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Municipal Litigation

Foster Swift has long been involved in complex litigation matters on behalf of municipalities. In addition to land use and zoning litigation, Foster Swift attorneys frequently defend municipalities in cases involving municipal liability, workers’ compensation and negligence.  A considerable portion of our litigation practice involves the representation of municipal governments in litigation involving civil rights claims, constitutional claims, and governmental immunity.  Foster Swift attorneys have also successfully represented several municipalities against lawsuits alleging improper or defective public works construction. 

Foster Swift municipal attorneys have handled appellate litigation for its municipal clients as well. Over the years, Foster Swift attorneys have been regularly involved in many of the most important cases before the Michigan Court of Appeals and Supreme Court. 

Foster Swift litigation and appellate attorneys assist municipalities of all sizes in the following areas of law:

  • 42 USC 1983
  • Civil Rights claims under Title VII; ADEA (age); and the Elliott-Larsen Civil Rights Act (such as race and sex discrimination claims)
  • Disability Claims pursuant to federal (ADA) and state (PWDCRA) law
  • Constitutional Challenges to ordinances, regulations, and land use decision-making
  • Due Process
  • Environmental liability
  • Environmental Regulations
  • Equal Protection
  • Family Medical Leave Act
  • First Amendment Claims
  • Freedom of Information Act
  • Open Meetings Act
  • Harassment claims
  • Land Use Litigation
  • Premises liability and motor vehicle accidents
  • Prosecution/ordinance enforcement
  • RLUIPA (religious discrimination)
  • Takings Claims
  • Whistleblower Protection Act

Representative Experience

Michigan Court of Appeals upholds dismissal of lawsuit brought by land developers challenging a township's zoning ordinances. Land developers claimed that the township's zoning ordinances, particularly the density restrictions, violated the Land Division Act, the Condominium Act, and were unreasonable and arbitrary.  The Court of Appeals affirmed the trial court's dismissal of the lawsuit because the developers had failed to exhaust the administrative remedies provided by the township, and because the zoning ordinances were facially constitutional. The Township Zoning Act enables townships to impose density restrictions in each zoning district, and municipalities can impose stricter requirements than what is required by the Land Division Act.

The Michigan Supreme Court reversed the Court of Appeals and found in favor of the township, dismissing the lawsuit. Plaintiffs claimed the township engaged in exclusionary zoning because the Township's zoning plan did not classify any land as appropriate for a manufactured housing community. The Michigan Supreme Court held that an ordinance is not facially invalid merely because it does not authorize every conceivable lawful use. Additionally, a zoning authority's denial of an application for residential rezoning at a proposed lower-density level does not automatically establish that it would be futile for the property owner to apply for a higher-density use. The futility exception in zoning cases does not apply until property owners have submitted at least one meaningful application for a variance from the challenged zoning regulations. Because the plaintiffs in this case never submitted an application to the township for a use variance or rezoning for a manufactured housing community, plaintiffs claim was dismissed as not ripe for judicial review.  

In a case establishing that the ministerial exception exists in Michigan, all employment litigation claims were dismissed. The ministerial exception is rooted in the First Amendment's guarantees of religious freedom and generally bars any inquiry into a religious organization's underlying motivation for a contested employment decision which would limit a religious institution's right to select who would perform particular spiritual functions. The Michigan Supreme Court created a non-exhaustive list of factors to consider when determining if the ministerial exception applies to a case.  In considering this particular case, since the plaintiff performed ministerial responsibilities and provided religious direction to students, the ministerial exception barred her employment claims. The ministerial exception could be applied to both Michigan Civil Rights claims and Whistleblower Protection Act claims that involved a religious institution and a ministerial employee. 

A Takings Clause claim and other constitutional claims were dismissed against a township because Michigan state courts must be given an opportunity to adjudicate the issue of just compensation before a takings claim based on unjust compensation can be brought in federal court. Landowners sought to rezone their farmland for a trailer park and other residential development. The Sixth Circuit Court of Appeals upheld the Michigan Eastern District court's dismissal of the lawsuit because Michigan's laws provided an adequate procedure for seeking just compensation, and the landowners were required to give the state court an opportunity to decide the issue of just compensation before seeking a declaration from the federal courts that the state had failed to provide just compensation.

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