Agenda - Planning Commission - 05/06/2010

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March 10, 2010 ~ Volume 4 ~ No. 5 Zoning Bulletin The Background/Facts: Sue Fritz was an independent agent for the ( I Farm Bureau Insurance Company ("FBIC"). She was doing business as the Fritz Agency out of her home in the township. Fritz eventually learned that the township's zoning restrictions and or- dinances "restricted the way she could conduct her business" with re- gards to: a sign describing the business; employees working in her home office; and the proportion of the home she could use as an office. Fritz applied for a zoning variance and for a signage variance. Both were de- nied by the township's Zoning Board of Appeals ("ZBA"). Fritz subsequently filed a lawsuit against the township (the "Town- ship") and its Supervisor. Among other things, Fritz alleged that iti de- nying her requested variances, the ZBA engaged in unlawful retalia- tion, under 42 U.S.C.A. § 1983. Section 1983 authorizes an individual to bring a civil action against "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage ..." depiives the indi- vidual of rights "secured by the Constitution and laws ...." Fritz alleged that the ZBt1s denials were retaliation against her for exercising her First Amendment rights when she spoke critically of the Township in public forums and in the press. The district court issued judgment on the pleadings for the Township. The district court found that Fritz's allegations in her complaint were not sufficient to state a claim for retaliation under § 1983. Fritz appealed: (~. The Court's Decision: Judgment of the district court reversed; case remanded. The United States Court of Appeals, Sixth Circuit, held that Fritz had sufficiently stated a claim for adverse anion irr the § 1983 retalia- tioir context. Accordingly, it reversed the district court's judgment and remanded the matter for further proceedings consistent with its opinion: In so holding, the court explained that for Fritz's claim under § 1983 to survive a motion to dismiss, she had to allege two elements: (1) the ZBA acted under color of state law; and (2) the ZBAs conduct deprived hef of rights secured under federal law. The court found it cleaz that the ZBA was actitrg under color of state law As to-the second prong of the analysis, the court said that to suffi- ciently plead that the ZBA's conduct deprived her of rights secured un- der federal law, Fritz's factual allegations had to establish that: (1) Fritz engaged in constitutionally protected conduct; (2) an adverse action was taken by the ZBA against Fritz that would "deter an average citizen from participating in public meetings and criticizing local officials about matters duectly relevant to the citizen's business interests in the commu- nity"; and (3) the adverse action was motivated at least in part by Fritz's protected conduct: '' The court found that: (1) Fritz's allegations that she engaged in public comment at public meetings for the township and that she made com- ments to the press "certainly suffice[d] as protected conduct under the $ ~ ©2010 Thomson Reuters 34