Wedgewood Ltd. Partnership I. v. Township of Liberty (456 F. Supp. 2d 904, 2006)

United States District Court for the Southern District of Ohio 2006-10-12

Citations

Full opinion text

OPINION AND ORDER

ALGENON L. MARBLEY, District Judge.

I. INTRODUCTION

This matter comes before the Court on the following motions: (1) Motion to Dismiss for Lack of Jurisdiction and/or Motion for Partial Judgment on the Pleadings by Defendants Holly C. Foust, Robert E. Cape, Kim Cellar, and John C. Werner (collectively, “Trustees”), the Township of Liberty, Ohio, located in Delaware County, Ohio (“Liberty Township”), and the Board of Trustees of Liberty Township (“Board of Trustees”) (collectively, “Defendants”); and (2) Motion to Dismiss for Lack of Jurisdiction and/or for Failure to State a Claim on Which Relief Can be Granted by Intervenor Liberty Township/Powell Neighborhood Community Watch Foundation (“Intervenor”). For the reasons set forth herein, Defendants’ and Intervenor’s Motions are GRANTED in part and DENIED in part.

II. STATEMENT OF FACTS

A. Background

The parties’ dispute centers on the Defendants’ decision to deny zoning approval for Plaintiffs proposed plan to develop a Wal-Mart Supercenter within Liberty Township. Defendants assert that they refused to issue Plaintiff a zoning permit to build the proposed Wal-Mart because the store would not comply with Liberty Township’s Zoning Resolution. Plaintiff claims, however, that Defendants’ decision to deny the requested zoning permit was arbitrary and capricious and violated its constitutional rights.

1. The Parties

Plaintiff, Wedgewood Limited Partnership I (‘Wedgewood LP” or “Plaintiff’), owns an approximately 34-acre lot located in the “Wedgewood Commerce Center” development (the WCC”), a 345-acre mixed-use development within Liberty Township. The lot, which is the subject of the instant suit, was platted as “lot number 2069” or “subarea 3” in the WCC Section 1 in 1994 and recorded as such in the Delaware County records. See Ex. F. In addition to owning lot number 2069, Wedgewood LP was also one of the original developers of the WCC. Defendants are Liberty Township, the Board of Trustees, and the individual board members in their capacity as Trustees. Also, the Liberty Township/Powell Neighborhood Community Watch Foundation (“Intervenor”) has intervened as a party defendant in the suit.

2. The WCC Development

In June 1991, Plaintiff and others filed an application for a Zoning Map amendment from FR-1 to Planned Commercial (“PC”) to create the WCC, a proposed planned-unit development. On November 18, 1991, the Board of Trustees approved the re-zoning and the parties developed a planned-unit development plan (the “PUD Plan”)., The PUD Plan, and all corresponding plat maps were formally combined into the “Wedgewood Commerce Center Development Standards” (“WCC Development Standards”), which was filed with the Commission on February 2, 1992. See Ex. F. Among other things, the WCC Development Standards required the establishment of an “architectural review committee” to “exercise control over the design and final planning of all phases of the development” and to ensure that the proposed structures fit the “rural context of Liberty Township.” See Ex. F ¶3. Further, the WCC Development Standards provided that development would occur in five-year phases and would “proceed as market conditions dictate,” estimating that it would take approximately ten to twelve years to finish the project. Id. ¶¶ 7-8.

Pursuant to the PUD Plan, lot number 2069 was zoned “Planned Commercial” (“PC”). According to the Liberty Township Zoning Resolution in place at that time, in a Liberty Township PC zone, the developer gets to “craft its own unique zoning that applies only to that developer’s parcel.” See Zoning Resolution §§ 14.01, 14.06(a)-(c) (eff. May 1, 1991). To allow for this “unique zoning,” each developer’s PC plan becomes part of an amendment to the Township’s zoning code. See id. §§ 14.06(d) (“The Development Plan as approved by the Township Trustees shall constitute an amendment to the zoning resolution as it applies to the lands included in the approved amendment”) (emphasis added).

Over the course of the next thirteen years, in accordance with standard Liberty Township zoning procedure, significant development occurred within the WCC. Some of this development differed from what was set forth in the PUD Plan. For instance, although the PUD Plan designated subareas 4, 5, 6, and 10 for “suburban office use” only, owners of each of these subareas sought approval for and were granted permits to build retail and/or commercial structures. Accordingly, subareas 4, 5, 6, and 10 now comprise approximately 248,000 square feet of “commercial” development, rather than the suburban office space for which they were initially zoned. Plaintiff asserts that it had no involvement or input in Liberty Township’s approval of these zoning changes.

In October 2003, Plaintiff submitted an application to the Commission for six area variances, primarily from set-backs, to construct a Wal-Mart Supercenter on WCC lot number 2069. The parties do not dispute that the proposed Wal-Mart store complies with the definition of “commercial” use under the Liberty Township Zoning Resolution. After conducting a public hearing on the matter, however, the Commission denied Plaintiffs variance applications, and Plaintiff subsequently withdrew them.

Soon after Plaintiffs variance applications were denied, the Homeowners Associations of Wedgewood, Campden Lakes, Wedgewood Hills, Falcon Ridge, Braemar, the Barringtons at Wedgewood Villa Condominium Association, Big Bear Farms, and Grandshire, detailed their concerns over what they deemed inconsistencies in the PUD Plan. The Board of Trustees then ordered the Zoning Inspector, Holly Foust, to “study” the history of the administration of the PUD Plan to alleviate a number of concerns over its application.

On January 19, 2004, following the Zoning Inspector’s study, the Trustees issued a Public Statement (the “January 19 Instructions”), which now governs the procedural administration of the WCC by the Commission. Importantly, the January 19 Instructions concluded that the PUD Plan imposed a so-called “floating cap” of 500,-000 square feet of commercial property (the “floating cap”) on all development within the WCC. Accordingly, the Board of Trustees instructed the Zoning Inspector to refrain from issuing any Zoning Certificates for additional commercial development -within the WCC unless or until the PUD Plan had been modified or amended pursuant to procedures for modifications set forth in the Liberty Township Zoning Resolution. The Board of Trustees further indicated that any future applications for commercial development would be subject to a “two-step major deviation” development plan modification.

Plaintiff did not submit Zoning Applications under this heightened “major modification” process. Instead, on June 29, 2004, Plaintiff, using standard. Liberty Township procedure, applied for zoning permits to build an approximately 220,598 square foot Wal-Mart Supercenter and a Murphy Oil Gas Station in subarea 3. On September 30, 2004, the Zoning Inspector denied Wedgewood LP’s permit applications explaining that, in light of the January 19 Instructions, the applications: (1) failed to meet the requirements for development plans; (2) exceeded the acreage allowed under the floating cap; (3) were incomplete because they had neither been submitted for approval nor approved by the WCC architectural review committee; and (4) were inconsistent with both the Zoning Resolution and the PUD Plan.,

On October 20, 2004, Plaintiff appealed the Zoning Inspector’s denial to the Liberty Township BZA. At the same time, Plaintiff also submitted a revised site plan and a letter withdrawing its permit application for the Murphy Oil gas station. In its appeal, Plaintiff stated that the Zoning Inspector had acted improperly in finding its zoning permit applications incomplete. Plaintiff also stated that the Zoning Inspector had acted improperly in finding that the proposed construction would exceed the maximum square footage limitations because the January 19 Instructions, which served as the basis for the Inspector’s decision, were inaccurate. Further, Plaintiff asserted that the Zoning Inspector had incorrectly stated that she could not issue a Zoning Certificate without the architectural review committee’s approval as such approval had not been required in the thirteen years since the PUD Plan had been approved. Finally, Plaintiff argued that the Zoning Inspector had mistakenly deemed its applications incomplete for allegedly failing to meet variance requests.

B. Procedural History

Because Plaintiff has filed the instant federal court action in addition to filing a later suit in state court, a discussion of the procedural history of both the federal and state court proceedings is necessary.

1. State Court Proceedings

On November 5, 2004, before the BZA had ruled on Plaintiffs appeal, Plaintiff filed the instant suit claiming that Defendants’ reliance on the January 19 Instructions, Defendants’ modification of the Zoning Resolution, and Defendants’ denial of Plaintiffs Wal-Mart zoning permit application violated Plaintiffs constitutional rights. After Plaintiff filed this action, however, administrative activity regarding Plaintiffs denied zoning permit continued in Liberty Township.

On November 16, 2004, the Liberty Township BZA conducted a public hearing on Plaintiffs appeal of the Zoning Inspector’s decision. Although Plaintiff did not present any testimonial evidence at the hearing, it did present arguments concerning the content and meaning of its plans, the development of the surrounding parcels, and a history of the WCC. On January 11, 2005, the BZA affirmed Zoning Inspector’s September 30 denial of Plaintiffs permit applications. See BZA Findings of Fact and Conclusions of Law. Thereafter, on February 8, 2005, Wedge-wood LP filed its Notice of Appeal from the BZA’s “final decision” in state court, pursuant to Ohio Revised Code § 2506.01.

On March 28, 2005, Plaintiff filed a Motion to Supplement the Record with Additional Evidence and to Stay the Briefing of the Case Pending a Decision on this Motion. Plaintiff contended that the Board of Trustees’ directive that they must approve, after public hearing, all commercial development in WCC was “improper and illegal.” Plaintiff also asserted that the use of lot 2069 to build an approximately 220,000 square foot Wal-Mart store is not a deviation from the PUD Plan because in 1991, Plaintiff was originally allotted up to 220,-857 square feet for commercial development. Further, Plaintiff claimed that it was not bound by the floating cap because no such cap had been set forth in the WCC Development Standards, and because it had never agreed to allot a significant percentage of the purported floating cap to the developers of subareas 4, 5, 6, and 10, who were permitted to construct commercial buildings in place of the office space set forth in the PUD Plan. On or about May 13, 2005, the state court denied Plaintiffs Motion to Supplement the Record, explaining that in failing to address its questions and concerns regarding certain documents and procedures during the BZA hearing, Plaintiff had effectively-waived its right to supplement the record in the trial court.

On July 18, 2005, the parties participated in a hearing before the Court of Common Pleas for Delaware County, Ohio, addressing only two narrow issues: (1) the legal basis for the floating cap on commercial development in the WCC development; and (2) whether the PUD Plan had expired by the time Plaintiff had submitted its Wal-Mart zoning permit application. The state court noted that there was a dearth of evidence on both of the issues in question, explaining:

In this ease, vital information is missing from the Liberty Township Board of Zoning Appeals (“BZA”) record that was submitted to this Court. Scarce, if any, testimony or exhibits were contained within the record that resolved questions pertaining to the basis of the zoning inspector’s decision to deny Wedgewood’s application for a zoning certificate. Further, the record was also devoid of evidence as to the legal basis of the 500,000 square foot commercial limit imposed upon the WCC; and evidence as to the affect of the originally approved [Development P]lan for the WCC on the commercial limit.

See Wedgewood Ltd. P’ship I v. Liberty Twp. Bd. of Zoning Appeals, Case No. 05CV-F-02-101, Decision and Entry at 3 (Ohio Ct. Com. Pl.’s Sept. 22, 2005) (Whitney, J.). Accordingly, the state court remanded the matter to the Liberty Township BZA to “carry out its role as the finder of fact to determine the basis of the zoning inspector’s decision, as well as provide documentation for the 500,000 square foot commercial limit [(the floating cap)] on the [WCC] Development and the affect of the original [PUD] Plan.” Id. The parties have since appealed the state court’s ruling and are scheduled to appear for oral argument in the coming months.

2. Federal Court Proceedings

Plaintiffs federal court Complaint asserts nine counts against Defendants. Counts one through four, which Plaintiff brings pursuant to 42 U.S.C. § 1983, state that Defendants violated Plaintiffs procedural due process, substantive due process, and equal protection rights by relying on unconstitutionally vague ordinances to deny its various applications for Zoning Permits arbitrarily, capriciously, and willfully. Particularly, Plaintiff asserts that Defendants’ interpretation of the PUD Plan and the WCC Development Standards to include the floating cap on commercial development was arbitrary, capricious, irrational and discriminatory. Counts five through eight assert identical claims pursuant to Ohio law. Count nine requests a declaratory judgment.

Specifically, Plaintiff seeks the following relief: (1) a declaratory judgment that Plaintiffs proposed development is in full compliance with all Liberty Township zoning standards; (2) a declaration that Defendants’ actions attempting to establish and enforce the floating cap on commercial development in the WCC are improper, impermissible, and a violation of Plaintiffs due process and equal protection rights; (3) an order enjoining Defendants from enforcing the floating cap on commercial development and the January 19 Instructions against Plaintiff; (4) an order requiring Defendants to issue Plaintiff a Zoning Certificate to develop its proposed Wal-Mart store; (5) an order enjoining Defendants from refusing to issue a Zoning Certificate for Plaintiffs proposed Wal-Mart store; (6) compensatory damages, attorney’s fees, costs, and any other declarative, injunctive, or equitable relief the Court deems just and appropriate.

On May 20, 2005, the Court granted Intervenor leave to intervene as a party defendant in the suit. On August 9, 2005, this Court stayed discovery in the case pending resolution of the parties’ jurisdictional motions, and denied Intervenor’s Motion to Postpone Decisions on Defendants’ Motion for Judgment on the Pleadings until Briefing is Concluded on the Motion to Dismiss Submitted by Interve-nors. Both Defendants’ Motion to Dismiss and/or Motion for Judgment on the Pleadings and Intervenors’ Motion to Dismiss have been fully briefed and are now ripe for this Court’s decision. Because the Court finds that Defendants’ Motion contains issues that overlap with those set forth in Intervenor’s Motion to Dismiss, the Court will consider the Motions in tandem.

III. STANDARD OF REVIEW

A.Dismissal For Lack of Subject Matter Jurisdiction

Where a defendant raises the issue of lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff has the burden of proving jurisdiction in order to survive the motion to dismiss. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.2004); Moir v. Greater Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).

Motions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir.1994). A facial attack is a challenge to the sufficiency of a complaint, and, when considering the motion, the court must view the material allegations of that complaint as true and construe them in the light most favorable to the nonmoving party. Id. A factual attack is a challenge to the factual existence of subject matter jurisdiction. Id. No presumptive truthfulness applies to the factual allegations, and the court is free to weigh the evidence and to satisfy itself as to the existence of its power to hear the case. Id.; Moir, 895 F.2d at 269. When there is an attack on the factual basis for jurisdiction, the district court must weigh the evidence, and the plaintiff has the burden of proving that the court has jurisdiction over the subject matter. Golden v. Gorno Bros., Inc., 410 F.3d 879, 881 (6th Cir.2005).

B.Motion for Judgment on the Pleadings

A motion for judgment on the pleadings may be made “[ajfter the pleadings are closed but within such time as not to delay the trial.” Fed.R.Civ.P. 12(c). Pleadings are considered “closed” once a complaint and answer have been filed. Fed.R.CivP. 7(a). Where the Rule 12(c) motion is based on the argument that the complaint fails to state a claim upon which relief may be granted, it is judged under the same standard of review as a Rule 12(b)(6) motion. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 11 (6th Cir.1987) (finding “[wjhere the Rule 12(b)(6) defense is raised by a Rule 12(c) motion for judgment on the pleadings, we must apply the standard for a Rule 12(b)(6) motion in reviewing the district court’s decision”).

C.Dismissal for Failure to State a Claim on Which Relief Can be Granted

A motion to dismiss under Rule 12(b)(6) is designed to test “whether a cognizable claim has been pleaded in the complaint.” Scheid v. Fanny Farmer Candy Shops, Inc. 859 F.2d 434, 436 (6th Cir.1988). In considering such a motion, the Court is limited to evaluating whether a plaintiffs complaint sets forth allegations sufficient to make out the elements of a cause of action. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir.1983). Dismissal under Rule 12(b)(6) streamlines litigation by “dispensing with needless discovery and fact-finding” on claims that are legally untenable in the first place. See Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

All factual allegations made by a plaintiff are deemed admitted and ambiguous allegations must be construed in his favor. Murphy v. Sofamor Danek Gp., Inc., 123 F.3d 394, 400 (6th Cir.1997). A complaint should not be dismissed under Rule 12(b)(6) “ ‘unless it appears beyond doubt that the [p]laintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 724 (6th Cir.1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). While the complaint need not specify every detail of a plaintiffs claim, it must give the defendant “ ‘fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ” Gazette v. City of Pontiac, 41 F.3d 1061, 1064 (6th Cir.1994) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99).

This liberal standard of review does require more than the bare assertion of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir.1993) (citation omitted). Under the federal pleading requirements, a plaintiffs complaint must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” See Fed.R.Civ.P. 8(a)(2). The short and plain statement must “give the defendant fair notice of what plaintiffs claim is, and the grounds upon which it rests.” A complaint must contain either direct or inferential allegations with respect to all the material elements necessary to sustain a recovery under some viable legal theory. Id. (citations omitted).

IV. ANALYSIS

A. Subject Matter Jurisdiction

Before proceeding to the merits of Plaintiffs claims, the Court must consider Defendants’ and Intervenor’s arguments that it cannot exercise subject matter jurisdiction over the matter. First, Defendants and Intervenor argue that the Court lacks subject matter jurisdiction over Plaintiffs constitutional claims because, pursuant to Williamson County Regional Planning Comm’n. v. Hamilton Bank of Johnson City, 473 U.S. 172, 186, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985), Plaintiffs procedural due process, substantive due process, and equal protection claims are not ripe for review. Second, assuming arguendo that the Court finds Plaintiffs claims ripe, Defendants and Intervenor contend that recent amendments to Liberty Township’s Zoning Resolution have mooted Plaintiffs claims. Third, Defendants and Intervenor assert that Plaintiff does not have standing to assert its vagueness claim. Fourth, Intervenor states that, pursuant to San Remo Hotel, L.P. v. City & County of San Francisco, California, 545 U.S. 323, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005), this Court should abstain from issuing a decision on Defendants’ and Intervenor’s Motions if and/or until the pending state action is resolved. The Court will consider each of the aforementioned arguments in turn.

1. Ripeness

The doctrine of ripeness arises from Article III of the United States Constitution, which, inter alia, limits the jurisdiction of federal courts to consideration of actual cases and controversies, and precludes federal courts from rendering advisory opinions. Arnett v. Myers, 281 F.3d 552, 562 (6th Cir.2002) (citing Adcock v. Firestone Tire and Rubber Co., 822 F.2d 623, 627 (6th Cir.1987)). “Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.” Id.

Defendants and Intervenor allege that because Plaintiff did not receive a final decision on its zoning permit applications or exhaust its administrative remedies before filing suit in federal court, pursuant to the rule set forth by the Supreme Court in Williamson County, its claims are not ripe for this Court’s review. See 473 U.S. at 186, 105 S.Ct. 3108. Plaintiff retorts that under Nasierowski Brothers Investment Co. v. City of Sterling Heights, 949 F.2d 890 (6th Cir.1991), its procedural and substantive due process claims are immediately cognizable in federal court. Moreover, Plaintiff asserts that should the Court find the Williamson County requirements applicable to its due process and equal protection claims, those claims are ripe because the Zoning Inspector’s September 30, 2004 denial of its permit applications amounts to a “final decision.”

In Williamson County, plaintiff, the owner of a tract of land, filed suit against the county planning commission and others in federal court, alleging that the defendants had taken its property without just compensation in violation of the Fifth and Fourteenth Amendments. See 473 U.S. at 172, 105 S.Ct. 3108. Plaintiff asserted that although the planning commission had granted it preliminary approval to construct a residential subdivision, after the plaintiff had spent millions of dollars on construction, the commission effectively made building the subdivision impossible by repeatedly changing its mind about the requirements of the pertinent zoning laws and subdivision regulations. Id.

The Supreme Court concluded that plaintiffs claim was not ripe for its review. Williamson County, 473 U.S. at 185, 105 S.Ct. 3108. First, the Court found that plaintiff had not obtained a “final decision” regarding the application of the zoning ordinance and subdivision regulations to its property. Id. The Court reasoned that there was no finality because the commission’s objections could have been resolved with variances, which, if granted would have allowed plaintiff to build as it desired, eliminating the need for the federal courts to address the difficult constitutional questions associated with regulatory takings. See id. at 186-94, 105 S.Ct. 3108. Second, the Supreme Court recognized that plaintiff had not yet suffered the injury contemplated by the Fifth Amendment’s takings clause because it had not yet been refused just compensation. See Williamson County, 473 U.S. at 194-95, 105 S.Ct. 3108. (“The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation ... Thus, the State’s action is not ‘complete’ in the sense of causing a constitutional injury ‘unless or until the State fails to provide an adequate post[-]deprivation remedy for the property loss.’ ”) (citation omitted). Because Tennessee had an adequate procedure for pursuing inverse condemnation remedies, plaintiff was required to utilize that procedure before turning to the federal courts for assistance. See id.

In holding that plaintiffs claim was not ripe, the Williamson County court took pains to distinguish the concept of finality from the somewhat related but distinct concept of exhaustion of state remedies. See Williamson County, 473 U.S. at 192-93,105 S.Ct. 3108. The reason the Court required plaintiff to pursue state remedies first was not so that plaintiff could obtain a judgment about whether the planning commission’s actions had violated its rights; that would be an exhaustion requirement. See Montgomery v. Carter County, Tennessee, 226 F.3d 758, 765 (6th Cir.2000) (discussing Williamson County, 473 U.S. at 193, 105 S.Ct. 3108 (“While it appears that the State provides procedures by which an aggrieved property owner may seek a declaratory judgment regarding the validity of zoning and planning actions taken by county authorities, respondent would not be required to resort to those procedures before bringing its § 1983 action, because those procedures are clearly remedial.”) (citation omitted)). Instead, the Court required plaintiff to seek variances so that the city’s planning commission could have a final chance to determine, once and for all, whether and to what extent the pertinent zoning laws and subdivision regulations allowed the plaintiff to build on his property. Id. If the planning commission decided to grant plaintiff all of the variances it needed to build as it wished, then plaintiff would have the full use of its property after all and would have no justiciable takings claim (except possibly for the interim period during which the tract owner was not allowed to build). Id.

The holding of Williamson County, therefore, is that Fifth Amendment takings claims do not ripen in zoning cases until: (1) there has been a final decision by the relevant state decision-maker; and (2) the property owner has utilized appropriate state inverse condemnation procedures (or other comparable alternatives). See Montgomery, 226 F.3d at 765. This latter requirement applies only if a “reasonable, certain and adequate provision for obtaining compensation,” exists in that state. Williamson County, 473 U.S. at 192-94, 105 S.Ct. 3108. In this case, Plaintiff has not alleged a Fifth Amendment taking, regulatory or otherwise. Accordingly, the Court must consider whether the finality and exhaustion requirements of Williamson County apply to Plaintiffs procedural due process, substantive due process, and/or equal protection claims.

Whether finality is required in any given case depends on the type of the harm alleged. Hammond v. Baldwin, 866 F.2d 172, 176 (6th Cir.1989). For instance, “[i]f the injury the [plaintiffs] seek to redress is harm to their property amounting to a ‘deprivation’ in constitutional terms, a final judgment is required,” but if the injury is the infirmity of the process, neither a final judgment nor exhaustion is required. See Bowers v. City of Flint, 325 F.3d 758, 762 (6th Cir.2003) (citing Hammond, 866 F.2d at 176). In essence, a due process challenge to an allegedly unconstitutional procedure brought under section 1983 is not subject to a finality requirement, while a claim alleging harm or deprivation of property “is substantive, and, so, a final judgment (but not exhaustion) is required.” Id.; see Nasierowski Brothers Investment Co. v. City of Sterling Heights, 949 F.2d 890 (6th Cir.1991) (“a procedural due process claim is instantly cognizable in federal court without requiring a final decision on a proposed development from the responsible municipal agency”); see also Hammond, 866 F.2d at 176 (in cases of the present type “ ‘the allegedly infirm process is an injury in itself,’ whereas, in the context of a takings claim, the alleged injury ... cannot be assessed with any degree of certainty until the municipality arrives at a final decision”).

Counts one and two of Plaintiffs Complaint, which assert that Defendants violated Plaintiffs due process rights by arbitrarily, capriciously, and willfully ignoring Plaintiffs compliance with Defendants’ legitimate zoning standards to deny Plaintiff its requested Zoning Certificates, constitute pure due process claims. See Corn-plaint ¶¶ 29-40. Under the rule promulgated by Nasierowski, therefore, the Court finds that Plaintiff need not comply with the Williamson finality or exhaustion requirement to assert these claims., Accordingly, the Court finds that both counts one and two are ripe for its review.

It is undisputed, however, that Plaintiffs equal protection claim is subject to the Williamson County final decision requirement. See Seguin, 968 F.2d at 588; V. Jacobs & Sons v. Saginaw County Dept. of Public Health, 284 F.Supp.2d 711, 718 (E.D.Mich.2003) (plaintiff required to “exhaust” state remedies for its “as applied” equal protection claim); Bigelow, 970 F.2d at 159 (finding that the Williamson finality requirement applies to both equal protection and takings claims). Thus, in this case, a ripe equal protection claim arising from the denial of Plaintiffs requested zoning permit must involve a final decision by the government agency or government agent responsible for applying Liberty Township’s zoning regulations to Plaintiffs zoning permit application.

Plaintiff has satisfied the finality requirement. As noted above, finality “is concerned with whether the initial decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” See Bowers, 325 F.3d at 762; see also, Bannum, 958 F.2d at 1365. In the present case, Plaintiff made a meaningful application for a zoning certificate to the Zoning Inspector, and her decision to deny Plaintiff its requested permit constitutes a final decision.

The second prong of Williamson County, requiring a plaintiff to seek compensation from the state, does not apply to this case. Courts have held that, “bona fide equal protection claims arising from land-use decisions can be made independently from a takings claim and without being subject to Williamson [County exhaustion].” See Cramer v. Vitale, 359 F.Supp.2d 621, 629 (E.D.Mich.2005) (citing Forseth v. Village of Sussex, 199 F.3d 363, 370 (7th Cir.2000) (holding that, “[a]bsent a fundamental right or a suspect class, to demonstrate a viable equal protection claim in the land-use context, the plaintiff must demonstrate governmental action wholly impossible to relate to legitimate governmental objectives.”) (citations omitted)). Accordingly, Plaintiffs equal protection claim is ripe for its review.

2. Mootness

As noted supra, the jurisdiction of federal courts is limited to the resolution of actual “cases” and “controversies.” See See U.S. Const, art. Ill, § 2, cl. 1; Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997); NRA of Am. v. Magaw, 132 F.3d 272, 279 (6th Cir.1997). A case becomes moot “when the issues presented are no longer live or parties lack a legally cognizable interest in the outcome.” See Cleveland Branch, NAACP v. City of Parma, Ohio, 263 F.3d 513, 530 (6th Cir.2001) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). The mootness doctrine posits that cases, which, due to changed circumstances, can no longer impact the interests of the litigants, may not be adjudicated in the federal courts. See DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (plaintiffs case challenging the constitutionality of a state law school’s admissions process was found moot; plaintiff was nearing completion of his final year in law school when the case reached the United States Supreme Court for review, and the Court found that its decision would no longer affect his interests).

Defendants and Intervenor argue that Plaintiffs claims are moot because Plaintiff “is no longer entitled to the development it seeks in this litigation.” See Intervenor’s Motion at 16. According to Defendants and Intervenor, because Plaintiff failed to develop lot number 2069 within three years from the initial approval of the PUD Plan and failed to apply for and receive approval from the Commission to extend the applicability of the WCC Development Standards, the PUD Plan upon which Plaintiffs claims rely, expired in 1994. Alternatively, Defendants and In-tervenor contend that Plaintiffs claims are moot due to the passage of the December 8, 2004 amendments to the Liberty Township Zoning Resolution. See Ex. L, § 14.04(23). Plaintiff counters that according to the WCC Development Standards, construction in the WCC was projected to take approximately ten to twelve years, Plaintiff filed a plat map as required by the Zoning Resolution, and Defendants have not set forth facts establishing that the PUD Plan and the corresponding WCC Development Standards are no longer applicable. Further, Plaintiff argues that Defendants cannot foreclose its claims by applying the most recent amendments to the Liberty Township Zoning Resolution retroactively.

i. Whether the PUD Plan has Expired

Defendants and Intervenor assert that according to the Liberty Township Zoning Resolution, because Plaintiff both failed to develop and failed to file a plat map for lot number 2069 within three years of the filing of the PUD Plan and the WCC Development Standards, Liberty Township’s preliminary approval of Plaintiffs Planned Commercial (“PC”) zoning of lot 2069 has expired. Plaintiff counters that the PUD Plan has not expired because under the Liberty Township Zoning Resolution, the only regulations governing development within the WCC were the WCC Development Standards, which, rather than expiring in three years, projected completion of the WCC within ten to twelve years, occurring “as market conditions dictate.” See Ex. F ¶¶ 7-8. Moreover, assuming ar-guendo that the Court finds the three-year expiration period applicable to Plaintiffs proposed development, Plaintiff asserts that it properly recorded all plats, and notes that until this litigation began, Defendants permitted many other developers to proceed with construction according to the ten to twelve year timeline set forth in the WCC Development Standards.

Pursuant to the PUD Plan, lot 2069 was zoned “Planned Commercial” (“PC”). In a Liberty Township PC zone, the developer gets to “craft its own unique zoning that applies only to that developer’s parcel.” See Zoning Resolution §§ 14.01, 14.06(a)-(c) (eff. May 1, 1991). To allow for this “unique zoning,” each developer’s PC plan becomes part of an amendment to the Liberty Township Zoning Resolution. See Zoning Resolution §§ 14.06(d) (“The Development Plan as approved by the Township Trustees shall constitute an amendment to the zoning resolution as it applies to the lands included in the approved amendment”). Further, the Township’s approval, “shall be for a period of (3) years to allow the preparation of plats required by the Subdivision of Delaware County, Ohio,” and “[u]nless the required plats are properly recorded and work on said development commenced within three (3) years, the approval shall be voided and the land shall automatically revert to R-l District unless the application for time extension is timely submitted and approved.” Id. Finally, where the proposed timetable for a specific PC development includes developing the land in phases, “all phases to be developed after the first, shall be fully described in textural [sic] form in a manner calculated to give township officials definitive guidelines for approval of future phases.” Id. § 14.06(b)(8).

As a threshold matter, the Court finds persuasive Plaintiff’s argument that because the PUD Plan amended Liberty Township’s Zoning Resolution for all WCC property, the WCC Development Standards did not expire in 1994. As set forth above, the Liberty Township Zoning Resolution states clearly that PUD zoning plans become amendments to the Liberty Township Zoning Resolution in order to allow each developer to proceed with construction according to his specific needs. See Liberty Township Zoning Resolution §§ 14.01, 14.06(a)-(c). The WCC Development Standards clearly propose a ten to twelve year construction time, and note that development would proceed as “market conditions dictate.” Ex. F ¶ 7. Under the Liberty Township Zoning Resolution, these revised timelines for construction within the boundaries of the WCC became amendments to the Liberty Township Zoning Resolution applicable to all WCC developers, and the fact that Plaintiff did not apply for a construction permit within three years does not mean that the PUD Plan expired.

In finding that the three-year expiration period does not apply to Plaintiffs property, this Court relies, in part, on Solove v. Westerville City Council, 2002 WL 1291797 (Ohio App. June 13, 2002). In Solove, developers appealed the city council’s decision to disapprove an ordinance that would implement a planned community commercial (“PCC”) plan. Id. at *1. In 1987 developers submitted a comprehensive plan to build within a local PCC district for the commission’s approval. Id. at *8. On appeal, plaintiffs argued that the defendants’ consideration of the ordinance should have been governed by the PCC development plan rather than by the general provisions of the zoning code. Id. at *9. Defendants countered that the designation of the property as a PCC district was a “hollow shell” because there were no accompanying standards under which construction must occur. Id. The Solove court ruled for plaintiffs, concluding that the idea contemplated by Ohio law is that “once a Development Plan is approved, such plan will contain the standards applicable to that individual PCC district and to no other property that may also be zoned PCC.” Id. at *15. Therefore, as in Solove, in this case, the Court determines that the standards applicable to the WCC are those implemented in 1991/1992. 2002 WL 1291797.

Further, the Court notes that based on the record before it at this time, there is a paucity of evidence to support Defendants’ and Intervenor’s argument that Plaintiff failed to file a plat map within three years. There are multiple plat maps attached to the WCC Development Standards, which were indisputably filed with the Commission. See Ex. F. Thus, though Defendants suggest that Plaintiff failed to file the necessary plat, the available evidence disputes that claim.

ii. Retroactive Application of Amended Zoning Resolution

On December 8, 2004, the Commission passed an amendment to the Liberty Township Zoning Resolution, which provides that, “[rjetail or mixed-use buildings, containing retail uses, shall contain no more than 65,000 gross square feet of floor area under one roof.” See Ex. L, § 14.04(23). Defendants and Intervenor contend that because Wedgewood’s zoning permit application sought to build a 220,-598 square foot retail store, its proposal did not comply with that 65,000 square foot limit, and was, therefore, correctly denied. Plaintiff, however, asserts that because it applied for a zoning permit in June 2004, six months before the enactment of the 65,000 square foot cap amendment, Defendants’ attempts to apply that amendment retroactively must fail.

Property rights “are created and their dimensions defined by existing rules or understanding that stem from an independent source such as state law.” Stile v. Copley Twp., Ohio, 115 F.Supp.2d 854, 865, n. 21 (N.D.Ohio 2000) (citing Bd. of Re gents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)) (commission’s decision to eliminate one category of permitted uses for plaintiffs property amounted to an unauthorized zoning amendment which could not be applied to plaintiffs permit application retroactively). In Ohio, it is well-established that a property owner’s right to an existing zoning classification vests upon the submission of an application for a building or zoning certificate. Gibson v. Oberlin, 171 Ohio St. 1, 167 N.E.2d 651 (1960) (finding that the issuance of a permit was governed by the law in effect at the time of the application therefor and not by an amendment to such law enacted during the pendency of litigation to compel the issuance thereof); see also Stile, 115 F.Supp.2d at 865, n. 21 (citing Gibson and finding that plaintiff had a vested right in the township’s pre-amendment zoning procedures). It is undisputed that Plaintiff applied to the Commission for building permits on June 29, 2004. The Amendments to the Liberty Township Zoning Resolution on which Defendants and Intervenor rely, however, were not enacted until December 8, 2004. Accordingly, under Ohio law, Defendants and Intervenor cannot apply retroactively the 2004 Amendments limiting retail space within the WCC to 65,000 square feet.

3. Whether Plaintiff has Standing to Assert its Vagueness Claim

The case or controversy limitation of Article III requires that a party invoking federal jurisdiction has standing — in other words, a “personal stake in the outcome” of the action. See Baker v. Carr, 369 U.S. 186, 294, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Stevenson v. J.C. Bradford & Co., 277 F.3d 838, 852-53 (6th Cir.2002). To establish a personal stake in the outcome of an action, a plaintiff must allege an “injury in fact” to his pre-existing, legally protected interest. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks omitted). That injury must be “(a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical.” Id.; see also, TCG Detroit v. City of Dearborn, 206 F.3d 618, 622 (6th Cir.2000). A particularized injury is one that “affect[s] the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560, n. 1, 112 S.Ct. 2130. Further, in cases in which a prisoner alleges he has been denied access to court, an inmate establishes standing by showing that he suffered an actual litigation related injury or legal prejudice because of the actions of the defendant. See Lewis v. Casey, 518 U.S. 343, 349-51, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996) (requiring “actual prejudice with respect to the contemplated or existing litigation, such as the inability to meet a filing deadline or present a claim”).

In addition, “standing does not have to be maintained throughout all stages of the litigation.” Cleveland Branch, NAACP, 263 F.3d at 524. “Instead, [standing] is to be determined as of the time the complaint is filed.” Id. The Cleveland Branch court exhaustively reviewed United States Supreme Court precedent to conclude that “ ‘jurisdiction is tested by the facts as they existed when the action [was] brought’ and ‘that after vesting, it cannot be ousted by subsequent events.’ ” Id. (quoting Smith v. Sperling, 354 U.S. 91, 93, n. 1, 77 S.Ct. 1112, 1 L.Ed.2d 1205 (1957)). Consequently, the proper inquiry is whether a plaintiff was suffering or had suffered an actual injury at the time a complaint was filed. Id. (emphasis added).

Count three of Plaintiffs Complaint alleges that the purported floating cap on commercial development set forth in the January 19 Instructions is unconstitutionally vague. Accordingly, Plaintiff claims that because Defendants based the floating cap on their interpretation of the Liberty Township Zoning Resolution and the WCC Development Standards, the Resolution and the Standards are also unconstitutionally vague. Defendants assert that Plaintiff lacks standing to assert its vagueness claim because it failed to seek zoning permit approval through the two-step review procedure instituted through the January 19 Instructions. See Defs.’ Motion at 17. According to Defendants, because the Commission, the BZA, and the Trustees have not been given a chance to consider whether the purported floating cap precludes Wedgewood LP from developing the property as it wishes, its vagueness challenge is premature. Id. at 18.

The Court finds that Plaintiff has standing to challenge the Liberty Township Zoning Resolution and the WCC Development Standards to the extent that they include the floating cap on commercial development. The denial of Plaintiffs zoning permit application is an “actual injury,” which, according to the Zoning Inspector’s September 20, 2004 letter, was based in part on the January 19 Instructions. See Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 835 (6th Cir.2004) (plaintiffs had standing to challenge the zoning scheme’s ban on adult bookstores in B-3 zones; because they were injured in fact when they were forced to close their business, a causal relationship existed between the enforcement of the zoning scheme and the harm, and the injury was redressable by an award of monetary damages for lost business); Stephenson v. Davenport Community School Dist., 110 F.3d 1303, 1308 (8th Cir.1997) (student’s standing to bring a void-for-vagueness claim derived from actual injury, directly caused by school district’s regulation that could be compensated by favorable decision by the court) (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). Moreover, because the Liberty Township BZA issued a January 11, 2005 decision affirming the Zoning Inspector’s decision denying Plaintiff its requested zoning permit, Defendants’ April 2005 argument that Liberty Township had not been given the opportunity to consider whether Plaintiffs proposed Wal-Mart store would be permissible under the floating cap, is disingenuous.

4. Abstention

In its Reply Memorandum, Intervenor raised, for the first time, its contention that should the Court decline to dismiss Plaintiffs case under Williamson County, it should at least stay Plaintiffs claims pursuant to the recent decision by the Supreme Court in San Remo Hotel, L.P. v. City & County of San Francisco, California. See 125 S.Ct. at 2491. A brief discussion of San Remo is necessary. In San Remo, plaintiffs, hotel owners, challenged a city hotel ordinance, which imposed a large fee on the conversion of residential rooms to tourist rooms, claiming that it amounted to a regulatory “taking without just compensation.” Id. at 2495-500. Initially, the plaintiffs challenged the new ordinance in a state inverse condemnation proceeding, but later filed a separate action in the federal district court in California under 42 U.S.C. § 1983. See id. The trial judge granted summary judgment for the city. Id. On appeal, however, the U.S. Court of Appeals for the Ninth Circuit granted Pullman abstention. Id. The court explained that on its face, the ordinance worked a “taking,” and the as-applied challenge was unripe because under Williamson County, the plaintiffs were required to seek compensation in the state courts before filing suit in federal court. Id.; see San Remo Hotel v. City & County of San Francisco, 145 F.3d 1095 (9th Cir.1998) (citing Williamson County, 473 U.S. at 172, 105 S.Ct. 3108).

The plaintiffs subsequently pursued their inverse condemnation proceeding in the California state court and moved to reserve their federal claims for resolution in federal court. San Remo, 125 S.Ct. at 2499. The California Supreme Court sustained the San Francisco ordinance against a full range of takings challenges and affirmed the trial court’s order, dismissing the complaint. Id.; San Remo Hotel v. City & County of San Francisco, 27 Cal.4th 643, 117 Cal.Rptr.2d 269, 41 P.3d 87 (2004). The plaintiffs did not seek cer-tiorari on the Ninth Circuit’s ruling, choosing, instead, to file an amended complaint in the California district court, asserting that they had expressly reserved their federal takings claims. 125 S.Ct. at 2499. The district court held that the plaintiffs’ facial attack on the San Francisco ordinance was barred by both the statute of limitations and the general rule of issue preclusion, and the Ninth Circuit Court of Appeals affirmed. Id. at 2499-500.

The Supreme Court granted certiorari and affirmed, holding that under the detailed circumstances of the case, which included “[b]road takings claims in language that sounded in the rules and standards established and refined by [the U.S. Supreme Court’s] takings jurisprudence,” that the federal court may not disregard the full faith and credit statute, 28 U.S.C. § 1738, in the proceeding. Id. at 2500. The Court held that the plaintiffs were precluded by the state judgment from proceeding on identical claims in the federal courts, explaining that, “[t]here is, in short, no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to reliti-gate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather have not been engaged at all.” Id. at 2504 (citing Allen v. McCurry, 449 U.S. 90, 94-96, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)).

Intervenor asserts that based on the Supreme Court’s ruling in San Remo, this Court should abstain until Plaintiffs parallel state court proceedings are complete. Intervenor’s Reply at 9. According to Intervenor, Plaintiffs federal constitutional claims will likely be moot upon a state court judgment that: (1) Plaintiff was required to submit an application for a major modification; (2) Plaintiff was not entitled to its requested zoning certificate; or (3) the PUD Plan and the WCC Development Standards included a floating cap on commercial development. Plaintiff did not have the opportunity to respond to Intervenor’s argument.

The Court finds abstention unnecessary in this case. Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218, 228-29, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964). In Griffin, African-American school children sued the County School Board of Prince Edward County, Virginia and others to enjoin them from refusing to operate an efficient system of free public schools in Prince Edward County and to enjoin payment of public funds to help support private schools which excluded students on account of race. See id. Defendants asserted that the Supreme Court should abstain from deciding plaintiffs’ claims until the Virginia Supreme Court had had the opportunity to decide whether the conduct complained of violated the United States Constitution and/or the laws of Virginia. Id. The Court, however, chose to consider the merits of plaintiffs’ claims, explaining:

... [T]his is not a case for abstention. In the first place, the Supreme Court of Appeals of Virginia has already passed upon the state law with respect to all the issues here. County School Board of Prince Edward County v. Griffin, 204 Va. 650, 133 S.E.2d 565 (1963). But quite independently of this, we hold that the issues here imperatively call for decision now. The case has been delayed since 1951 by resistance at the state and county level, by legislation, and by lawsuits. The original plaintiffs have doubtless all passed high school age. There has been entirely too much deliberation and not enough speed in enforcing the constitutional rights which we held in Brown v. Board of Education, supra, had been denied Prince Edward County Negro children. We accordingly reverse the Court of Appeals’ judgment remanding the case to the District Court for abstention, and we proceed to the merits.

Id.

Similarly, in this case Plaintiffs constitutional claims have been unresolved for too long for this Court to abstain from deciding the pending Motions. Plaintiffs federal action was filed in November 2004. Plaintiffs state action was filed in early 2005. It is now October 2006, and there has still been no definitive ruling on any of the factual disputes necessary to decide Plaintiffs claims. In fact, on September 22, 2005, the state court judge, finding the record devoid of “vital information” necessary to the court’s analysis, remanded the case to the Liberty Township BZA, and an appeal to the state appellate court is currently pending. See Wedgewood Ltd. P’skip I, Case No. 05CV-F-02-101, Decision and Entry at 3. Though Plaintiffs claims may not be as politically weighty as the plaintiffs’ claims in Griffin, justice delayed is still justice denied. Should this Court decline to rule on Plaintiffs claims at this time, it would only further postpone any possible outcome to the parties’ dispute, a result that this Court finds unacceptable. Accordingly, the Court proceeds to the merits Plaintiffs claims.

B. Whether Plaintiff Has Stated Claims On Which Relief May be Granted

Plaintiff alleges that Defendants deprived it of its civil rights in violation of 42 U.S.C. § 1983. See Complaint ¶¶29~ 56. Specifically, Plaintiff maintains that Defendants, while acting under color of state law, deprived it of its right to procedural and substantive due process, as well as its right to equal protection. Id. Consequently, Plaintiff contends that it is entitled to its requested relief. Id. at 19.

Section 1983 creates a cause of action for deprivation of civil rights. Jaco v. Bloechle, 739 F.2d 239, 241 (6th Cir.1984). For purposes of Section 1983 claims, the term “person” may be applied “to bodies politic and corporate.” Quarles v. City of E. Cleveland, 202 F.3d 269, 1999 WL 1336112, *3 (6th Cir.1999) (citing Monell v. Dept. of Social Servs., 436 U.S. 658, 688, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). This Court has previously held that township boards of trustees are “persons” within the meaning of section 1983. Danis Clarkco Landfill Co. v. Trustees of German Twp., 1997 U.S. Dist. LEXIS 21081, at *84-85 (S.D.Ohio, Apr. 16, 1997). Moreover, the Ohio Supreme Court has held that any “governmental body having powers and duties of government” is a body politic and corporate. See J.D. Partnership v. Berlin Twp. Bd. of Trustees, 412 F.Supp.2d 772, 777 (S.D.Ohio 2005). Chapter 519 of the Ohio Revised Code makes a township zoning commission responsible for zoning matters in a township; accordingly, Defendants have powers and duties of government, and are therefore “persons” within the meaning of Section 1983. Defendants acted under color of state law because Defendants’ actions related to the Liberty Township Zoning Resolution. See Ohio Rev.Code §§ 503.01, et seq., 505.01, et seq., 519.01, et seq. Having decided that Defendants are persons and that they acted under color of law, the Court will now consider whether Plaintiffs claims satisfy the following elements of a Section 1983 claim: the deprivation of a right secured by the Constitution or laws of the United States, which was caused by a person acting under color of state law. See Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir.1995).

1. Substantive Due Process Claim

Substantive due process is “[t]he right not to be subject to ‘arbitrary or capricious’ action by a state either by legislative or administrative action.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1217 (6th Cir.1992). Proving a violation of substantive due process requires not only that the challenged state action was arbitrary and capricious, but also that the plaintiff has a constitutionally protected property or liberty interest. Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir.1992). In the absence of a constitutionally protected interest, allegedly arbitrary and capricious conduct will not support a substantive due process claim. See id.

The Sixth Circuit applies an “entitlement test” to determine whether an alleged property right is protected by the Fourteenth Amendment. Andreano v. City of Westlake, 136 Fed.Appx. 865, 2005 WL 1506049, *5 (6th Cir. June 23, 2005). Under that test, a protectable property right exists only if a plaintiff has a “legitimate claim of entitlement” or a “justifiable expectation” in the approval of his Plan. Triomphe Investors, 49 F.3d at 202-03; Silver, 966 F.2d at 1036; G.M. Eng’rs & Assocs., Inc. v. W. Bloomfield Twp., 922 F.2d 328, 331 (6th Cir.1990) (finding that if defendants had the discretion to deny plaintiffs zoning application regardless of whether Plaintiff complied with certain minimum, mandatory requirements, then plaintiff has no “legitimate claim of entitlement” or “justifiable expectation” in the approval of its applications). This Court must apply state zoning laws to determine whether a legitimate claim of entitlement or a justifiable expectation exists. See Sil ver, 966 F.2d at 1036 (citing Roth, 408 U.S. at 577, 92 S.Ct. 2701).

A plaintiff lacks a legitimate claim of entitlement or justifiable expectation if a municipality has discretion under its zoning code to deny the plaintiffs land-use application despite the application’s compliance with the code’s minimum requirements. Triomphe, 49 F.3d at 202-03; Silver, 966 F.2d at 1036 (“if the Board had discretion to deny the plaintiff the conditional zoning certificate [for the use the plaintiff sought], even if he complied with certain minimum mandatory requirements, then he did not have a ‘legitimate claim of entitlement’ or a ‘justifiable expectation’ in the approval of his plan.”). In Silver, this Court held that a municipal zoning board retained sufficient discretion to deny a conditional use permit application that fully complied with a zoning statute’s minimum requirements where the statute provided that an application could be approved so long as it was “desirable.” 966 F.2d at 1036. Similarly, a statute providing that “a special use permit may be granted” afforded the zoning board in Triomphe sufficient discretion to deny a special use permit application despite the application’s compliance with the statute. See 49 F.3d at 203.

Plaintiff asserts a protected property right in the applied for zoning certificate, as well as the PUD Plan and the corresponding WCC Development Standards. Applying the above “entitlement test,” however, the Court finds that Plaintiff has set forth no evidence showing that it has a protected property interest in either. The Liberty Township Zoning Resolution grants the Commission broad discretion to determine whether to grant or deny applications for zoning permits. See Liberty Township Zoning Resolution § 25.03 (2002). Nothing in the Zoning Resolution states that an applicant is automatically entitled to a requested zoning permit. Further, though Plaintiff asserts that Defendants unlawfully applied the January 19 Instructions’ floating cap to deny its zoning permit application, the Zoning Inspector based her denial on a number of reasons, many of which were unrelated to the January 19 Instructions. See Ex. B. Because Plaintiff has not established a legitimate claim of entitlement to a zoning permit, nor a justifiable expectation that the Zoning Inspector would issue the permit, it has no property interest that could support a substantive due process claim.

The Court notes that even if Plaintiff did have a protected property interest in its requested zoning permit, it has failed to show that the Zoning Inspector’s denial of its permit application was “arbitrary and capricious.” See Tri-Corp. Mgmt. Co., 33 Fed.Appx. at 747; Pearson, 961 F.2d at 1217; see also Nectow v. City of Cambridge, 277 U.S. 183, 187-88, 48 S.Ct. 447, 72 L.Ed. 842 (1928) (holding that a