The news of George Floyd, Ahmaud Arbery and Breonna Taylor is now part of the collective conscious of America. The senseless deaths has brought the reality of racism into our lives and shaken us to a core.
Racism is not new in zoning. Studies have confirmed how municipal zoning policies are linked to racial discrimination. Scholars and policy makers agree that zoning has been, and currently is, being used as a tool to deter entry of poorer households into wealthier neighborhoods. Low-income minority households become trapped in poor neighborhoods as a result of “exclusionary” zoning, contributing to racial segregation and disparities. Scholars also argue that zoning is used to steer industrial activity towards minority neighborhoods leading to disproportionate toxic exposure and depressed land values.
As a land use and zoning attorney, I have seen how race plays a role in zoning. And I find that the more common application of racism in zoning occurs inside the office of the Planning Department and at the dais of the Planning Commission. Consider the case of Shavers v. Almont Township, Michigan, a case our firm is currently litigating. The facts are relatively uncontested. Ray Shavers is the sole African-American business owner in Almont Township, a rural enclave of Lapeer County, Michigan. Shavers was presented with a valuable opportunity storing commercial materials on his property. To make that happen, Shavers was set to build a 10,000 square foot pole barn, which requires approval from the Almont Township Planning Commission. This was usually an easy and straightforward process. The Planning Commission typically approved such pole barns in a single meeting.
But that did not happen for Ray Shavers, because of a hostile Planning Commission and because of the particular actions of two people—Ida Lloyd, the Zoning Administrator, and Steve Francis, the chair of the Planning Commission. Shavers approached Lloyd initially to file the paperwork for his pole barn application. After reviewing his application and telling him things would go smoothly, Lloyd told Shavers he could go ahead and start construction. But when Shavers later got in trouble with the Planning Commission for starting construction, Lloyd pretended she never authorized him to do so. And then to help cover her mistake, she forced Shavers to apologize to the Commission and take sole responsibility for the mistake (rather than allowing him to point out that, in fact, she had told him he could start construction).
On top of that, there is Steve Francis, the chair of the Planning Commission and owner of the Township’s largest business. In the complaint, it was alleged that Francis has viciously attacked African Americans in print, posting racist messages on social media, and manipulating the Planning Commission to delay Shavers’ plans, all the while approving similar plans of white property owners.
Suffice to say, Shavers got off on the wrong foot immediately with the Planning Commission, for no fault of his own. This led to a series of interactions where the Planning Commission punished Shavers by coming up with trivial deficiencies in his plans in order to stall his project. Other proposals for pole barns went through the Planning Commission in a single meeting, even though they had the same (or lesser) alleged deficiencies as Shavers. But Shavers’ pole barn took five meetings and seven months to get approval. As a result of the delay, Shavers lost that valuable contract, incurring significant economic harm entirely because of Almont Township’s malicious and deliberate course of conduct.
The discrimination and differential treatment that Shavers was subjected to can be seen at almost every turn in his site plan review process, but most indicative is simply the undisputed fact that it took more than five (5) Commission meetings for Shavers to break through the barrier of Defendants’ baseless delays.
The disparate treatment is properly summarized by Tammy Foster, the engineer who worked with Ray Shavers, as follows:
- Shavers sought the Township’s approval for the construction of an approximately 9,900 square foot pole barn for commercial purposes.
- The subject site for the proposed pole barn is zoned Industrial and is a little over 4 acres
- Similar to Shavers’ property and Site Plan, Vintech’s site plan sought approval for the construction of an approximately 10,000 square foot pole barn.
- The Vintech property is zoned Industrial and is located less than a mile away from Shavers’ property.
- Both sought similar approvals for similar buildings, on similarly zoned property, with similar characteristics, during nearly the same time period.
- Both properties also and preexisting buildings and parking areas.
- During the site plan approval process for Vintech, the Township’s engineering and planning professionals (Davis and Rowe) cited several issues with the application plans, including the following: absence of a photometric plan for proposed lighting; failure to indicate the location of a dumpster or method of trash disposal; noncompliance with the setback requirements; absence of a greenbelt; failure to show a current access easement; failure to provide soil borings; and the proposed grading plans show surface runoff leaving the site, among other issues.
- On February 14, 2018, the Township held its first Planning Commission meeting on Vintech’s site plan application and voted to conditionally approve Vintech’s site plan application subject to Vintech addressing some of the issues cited by Davis.
- However, during the site plan approval process for Shavers, Davis cited many of the same issues with his plans as were cited during Vintech’s site plan approval process (absence of a photometric plan for proposed lighting; failure to indicate the location of a dumpster or method of trash disposal; noncompliance with the setback requirements; absence of a greenbelt; failure to show a current access easement; failure to provide soil borings; and the proposed grading plans show surface runoff leaving the site, among other issues).
- Despite having the same alleged issues as Vintech’s plans, Shavers did not receive conditional approval of his site plan application until seven months after submitting his application to the Planning Commission.
- Novak built a similar pole barn that Shavers proposed without permits and zoning approval and the Township allowed him to do so without any type of repercussions.
- Francis built structures on his property that were used in a manner against the zoning and building code approvals, and were the subject of “many, many, many, many” complaints that went unaddressed.
Shavers has demonstrated animus. Lloyd’s email to the Planning Commission noting that, “Mr. Shavers is in deep trouble with the Township at this moment,” and the Planning Commission delaying the approval of a site plan for seven months all the while knowing that Shavers would lose out on the ability to earn $3,000,000 on a business opportunity is just a sample of the evidence supporting animus. This, coupled with the bigoted Steve Francis leading the Planning Commission in its charge against Ray Shavers, is ample evidence of animus and bias.
Time will tell if Ray Shavers will have his day in Court. The United States District Court found that all of the above evidence was not enough facts to establish a claim to allow the case to go to trial. We have appealed the decision and the case is now being considered by the Sixth Circuit Court of Appeals.
Race plays a significant place in our lives and played a crucial role in Ray Shavers life. While others were allowed to build identical buildings in one meeting, and another simply built a similar building without any permits or approvals and no action was taken, Ray Shavers lost his ability to do the same. The only difference between Ray (who was denied) and the others (who were approved) is the color of his skin.
This discrimination must end.
We are committed to the Shavers case and look forward to having a jury evaluate this case one day. If you have a matter involving race, land use and zoning, please contact Daniel Dalton at Dalton & Tomich PLC to discuss and review your matter.