Whether a city’s denial of a permit for a marijuana distribution facility violated plaintiff’s due process rights under the Fourteenth Amendment; Whether plaintiff established “a deprivation of property”; Whether the permit denial violated plaintiff’s equal protection rights

[This appeal was from the ED-MI.] The court affirmed summary judgment for defendant-City of Detroit as to plaintiff-Green Genie’s constitutional claims arising from the denial of a marijuana distribution center permit. It concluded plaintiff could not show it was deprived of a “protected property interest” to support its due process claim and that it did not establish its equal protection rights were violated through discrimination. The City denied the permit because the proposed center was in an area defined in the City code as a “drug-free zone,” a location “‘within 1,000 radial feet of the zoning lot’ containing any one of a number of sensitive places, including a school.” Plaintiff alleged the City erred in measuring the distance from a school, yet approved other sites for marijuana distribution that were within the zone. The court first considered whether plaintiff could establish the necessary deprivation of property to support a due process claim. It held that it could not where “a government benefit, such as a permit, is not a protected entitlement if officials ‘may grant or deny it in their discretion.’” Plaintiff argued the City’s code required it to transfer applications that met the general requirements to the “Review Committee” for consideration. But the court noted that “a plaintiff may not ‘assert a property right in government procedures themselves.’” In this case, plaintiff’s “request to be heard by a special committee is little more than an interest in ‘a procedure itself, without more.’” Thus, its due process claim was properly dismissed. As for its equal protection claim, plaintiff argued the City discriminated against it by intentionally treating it “differently from others similarly situated without any rational basis for the difference[,] . . . a class-of-one claim.” But to prevail on such a claim, plaintiff had to show “the City ‘intentionally treated’ Green Genie ‘differently from others similarly situated[.]’” Plaintiff was required to show “‘an inference’ of intentional discrimination ‘arising from the fact’ that the adverse treatment of Green Genie ‘was such a stark outlier from an otherwise consistent pattern of favorable treatment in similarly situated cases.’” Plaintiff claimed the City “used a different method of measurement when evaluating” its application than it used for other facilities. However, the City offered evidence it used the same method for all applicants and several other comparators were denied permits for the same reason. While other facilities were granted permits based on “‘sloppy administration’ of its permitting system and ‘misapplication of . . . local law’” this was not enough to establish an equal protection violation.