                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0323n.06
                                                                                     FILED
                                        No. 10-3252
                                                                                 May 16, 2011
                         UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT


RAFAEL MARDEROSIAN, et al.,                    )
                                               )
       Plaintiffs-Appellants,                  )
                                               )
v.                                             )   ON APPEAL FROM THE UNITED
                                               )   STATES DISTRICT COURT FOR THE
CITY OF BEAVERCREEK, et al.,                   )   SOUTHERN DISTRICT OF OHIO
                                               )
       Defendants-Appellees.                   )




       Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.


       MARTHA CRAIG DAUGHTREY, Circuit Judge. A group of citizens, the plaintiffs

here, filed this action against the City of Beavercreek, Ohio, claiming that their rights under

the First and Fourteenth Amendments were violated when the City used an administrative

process to modify a zoning ordinance permitting the expansion of a local Walmart store.

The crux of the plaintiffs’ complaint was that in failing to use a legislative process that

would have permitted a public referendum, the City denied them the right to a referendum

and to petition for the redress of grievances under the First Amendment and deprived them

of certain liberty interests without due process of law, in violation of the Fourteenth

Amendment. The district court granted summary judgment to the City, finding that the

plaintiffs had not identified a liberty interest sufficient to support their due process claims

and that the city council’s action did not impermissibly burden an already-existing right to
No. 10-3252
Marderosian, et al v. City of Beavercreek, et al

referendum for purposes of the First Amendment. We find no basis on which to overturn

the district court’s decision and, therefore, we affirm.


       In December 1991, the Beavercreek City Council adopted Ordinance No. 91-63,

which changed the zoning designation of a 47-acre piece of property from agricultural to

commercial with the following provisions:


       The total square footage of buildings and structures allowed to be
       constructed in Stage I of the development shall not exceed 232,000 square
       feet.
       A total of 204,600 square feet of additional building and structures shall be
       allowed to be constructed in Stage II of the development.
       Specific site plan approval and zoning permit approval for Stage II will not be
       granted by the City until access from north Fairfield Road to the 47.3 acre
       development can be provided in a manner and design that is acceptable to
       the City.


In September 1992, the planning commission approved a site plan for Stage I of the

development, and a Walmart and a Sam’s Club were both constructed on the property in

accordance with the specifications contained in Ordinance 91-63.


        In 1999, Walmart requested permission from the City to expand its store, in order

to have the additional space necessary to offer groceries at the location. In response to

this request, the city attorney submitted an opinion to the council suggesting that an

expansion would violate Ordinance 91-63 because the building would then exceed the

square-footage limitations. Thus, he concluded that in order to allow the expansion, it



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would be necessary to amend Ordinance 91-63 legislatively. The council subsequently

rejected Walmart’s proposal.


        In November 2006, Walmart once again sought to expand its store, this time

through a request for a major modification to the original site plan, by adding 56,841

square feet to the existing Walmart building and 4,021 square feet to the Sam’s Club

building. In contrast to the previous opinion issued in response to the 1999 application

for expansion, the City’s lawyer concluded in response to the new application that the

expansion could go forward with only administrative approval. This opinion was based on

his review of the history of Ordinance 91-63, which he read to mean that the square-

footage limits included in the ordinance were pertinent only until additional road access

to the site was established. Because this access had already been secured, the city

attorney concluded that the square-footage limits were no longer controlling and that the

matter could be handled administratively.


        As a result, the planning commission voted to recommend approval of the request

for expansion and scheduled a public hearing on Walmart’s request for a major

modification. At the hearing, the city council denied a motion to handle the request

legislatively and invoked an administrative process to approve the major modification by

a vote of 5-2.


        The plaintiffs in this case then filed suit in district court, seeking a declaratory

judgment that the City’s actions violated their rights under the First, Fifth, and Fourteenth

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Amendments to the United States Constitution, as well as seeking damages and

attorneys’ fees pursuant to 42 U.S.C. §§ 1983 and 1985. Additionally, they included a

state law claim, alleging that the City’s administrative approval of the modification was an

ultra vires act. On motion by the City, Walmart was joined as a defendant to the action.

On cross-motions for summary judgment, the district court ruled that the defendants were

entitled to summary judgment on the plaintiffs’ First Amendment and Due Process claims

and dismissed the plaintiffs’ state law claim without prejudice.


        On appeal, the plaintiffs contend that the City’s decision to approve Walmart’s

request for a major modification administratively denied the plaintiffs their right to

constitutional due process. The Due Process Clause of the Fourteenth Amendment

states, in pertinent part, that, “n[o] State [shall] deprive any person of life, liberty, or

property, without due process of law.” U.S. CONST . amend. XIV, § 1. The constitutional

inquiry is composed of two discrete steps: determining, first, whether there is a protected

liberty or property interest at issue and, if so, whether a state actor has deprived the

plaintiff of that right in a manner that contravenes notions of due process. See Wojcik v.

City of Romulus, 257 F.3d 600, 609 (6th Cir. 2001).


        For purposes of substantive due process claims, a liberty interest is one that is “so

rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Patterson v. New York, 457 U.S. 197, 201-02 (1977). The plaintiffs here argue that their




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state-created right to referendum meets this standard and is thus a constitutionally-

protected liberty interest for purposes of fulfilling the first part of the due process inquiry.


        The Supreme Court has repeatedly noted the importance of referendum rights as

a democratic tool. See City of Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 678

(1976) (“A referendum, however, is far more than an expression of ambiguously founded

neighborhood preference. It is the city itself legislating through its voters an exercise by

the voters of their traditional right through direct legislation to override the views of their

elected representatives as to what serves the public interest.” (quoting So. Alameda

Spanish Speaking Org. v. Union City, California, 424 F.2d 291, 294 (1970))). The

Supreme Court has never held, however, that any particular right to referendum is

guaranteed under federal law and, indeed, we have held to the contrary. See Taxpayers

United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) (finding that the

Constitution does not require a state to have any sort of ballot-initiative procedure).


        Moreover, the Supreme Court has held that a violation of substantive due process

will be found only where the actions of the state “can properly be characterized as

arbitrary, or conscience shocking, in a constitutional sense.” Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 847 (1998). Simply put, the actions of the City in the present case

do not meet this high standard. Although some members of the city council expressed

doubt about the proposed procedure, they took action only after a period of debate and




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deliberation. We thus conclude that the council did not proceed in a manner that “shocks

the conscience” in violation of substantive due process.


        Nor can the plaintiffs establish a deprivation of their right to procedural due

process. That inquiry generally focuses on whether there existed adequate notice and an

opportunity for the affected parties to be heard prior to the state action at issue. See

Hussein v. City of Perrysburg, 617 F.3d 828, 832 (6th Cir. 2010) (citing Bd. of Regents v.

Roth, 408 U.S. 564, 570 n.7 (1972)). The record before us shows that there was, in fact,

a public hearing at which the plaintiffs’ request that the modification be subjected to a

referendum was heard, debated, and ultimately denied. Speaking hypothetically, we

conclude that even if the plaintiffs could show the existence of a liberty interest in a

state-created right to referendum, in the present case they were afforded the necessary

process before being deprived of that alleged right when the City held a public hearing at

which they were able to state their views.


        As to the First Amendment claim, the plaintiffs allege that the City Council’s actions

violated their right to be free from overly restrictive conditions placed on the referendum

process and their right to petition the government for redress of grievances. But, as noted

above, there is no federal or constitutional right to the referendum process, although the

Supreme Court has found that the right to free-speech encompasses a right to be free of

overly restrictive conditions on the exercise of established referendum rights. See

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 191-92 (1999) (“[T]he First


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Amendment requires us to be vigilant in making those judgments [distinguishing between

valid ballot-access provisions and invalid interactive speech restrictions], to guard against

undue hindrances to political conversations and the exchange of ideas.”).


        Unlike the successful plaintiffs in Buckley, the plaintiffs here do not claim that their

right to participate in a referendum has been impermissibly burdened – and cannot do so,

because the citizens of Beavercreek had no right to referendum unless the council

decision to adopt the zoning proposal was handled legislatively. By acting administratively

rather than legislatively, the council ensured that a right to referendum never arose.

Whether the council was correct in its decision to treat the zoning modification as an

administrative manner is a question of state – not constitutional – law. In sum, the

plaintiffs simply cannot challenge a restriction on their right to referendum when, under the

facts of the case, no legislative act ever occurred and thus no right to referendum ever

existed.


        Furthermore, the present case is factually dissimilar from cases, such as Buckley,

in which the Supreme Court has found a burden on referendum rights that implicates the

First Amendment. In such cases, the plaintiffs challenged legislation that according to its

own language directly regulated or limited the referendum process. See id. at 199-200

(striking down a Colorado statute that required petition-circulators to wear identification

badges); Meyer v. Grant, 486 U.S. 414 (1988) (holding invalid a Colorado statute that

prohibited payment for the circulation of ballot-initiative petitions). In this case, by


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contrast, the plaintiffs do not challenge a limitation on their referendum rights but, instead,

challenge approval of the zoning modification as an administrative act. Of course, the

plaintiffs are correct in their assertion that if the city had acted legislatively, the plaintiffs

could have asserted their right to referendum. The City’s actions, however, did not in any

way directly affect the referendum rights of the plaintiffs.


        We thus hold, for the reasons set out above, that the district court did not err in

granting summary judgment to the defendants on the plaintiffs’ constitutional claims. The

district court also dismissed without prejudice the plaintiffs’ state-law claim that the zoning

modification in dispute constituted an ultra vires act, a decision that the plaintiffs have

apparently waived on appeal, given a merely perfunctory allusion to the issue in the their

brief in this court. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997). In

any event, the record fails to show that the district court abused its discretion in declining

to retain jurisdiction over the plaintiffs’ state-law claim.


        AFFIRMED.




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