and leaves Plaintiff to its proofs. In additional response, concerns were affirmatively
raised regarding Plaintiff’s presentation. Defendant rejects the implication that City
Council was required to “challenge” the “experience and design expertise” of the
presenters or find those concerns waived.

13
untrue in the form and fashion stated. The “vote” was not adjourned for the reason
that this was a public hearing as opposed to a Regular Meeting. Resolutions put
forth at a public hearing are considered at the next Regular Meeting, which in this
case was March 23, 2022.
112. Defendant references and re-asserts its objection to Plaintiff’s failure to
comply with Fed R Civ P 10(b). Without waiving the objection, Defendant admits,
denies and neither admits nor denies components of the allegations in Paragraph 112.
Defendant denies that any bike paths were added to the plan for the reason it is
untrue. Defendant further points out that many additional pedestrian paths were
projected to be installed in the future by those other than the Plaintiff.
114. Defendant denies the allegations in Paragraph 114 for the reason they
are untrue in the form and fashion stated. In further response, the City considered
the 15 page submission to be “New Data”, not a “Fourth Wonderland Flats
Application.”
115. Defendant denies this was a “Fourth Application” for the reason it is
untrue in the form and fashion stated. The balance of the allegations in Paragraph
115 are admitted.

14
117. Defendant denies this was an adjourned vote. See Answer Paragraph
111. Defendant admits that the matter was referred to the Law Department to
prepare an Ordinance which if passed would amend the Ordinance. The balance of
the allegations are neither admitted nor denied.
118. Defendant denies the allegation in Paragraph 118 for the reason they
are untrue in the form and fashion stated.
are untrue in the form and fashion stated. In further response, the Planning Director
shared the reports from various departments. The Planning Director did not offer a
summary or commentary regarding the contents of those departmental reports.
125. With regard to the allegation that the referenced traffic expert relied on
guidelines and methodologies published by the City of Livonia, such allegations are
15
denied for the reason they are untrue in the form and fashion stated. The balance of
the allegations are neither admitted nor denied and Plaintiff is left to its proofs.
135. Defendant denies the allegations in Paragraph 135. In further response,
the record of the public hearing will reflect that Mr. Gold did not state the sewer’s
“could handle any use” as alleged, but rather stated: “That sewer in the southeast
16
corner is a 10-inch pipe and we’re pretty confident that it is sized for this
development. Again, like the stormwater, it will be vetted through engineering
practices to confirm that it can handle the future uses.” Mr. Gold’s statement
demonstrates that engineering had not yet happened.
139. Defendant denies the implied allegation that the City Council could
have voted on the issue at the Public Hearing for the reason it is untrue in the form
and fashion stated. The balance of the allegations in para 139 are admitted.
141. Defendant denies the allegations to the extent they imply an irregularity
to the customary procedures for the reasons they are untrue. The balance of the
allegations are admitted.
17
are untrue in the form and fashion stated. In further response, there was no exclusion
of comments by the Petitioner MPV.
145. Defendant admits the allegations in Paragraph 145, but denies the
allegations in footnote 19 for the reason they are untrue in the form and fashion
stated.
152. Defendant does not deny that there was a vote after all audience
members who got up to speak had spoken.

18
154. Defendant denies that the alleged instructions are necessary or even
customarily given and further denies the implication that such is a procedural
irregularity for the reason that it is untrue in the form and fashion stated.

19
are untrue in the form and fashion stated. In further response, that a vote for or
against a proposal is not evidence that comments from a participant were ignored.
20
Moreover, there are numerous distinctions of significance between the Plaintiff’s
project and the one discussed in Paragraph 172.
COUNT I – DENIAL OF PROCEDURAL DUE PROCESS
178. Defendant incorporates by reference its answer to Paragraphs 1
through 177 as though fully set forth herein.

21
WHEREFORE, Defendant respectfully requests that this Honorable Court
dismiss Plaintiff’s Complaint in its entirety and award Defendant reasonable costs
and attorney fees associated with the defense of this frivolous litigation.
COUNT TWO – DENIAL OF SUBSTANTIVE DUE PROCESS

(FAILURE TO ADVANCE A REASONABLE GOVERNMENTAL
INTEREST)

22
COUNT THREE – DENIAL OF SUBSTANTIVE DUE PROCESS :

(ARBITRARY AND CAPRICIOUS INTERFERENCE MPV’S
DEVELOPMENT OF WONDERLAND FLATS)
196. Defendant neither admits nor denies the allegations in Paragraph 196
but leaves Plaintiff to its proofs.

23
204. Defendant denies the allegations in Paragraph 204 of the Complaint
on the ground that there is no paragraph 204 in the Complaint.
24
COUNT FOUR – TAKING
208. Plaintiff sets forth a proposition of law in Paragraph 208. It presents
no factual allegations and thus no response is required. To the extent the allegations
are construed to suggest Defendant has violated the law, such is denied for the
reason it is untrue.

25
COUNT FIVE – DENIAL OF EQUAL PROTECTION
COUNT SIX – INJUNCTIVE RELIEF

26
Respectfully submitted,
/s/Eric S. Goldstein
City of Livonia
Attorney for Defendant
33000 Civic Center Drive
Livonia, MI 48154
(734) 466-2520
egoldstein@livonia.gov
27
P45842
Dated: January 18, 2023
RELIANCE ON JURY DEMAND
NOW COMES Defendant, by and through its attorneys, Paul A.
Bernier, City Attorney, Michael E. Fisher, Chief Assistant City Attorney, and Eric
S. Goldstein, Assistant City Attorney, and states that it relies upon the Jury Demand
advanced by Plaintiff.
City of Livonia
Livonia, MI 48154
(734) 466-2520
P45842
AFFIRMATIVE DEFENSES
NOW COMES Defendant, by and through its attorneys, Paul A. Bernier, City
Attorney, Michael E. Fisher, Chief Assistant City Attorney, and Eric S. Goldstein,
Assistant City Attorney, and for its Affirmative Defenses to Plaintiff’s Complaint,
shows onto this Honorable Court as follows:
1. Plaintiff lacks standing to sue the City of Livonia.
2. There is no case or controversy.

28
3. The City ordinance at issue was properly enacted and is constitutional.
4. Defendant City of Livonia has the authority to adopt ordinances to
promote the health, safety and welfare of its citizens.
5. Plaintiff has failed to state a claim upon which relief can be granted.
6. Plaintiff has not exhausted its administrative remedies.
7. Under the Michigan Constitution, the City’s power and authority to
adopt zoning ordinances is to be construed liberally.
8. Based upon information and belief, Plaintiff’s claims are barred in total,
or at least in part, by virtue of the equitable doctrines of consent, waiver and estoppel.
9. Plaintiff’s demands for relief are unreasonable, unwarranted and based
upon an unreasonable and incorrect interpretation of the law.
10. The ordinances at issue in this case and their application are presumed
to be constitutional.
11. There is no issue as to any material fact and Defendant is entitled to
judgment as a matter of law and equity.
12. The Court may not substitute its judgment for that of local officials
making local zoning decisions.
13. The decision in this case is a legitimate product of the democratic
process.
14. The City acted pursuant to its legitimate police powers.
15. This case is not ripe for adjudication.

29
16. Plaintiff lacks a constitutionally protected property interest with respect
to this discretionary decision.
17. Allegations of competitive disadvantage are insufficient to establish
standing to challenge the validity of a zoning ordinance.
18. The mere pursuit of gain or financial enhancement does not provide a
sufficient basis upon which to predicate relief in these premises.
19. There remains a reasonable use of the property without waiver use
approval being granted for an apartment complex. The Livonia Zoning Ordinance
need only allow a reasonable use, and need not sanction the highest and best use.
The mere allegations that Plaintiff’s use of property has been restricted does not in
itself constitute confiscation of the property or provide a sufficient basis upon which
to grant relief.
20. The actions taken by the Defendant pursuant to a good faith reliance on
the duly adopted City Charter of the City of Livonia cannot be used as the basis for
a claimed violation of constitutional rights. The law presumes that public officials,
acting as such, act in good faith and in performance of their duty.
21. Defendant is entitled to governmental immunity pursuant to statute and
Plaintiff has failed to plead affirmatively in avoidance of that immunity. MCLA
691.1407, et seq.
22. Plaintiff lacks a constitutionally protected property interest with respect
to this discretionary decision.

30
23. Plaintiff has failed to state a claim for the violation of substantive due
process in that the action complained of was based upon and rationally related to
valid zoning and planning issues.
24. Plaintiff has failed to state a claim for a violation of equal protection in
that Plaintiff is not a member of a suspect class.
25. The Michigan Constitution provides no greater guarantees than that of
the United States Constitution with respect to the causes of action asserted by
Plaintiff.
26. Plaintiff is placed on notice that Defendant reserves the right to bring a
motion for judgment on the pleadings to the extent that Plaintiff has failed to present
an actionable claim, either in whole or in part.
27. Plaintiff is placed on notice that Defendant reserves the right to bring a
motion per Fed R Civ P 56 to the extent that Plaintiff cannot provide a factual basis
to support any or all of the stated claims.
28. Defendant City of Livonia reserves the right to amend, alter, or
supplement these affirmative defenses up to the time of trial as discovery and/or
other events warrant.
29. Defendant demands an answer to each and every Affirmative Defense
herein.
31
City of Livonia
Livonia, MI 48154
(734) 466-2520
mfisher@livonia.gov
P45842
CERTIFICATE OF SERVICE
I hereby certify that on January 18, 2023, I electronically filed and served
Answer to Complaint, Reliance upon Jury Demand and Affirmative Defenses, with
the Clerk of the Court using the CM/ECF System, and a copy was electronically
served upon Counsel for Plaintiff, Michael A. Cox via email at
mc@mikecoxlaw.com, using the CM/ECF System.
/s/Brenda K. Smyser
Program Supervisor
City of Livonia, Department of Law
Livonia, MI 48154
bsmyser@livonia.gov
32

Livonia Response To Schostak

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Case 2:22-cv-12734-LJM-EAS ECF No. 9, PageID.

407 Filed 01/18/23 Page 1 of 32

UNITED STATES DISTRICT COURT

CITY OF LIVONIA, a Michigan

Michael A. Cox (P43039) Paul A. Bernier, City Atty. (P39119)

Assistant City Attorney, and in answer to Plaintiff’s Complaint, state as follows:

I. NATURE OF THE ACTIONS

Complaint drawn in conformity with Fed R Civ P 10(b). Accordingly, Defendant

conforming paragraphs, Defendant objects to and denies those assertions.

II. JURISDICTION AND VENUE

1. Reserving the issues of ripeness, viability of Plaintiff’s claims, and the

relevance of treaties to the instant case, Defendant generally admits to jurisdiction.

Plaintiff’s claims, Defendant generally admits.

untrue in the form and fashion stated.

4. Defendant admits the allegations in Paragraph 4.

5. Defendant admits the allegations in Paragraph 5.

6. Defendant neither admits nor denies the allegations in Paragraph 6, and

leaves Plaintiff to its proofs.

7. Defendant generally admits the allegation in Paragraph 7, but denies

the issues raised in the Complaint.

untrue in the form and fashion stated.

IV. FACTUAL ALLEGATIONS

9. Defendant neither admits nor denies the allegations in Paragraph 9, and

leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

and leaves Plaintiff to its proofs.

22. Defendant generally admits the allegations in Paragraph 22 and objects

23. Defendant generally admits the allegations in Paragraph 23 but denies

allegations are admitted upon information and belief.

untrue in the form and fashion stated.

untrue in the form and fashion stated.

and leaves Plaintiff to its proofs.

29. Defendant admits the allegations in Paragraph 29.

30. Defendant admits the allegations in Paragraph 30.

31. Defendant admits the allegations in Paragraph 31.

32. Defendant admits the allegations in Paragraph 32.

untrue in the form and fashion stated.

34. Defendant admits the allegations in Paragraph 34.

35. Defendant admits the allegations in Paragraph 35.

36. Defendant admits the allegations in Paragraph 36.

37. Defendant admits the allegations in Paragraph 37.

untrue in the form and fashion stated.

Committee was current Mayor Maureen Miller-Brosnan. The balance of the

allegations and Plaintiff is left to its proofs.

40. Defendant admits the allegations in Paragraph 40.

41. Defendant objects to Paragraph 41 as it is not drawn in conformity with

Fed R Civ P 10(b), mixing numerous factual assertions with a multi-faceted

the form and fashion stated.

untrue in the form and fashion stated.

in Paragraph 43 is understood to be a Mixed Development Center.

in Paragraph 44 are understood to be Special Planning Areas.

45. Defendants admits the allegations in Paragraph 45.