Bunnell Hill Development Co., Inc., Tractor Supply Company v. Bay County Road Commission

*The Honorable Lesley Wells, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 04-1125
File Name: 05a0109n.06
Filed: February 14, 2005
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BUNNELL HILL DEVELOPMENT CO.,
INC., TRACTOR SUPPLY COMPANY, and
1515 MANAGEMENT CO., INC.,
Plaintiffs-Appellees,
v.
BAY COUNTY ROAD COMMISSION,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN
Before: NELSON and SUTTON, Circuit Judges, and WELLS, District Judge. *
DAVID A. NELSON, Circuit Judge. This is an appeal from a final judgment
declaring that the Bay County Road Commission lacks authority to revoke a driveway permit
when there has been a change in the use of the property served by the driveway. The
judgment prohibits the Commission from closing a commercial driveway over which the
plaintiffs hold an easement.
The basis for the district court’s ruling was that Michigan law allows revocation of
a driveway permit only “pursuant to duly enacted rules” and that the Commission had not

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No. 04-1125
Page 2
promulgated any rule “authoriz[ing] it to revoke a duly-issued driveway permit simply
because there has been a change in use . . . or an increase in traffic flow to the site.”
At the appellate argument, however, the parties informed the court that the
Commission has now promulgated a rule requiring property owners to obtain a new driveway
permit when there has been a change in the use of the property served by the driveway. The
new rule, adopted on December 22, 2004, defines “change in use” to include “additional
access to another commercial property from/through a previously permitted driveway.”
The new rule raises a substantial question as to whether this case has become moot.
That question should be addressed in the first instance, we believe, by the district court.
Accordingly, the judgment is VACATED and the case is REMANDED to the district court
with instructions to determine the effect of the Commission’s new rule and then proceed
accordingly.

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