               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0520n.06

                                         No. 17-3358

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                              Oct 19, 2018
 WAYNE WATSON ENTERPRISES, LLC           )                               DEBORAH S. HUNT, Clerk
 and WAYNE W. WATSON,                    )
                                         )
        Plaintiffs-Appellants,           )                ON APPEAL FROM THE
                                         )                UNITED STATES DISTRICT
 v.                                      )                COURT FOR THE SOUTHERN
                                         )                DISTRICT OF OHIO
 CITY OF CAMBRIDGE and JEFFREY )
 MCCONAUGHY, Director City of Cambridge, )
 Engineering and Utilities,              )                        OPINION
                                         )
        Defendants-Appellees.            )
                                         )


Before: SUHRHEINRICH, MOORE, and BUSH, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. This case is about a proposal to lay a few

yards of concrete, which would create an “access road,” over a public right-of-way that fronts a

car wash and a Wendy’s Restaurant. The proposed “road” would sit entirely within the public

right-of-way. But this proposal could potentially increase traffic in front of Plaintiff Wayne

Watson’s car wash, due to Wendy’s customers coming and going. And that’s where the beef is in

this case. Watson argues that the City and this plan to create the access road violate his

constitutional rights. We disagree.

       The district court issued a thorough opinion and entered summary judgment for the City of

Cambridge and its City Engineer. For the reasons that follow, we AFFIRM.
No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


                                       I. BACKGROUND

       Wayne Watson is the owner and sole member of Wayne Watson Enterprises, LLC

(hereinafter, collectively referred to as “Watson”). R. 27-12 (Watson Dep. at 5–6) (Page ID #708–

09). Watson owns two parcels of land, where he operates a car wash business, along State Route

209 in the City of Cambridge, Ohio. Id. at 7; R. 16 (Am. Compl. at 2) (Page ID #265). Both

parcels are fronted by an “81.16” feet public right-of-way. R. 26-3 (1986 Survey Plat) (Page ID

#483); R. 26-4 (1990 Survey Plat) (Page ID #485). A Wendy’s Restaurant is next door. The

restaurant is separated from Watson’s property by grass and a small barrier (and thus cars cannot

drive directly from the Wendy’s to the car wash without going onto Route 209). See R. 25-2

(Wilcox Decl. Ex. A) (Page ID #403); R. 29-1 (Myers Report) (Page ID #1008). At the head of

Watson’s parcel situated nearest to the Wendy’s sits a traffic light, which permits his customers to

make a protected left turn onto Route 209. See R. 25-2 (Wilcox Decl. Ex. A) (Page ID #401–03).

       In the fall of 2014, the Wendy’s operators submitted a site plan for a proposed demolition

and reconstruction of the restaurant to the City of Cambridge. R. 26-7 (Sherry Aff.) (Page ID

#495). This plan included a proposed connection of the right-of-way, which would allow Wendy’s

customers to make the protected left turn. Id. This proposed connection is referred to as the

“access road.”

       At a public meeting on Wednesday, October 29, 2014, the Cambridge City Council

approved Ordinance 50-14, which authorized the “construction of an access road at no cost to the

City by a private contractor. Said construction is to be inspected and the project to be over seen

[sic] by the City Engineers Department. The project will be located on Southgate Parkway, in the


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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


vicinity of Wendy’s Restaurant.” R. 16 (Ex. C, Ordinance No. 50-14) (Page ID #298). Watson

received no direct notice of this council meeting and did not attend the meeting. At an October 6

meeting of the City Services Committee, however, the City’s Director of Engineering and Utilities,

Paul Sherry,1 acknowledged that he thought “there will be some push back from Mr. Watson.” Id.

(Ex. A, Meeting Minutes) (Page ID #288).

       Several months later, on February 9, 2015, Sherry sent Watson a letter notifying Watson

that the City approved the access road “to be completed in conjunction with the reconstruction of

the Wendy’s restaurant.” R. 16 (Ex. D) (Page ID #299). The letter continued, “The goal is to

create a safer northbound egress option from these businesses via the signal at Woodlawn Ave.

Southbound traffic will still have the existing access points at each business.” Id. The stated goal

is consistent with Sherry’s comments during the October 6 City Services Committee meeting. Id.

(Ex. A, Meeting Minutes) (Page ID #288). The letter also attached the proposed plans for the

project. Id. (Ex. E) (Page ID #301).

       Four months after that, at a public meeting on June 8, 2015, the City Council passed

Ordinance 38-15, which authorized “the establishment of access roads in the City of Cambridge.”

R. 16 (Ex. H, Ordinance No. 38-15) (Page ID #310). This ordinance also authorized the City

Engineer (at that time, Paul Sherry) to develop guidelines for the construction of access roads. Id.

Watson’s Amended Complaint states that Watson attended this meeting himself and, through his




       1
           Paul Sherry is no longer the City Engineer; Jeffrey McConaughy has since replaced Sherry.


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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


attorney, voiced his concerns about the access road to no avail. R. 16 (Am. Compl. at 10, ¶ 55)

(Page ID #273).2 Thus, the project moved forward.

        Watson has several concerns with this access road. From a process perspective, Watson

argues that he should have received individual advance notice of the October meeting at which the

City Council passed Ordinance 50-14, the approval of that ordinance was arbitrary, and the

Council then “abdicated its statutory responsibilities” over roads to the City Engineer with

Ordinance 38-15. R. 16 (Am. Compl. at 2) (Page ID #265). As to the substance, Watson argues

that the ordinances are unconstitutionally vague and that the access road will destroy his business

and pose a public safety hazard. See, e.g., id. at 8–9, 13–14 (Page ID #271–72, 276–77); Appellant

Br. at 21.

        Due to his concerns, Watson filed suit in state court against the City of Cambridge and

Sherry (hereinafter collectively referred to as, “the City”). There, he obtained a temporary

restraining order and a preliminary injunction that halted the project. Then, the City removed the

case to the United States District Court for the Southern District of Ohio pursuant to 28 U.S.C.

§§ 1331, 1441, 1446. Both parties filed cross-motions for summary judgment in the district court,

and the district court granted the City’s motion. Wayne Watson Enters., LLC v. City of Cambridge,

243 F. Supp. 3d 908 (S.D. Ohio 2017).




        2
         But Watson also stated in his deposition that he did not attend any meetings and did not know what
opportunity his attorney had to express concerns about the project. R. 27-12 (Watson Dep. at 80–81) (Page ID #783–
84).


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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


                                II. STANDARD OF REVIEW

       We review a grant of summary judgment de novo. Med Corp. v. City of Lima, 296 F.3d

404, 408 (6th Cir. 2002). Summary judgment is appropriate if, viewing the evidence in the light

most favorable to the nonmoving party, “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Adickes v. S.H. Kress &

Co., 398 U.S. 144, 157 (1970). Initially, the moving party bears the burden of “demonstrating that

the nonmoving party lacks evidence to support an essential element of its case.” Pack v. Damon

Corp., 434 F.3d 810, 813 (6th Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

(1986)). Then the nonmoving party must point to evidence that shows there is more than some

metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986); Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).

                III. PROCEDURAL AND SUBSTANTIVE DUE PROCESS

       Watson raises three issues on appeal, all of which sound in due process. The first two

arguments relate to procedural and substantive due process. He further argues that the City

Ordinances that authorized the access road are unconstitutionally vague.

       The Fourteenth Amendment provides that no State shall “deprive any person of life, liberty,

or property, without due process of law.” U.S. CONST. amend. XIV, § 1. Watson’s arguments on

both procedural and substantive due process raise the question of whether he has a constitutionally

protected property interest. See Wedgewood Ltd. P’ship I v. Township of Liberty, 610 F.3d 340,

349 (6th Cir. 2010); Silver v. Franklin Twp. Bd. of Zoning Appeals, 966 F.2d 1031, 1036 (6th Cir.

1992). Even if Watson has a protected property interest, he must show that the government


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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


deprived him of that interest. See Wedgewood, 610 F.3d at 349; Warren v. City of Athens, 411 F.3d

697, 707 (6th Cir. 2005). Watson cannot make such a showing, so both of his due process claims

fail.

A. Procedural and Substantive Due Process

        Both procedural and substantive due process claims require Watson to show that he has a

property interest that was deprived. To establish a procedural due process violation under

42 U.S.C. § 1983, plaintiffs must show: “(1) that they have a life, liberty, or property interest

protected by the Due Process Clause of the Fourteenth Amendment . . ., (2) that they were deprived

of this protected interest within the meaning of the Due Process Clause, and (3) that the state [or

here, the City] did not afford them adequate procedural rights prior to depriving them of their

protected interest.” Med Corp., 296 F.3d at 409 (quoting Hahn v. Star Bank, 190 F.3d 708, 716

(6th Cir. 1999)); Wedgewood, 610 F.3d at 349. To succeed on his substantive due process claim,

Watson must show that an “arbitrary and capricious government action deprive[d] [him] of a

constitutionally protected property interest.” Warren, 411 F.3d at 707.

        Property interests “are not created by the Constitution” itself, but rather “they are created

and their dimensions are defined by existing rules or understandings that stem from an independent

source such as state law.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972); see also Hamilton v.

Myers, 281 F.3d 520, 529 (6th Cir. 2002). Watson claims that he has property interests in the use

and enjoyment of his property, the safe operation of his business, and in safe access to and from

the car wash. Appellant Br. at 24; Reply Br. at 13–16. Here, we look to Ohio state law to determine

whether he has property interests at stake.


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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


        Although the Ohio Supreme Court has recognized Watson’s claimed property interests at

a high-level of generality, his arguments do not hold up on the facts of this case. First, the Ohio

Supreme Court has explained that, “[t]he rights related to property, i.e., to acquire, use, enjoy, and

dispose of property, are among the most revered in our law and traditions.” City of Norwood v.

Horney, 853 N.E.2d 1115, 1128 (Ohio 2006) (internal citation omitted). This language, however,

is not applicable to this case because the public right-of-way is not Watson’s property to use or

enjoy, and the proposed access road sits entirely within that public right-of-way.3

        Second, the Ohio Supreme Court has also stated that “the right to do business” is “equally

sacred” as free speech, “and the privilege of free speech cannot be used to the exclusion of other

constitutional rights nor as an excuse for unlawful activities with another’s business.” Eastwood

Mall, Inc. v. Slanco, 626 N.E.2d 59, 61 (Ohio 1994) (quoting Crosby v. Rath, 25 N.E.2d 934, 935

(Ohio 1940)). But again, the cases on which Watson relies are not on point. The City has not

imposed a regulation on Watson or limited his business operations.

        Third, Ohio recognizes a private right of access, for the purposes of ingress and egress,

from private property to a public road. See State ex rel. Merritt v. Linzell, 126 N.E.2d 53, 55–56

(Ohio 1955). The Ohio Supreme Court has held that, “any governmental action that substantially

or unreasonably interferes with this right constitutes a taking of private property” that requires just




        3
        See R. 26-3 (1986 Survey Plat) (Page ID #483); R. 26-4 (1990 Survey Plat) (Page ID #485); R. 26-5 (Deed
to Wayne Watson, Parcel No. 06-08215.001) (Page ID #487); R. 26-6 (Deed to Wayne Watson, Parcel No. 06-
08215.002) (Page ID #491); see also R. 16 (Ex. E, Access Road Plan) (Page ID #301); see also R. 17-3 (Answer to
Am. Compl., Ex. 3) (Page ID #342) (highlighted area showing that the access road sits within the right-of-way).


                                                      7
No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


compensation. State ex rel. OTR v. City of Columbus, 667 N.E.2d 8, 15 (Ohio 1996). But at the

same time,

                Mere circuity of travel, necessarily and newly created, to and from real
        property does not of itself result in legal impairment of the right of ingress and
        egress to and from such property, where any resulting interference is but an
        inconvenience shared in common with the general public and is necessary in the
        public interest to make travel safer and more efficient.

Merritt, 126 N.E.2d at 56. This case does not concern a taking—Watson seeks to stop the access

road’s construction, not just compensation—but Merritt and OTR nonetheless help clarify the

contours of the property interest at stake. In short, if Watson’s and his customers’ access to and

from his business via the public right-of-way were “substantially impaired,” he would have a

property interest at stake; on the other hand, if the access road merely made travel inconvenient,

that would not trigger this property interest. Compare Warren, 411 F.3d at 709–12 (upholding an

injunction based on a city “erecting barricades across one of the two means of access to” an ice

cream shop), with Richley v. Jones, 310 N.E.2d 236, 236–40 (Ohio 1974) (construction of a median

strip caused an inconvenience to a landowner, but not loss of access, and thus the landowner

received no compensation).

        This is a case of possible inconvenience, not an impairment of a property interest.

Watson’s properties do not extend into the public right-of-way,4 even though he may feel

otherwise. R. 27-12 (Watson Dep. at 110–11) (Page ID #813–14). But Watson has a property

interest in access to the public right-of-way. That leads to the most important point: It is

        4
        R. 26-3 (1986 Survey Plat) (Page ID #483); R. 26-4 (1990 Survey Plat) (Page ID #485); R. 26-5 (Deed to
Wayne Watson, Parcel No. 06-08215.001) (Page ID #487); R. 26-6 (Deed to Wayne Watson, Parcel No. 06-
08215.002) (Page ID #491).


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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


undisputed by Watson himself and one of his experts that, if this road is built, customers will not

be blocked from accessing his business from either State Route 209 or the public right-of-way. Id.

at 63–64, 68–69 (Page ID #766–67, 771–72); R. 29 (Myers Dep. at 51–52) (Page ID #999–1000).

The upshot is that, to the extent Watson has a property interest at stake, that interest has not been

diminished within the meaning of the Due Process Clause based on the facts in this record.

        Watson and his experts,5 however, contend the access road poses an increased danger to

employees and customers. As to the employees, one expert’s photos of the car wash show that the

employees are in the public right-of-way. See R. 29-1 (Myers Report) (Page ID #1011); Survey

Plats and Deeds, supra footnote 3. As to the customers, one expert claims that “[s]team and

condensation may and will occur, especially during the winter months,” which will in turn lead to

decreased visibility. R. 29-1 (Myers Report) (Page ID #1012). This supposed safety concern has

nothing to do with the access road—if steam and condensation block a driver’s view, driving would

be dangerous regardless of the access road. Watson’s expert further explained that his conclusions

on the safety concerns were based on drivers’ ability to pick either of the exits fronting Watson’s

properties, R. 29 (Myers Dep. at 26, 34–39) (Page ID #974, 982–87), and his experience in law

enforcement observing aggressive drivers (who would bypass the protected-left exit). Id. at 34–

35 (Page ID #982–83). But the expert also admitted that, to date, the traffic arrows in place have

been sufficient to guide drivers, id. at 31–32 (Page ID #979–80), a traffic signal “definitely makes




        5
          We will focus Myers’s report and deposition. The Wilcox declaration is a one page report, along with
attached pictures, and it summarily concludes that Watson’s property will need to be redeveloped because of this
access road. See R. 25-2 (Wilcox Decl.) (Page ID #400).


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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


it safer” to turn into an intersection, id. at 39 (Page ID #987), and that if Wendy’s customers chose

to exit at the light, that would present no safety risk to anyone leaving the car wash. Id. at 48 (Page

ID #996). For his part, Watson fears that all drivers will go to the light, R. 27-12 (Watson Dep. at

75) (Page ID #778), Wendy’s customers will cause problems when they drop hamburgers on their

laps, id. at 108 (Page ID #811), and the resulting congestion will destroy his business. Id. at 96

(Page ID #799).

       This evidence is simply not enough to raise more than a metaphysical doubt as to whether

Watson’s property interests will be deprived. If there were more than an abstract claim that

Watson’s customers were in fact going to be turned away from the car wash business because of

the possible congestion and hazards caused by the access road, this case might be different; or if

Watson and his customers were in fact blocked from accessing his business, this case might be

different. In those situations, Watson’s and his customers’ access to and from the business would

be hindered such that the creation of the access road might deprive Watson of a property right of

ingress and egress under Ohio law, see Merritt, 126 N.E.2d at 55–56, and perhaps his right to do

business, see Eastwood Mall, 626 N.E.2d at 62. But because the right-of-way is not part of

Watson’s property, and because any property interests he does have will not be deprived, Watson

received all the process he was due through the general public notice of the city council meeting.

Accordingly, we conclude that Watson’s procedural and substantive due process claims fail.

       Because Watson has no property interest that is being deprived, we need not address his

separate argument that the City’s approval of the access road was a “random and unauthorized

act.” R. 16 (Am. Compl. at 15) (Page ID #278). Moreover, for the same reason, we need not


                                                  10
No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


analyze whether Watson can meet his burden on the rational basis standard for whether the City’s

actions were “arbitrary and capricious.” Pearson v. City of Grand Blanc, 961 F.2d 1211, 1221–

22 (6th Cir. 1992).

B. Void for Vagueness

       Finally, Watson challenges Ordinances 50-14 and 38-15 as unconstitutionally vague. This

challenge also misses the mark. As a threshold matter, because this case does not involve First

Amendment overbreadth, Watson “has standing to raise a vagueness challenge only insofar as the

statute is vague as applied to his . . . specific conduct.” Columbia Nat. Res., Inc. v. Tatum, 58 F.3d

1101, 1109 n.6 (6th Cir. 1995) (quoting United States v. Pungitore, 910 F.2d 1084, 1104 (3d Cir.

1990)). Due process mandates that laws governing conduct “must give an adequate warning of

what they command or forbid.” Diebold, Inc. v. Marshall, 585 F.2d 1327, 1335 (6th Cir. 1978).

       Of course, these ordinances do not regulate Watson’s conduct in any way. As the district

court recognized, the cases Watson cites all involve criminal prohibitions and regulatory schemes.

See Wayne Watson Enters., 243 F. Supp. 3d at 926 (collecting cases); Appellant Br. at 41–42. In

his reply brief, Watson also relies on cases where plaintiffs challenged zoning ordinances. See,

e.g., Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 835 (6th Cir. 2004); Wedgewood Ltd.

P’ship I v. Township of Liberty, 456 F. Supp. 2d 904, 927 (S.D. Ohio 2006). These cases prove

the point. First, Brandywine held that the plaintiffs had standing only for their First Amendment

vagueness and overbreadth challenges. 359 F.3d at 835. Second, and more generally, zoning

ordinances regulate what a business may or may not do. Here, the Ordinances simply permit




                                                 11
No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


access roads and the creation of this particular access road over a public right-of-way. Thus,

Watson’s vagueness challenge fails.

                                      IV. CONCLUSION

        Perhaps the City should have had the courtesy to inform Mr. Watson earlier than it did

about this access road. The City Engineer acknowledged Mr. Watson would have pushback on

the proposal—and push back he did. Especially in local government, which sits closest to the

people, listening to such grievances is often a fundamental aspect of delivering quality service.

But the bottom line remains: Based on the facts of this case, Watson has not been deprived of a

property interest nor has he been subjected to any vague law within the meaning of the Due Process

Clause of the Fourteenth Amendment. For the foregoing reasons, we AFFIRM the judgment of

the district court.




                                               12
No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


       JOHN K. BUSH, Circuit Judge, concurring. I agree with the majority opinion but write

separately to address a point that is a small one here but which may be significant in another case.

       The majority affirms summary judgment on the due-process-property-deprivation claims

because there is no evidence Watson was deprived of a constitutionally protected property interest.

See Majority Opinion at 10. The majority correctly concludes that there was no property

deprivation because the City did not (1) physically interfere with Watson’s property; (2) interfere

with his right to do business; or (3) interfere with his right of access to his property. See id. at 7.

The majority opinion implies that categories (1)–(3) encompass all of the sticks in Watson’s

property-rights bundle under Ohio law. But there is also a category (4) that Ohio recognizes—a

property right known as an “intangible interest in the premises.” State ex rel. OTR v. City of

Columbus, 667 N.E.2d 8, 12 (Ohio 1996); McKee v. City of Akron, 199 N.E.2d 592, 594–95 (Ohio

1964), overruled on other grounds by Haverlack v. Portage Homes, Inc., 442 N.E. 2d 749 (Ohio

1982); McNamara v. Rittman, 838 N.E.2d 640, 645 (Ohio 2005). The omission of category

(4) from the majority opinion’s analysis is not consequential in this case, for (as the district court

held) Watson has no evidence of any intangible interest of which he was deprived. See Wayne

Watson Enters., LLC v. City of Cambridge, 243 F. Supp. 3d 908, 921 (S.D. Ohio 2017) (collecting

cases to demonstrate that the City has not interfered with Watson’s intangible interest in his

property recognized by Ohio). But intangible-interest rights could be implicated in another case

applying Ohio law, and therefore those rights should also be acknowledged with other property

rights in our statement of the law here.




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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


          The Ohio Supreme Court has not fully developed and defined all that is encompassed by a

property owner’s “intangible interest in the premises.” But we do know from McKee v. City of

Akron that “[p]hysical displacement is not always necessary” to interfere with an individual’s

protected property interests. 199 N.E.2d at 594. Indeed, the Ohio Supreme Court reiterated this

principle in OTR: “[A]n interference [with a property interest] may involve the actual physical

taking of real property, or it may include the deprivation of an intangible interest in the premises.”

667 N.E.2d at 12. This principle of Ohio law reaches the government’s improvements on its own

land that do not physically intrude upon a person’s property but intrude upon the person’s

intangible property rights. See, e.g., McNamara, 838 N.E.2d at 645–46 (finding a taking where a

city’s groundwater wells, while drilled on its property, deprived private property owners of an

intangible property interest in their ground water); Smalley v. Ohio Dep’t of Transp., 869 N.E.2d

777, 780, 783 (Ohio Ct. Cl. 2007) (finding a taking where Ohio’s interstate lights, while on

government property, interfered with a farmer’s property interests because the lights damaged his

crops).

          In this case, therefore, we should consider not only whether the City has physically

interfered with Watson’s property and whether there has been any interference with his right to do

business and right of access. We should also consider, as did the district court, whether there has

been any interference with any of Watson’s intangible property interests. Because Watson has no

evidence that the City has interfered with any of his property rights recognized under Ohio law,

Watson has not been deprived of any interest (tangible or intangible) in his property. It is with this




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No. 17-3358, Wayne Watson Enterprises, LLC et al. v. City of Cambridge et al.


understanding, and also based on the reasons stated in the majority opinion, that I respectfully

concur.




                                              15
