Belle Maer Harbor v. Charter Tp. of Harrison, 97-1596

• Citation: 170 F.3d 553
• Decision Date: 01 March 1999
• Docket Number: No. 97-1596,97-1596
• Parties: BELLE MAER HARBOR, a Michigan limited partnership and Marc Howard, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF HARRISON, a Michigan municipal corporation; Pamela A. Weeks, Trustee, Harrison Township Board of Trustees; Ronald J. Nowaks, Trustee; James P. Senstock, Trustee; Barbara C. Urban, Trustee; Individually and in their Official Capacity; Barbara Casey, Harrison Township Ordinance Enforcement Officer, in her Official Capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 553

170 F.3d 553

BELLE MAER HARBOR, a Michigan limited partnership and Marc

Howard, Plaintiffs-Appellants, v. CHARTER TOWNSHIP OF HARRISON, a Michigan municipal

corporation; Pamela A. Weeks, Trustee, Harrison Township

Board of Trustees; Ronald J. Nowaks, Trustee; James P.

Senstock, Trustee; Barbara C. Urban, Trustee; Individually

and in their Official Capacity; Barbara Casey, Harrison

Township Ordinance Enforcement Officer, in her Official

Capacity, Defendants-Appellees.

No. 97-1596.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 24, 1998.

Decided March 1, 1999.

Bruce T. Leitman (argued and briefed), Bloomfield Hills, Michigan, for Plaintiffs-Appellants.

Robert J. Seibert (argued and briefed), Anthony, Seibert & Dloski, P.L.L.C., Mt. Clemens, Michigan, for Defendants-Appellees.

Before: NORRIS, BATCHELDER, and BRIGHT ^*, Circuit Judges.

OPINION

BRIGHT, Circuit Judge.

This action for injunctive relief and declaratory judgment by Belle Maer Harbor, a marina operator on Lake St. Clair in Harrison Township, Macomb County, Michigan ("Township") and its manager Marc Howard (collectively "Belle Maer") attack as vague an ordinance of the township which regulates the marina's use of mechanical agitators and a tugboat used to keep the waterway from freezing around its boats and structures. From an adverse judgment, Belle Maer appeals. We determine the ordinance, in the part challenged, to be invalid and reverse and remand. ¹

I. BACKGROUND

In 1988, the Township enacted the "Boat Bubbling Ordinance" ("Ordinance 239") to protect the safety of property owners living along the Township's waterways and to ensure unimpeded access to Lake St. Clair and other frozen waterways within the Township for winter recreational activities. Ordinance 239 established various safety requirements for the use of mechanical devices known as bubbling devices, ² which protect docks and other structures in the Township's waterways from ice damage during the winter and spring seasons. Most important for purposes of this appeal, Ordinance 239 set strict limits on the size of open water areas which bubbling devices could create: the open water area could not exceed a five-foot radius from the protected object, or an area "determined by the inspecting officer to be a reasonable radius." This prohibition applied only to canals with widths of 110 feet or less. ³ Violation of the ordinance carried criminal penalties: a maximum of a $300 fine and a thirty-day period of incarceration.

Belle Maer owns and operates Belle Maer Harbor Marina ("Marina"), a private for-profit marina located in the Township on Lake St. Clair. Navigable canals connecting to Lake St. Clair border the Marina on the west and south, and Lake St. Clair abuts the Marina on the north. The canals vary in width from 148 feet to 200 feet, with over 200 docks located along their banks. To protect its docks, pilings and sea walls from ice damage during the winter months, the Marina operates a tugboat to break up the ice within the Marina's interior basin and uses bubbling devices to melt ice around its structures within the canals. The Marina complied with the safety requirements of Ordinance 239, although the open water restriction did not apply to Belle Maer because the Marina's canals exceeded 110 feet in width.

In 1996, the Township adopted Ordinance 303, an amendment to Ordinance 239, which removed the exception to the open water restriction for canals exceeding 110 feet in width. The Township contends that excessive bubbling had created hazardous conditions for Township residents using the frozen waterways. These conditions justified increasing the Ordinance's safety requirements and expanding the open water restriction from "canals one hundred ten (110') feet or less in width" to "any canal or waterway" in the Township. ⁴ Ordinance 303 brought the Marina within the ambit of the open water restriction set forth in Ordinance 239. ⁵

In response, Belle Maer filed a seven-count complaint, seeking, inter alia, a preliminary injunction to prevent the Township from enforcing the open water restriction against Belle Maer. At the outset, the parties stipulated to the entry of a temporary restraining order, enjoining enforcement of the Ordinance pending the conclusion of the proceedings before the court. At the close of discovery, the Township filed a partial motion for summary judgment as to Belle Maer's federal preemption and vagueness claims, and Belle Maer responded with its own motion for summary judgment for declaratory and injunctive relief.

After hearing oral argument concurrently on both motions, the district court ruled from the bench, granting the Township's partial motion for summary judgment and denying Belle Maer's motion for declaratory and injunctive relief. The next day the parties stipulated to an order dismissing the remaining counts of the complaint. The order also stayed enforcement of the Ordinance pending the outcome of this appeal. Belle Maer timely filed the appeal before this court. We have jurisdiction under 28 U.S.C. § 1291 and review a decision granting summary judgment de novo. See Davis v. Sodexho, Cumberland College Cafeteria, 157 F.3d 460, 462 (6th Cir.1998).

II. DISCUSSION

Turning to the specific arguments presented on appeal, Belle Maer asserts that the Ordinance lacks sufficient definiteness to provide Township residents with adequate notice of the proscribed conduct under the Ordinance. In addition, they contend that the Ordinance's imprecision precludes Township inspection officers from uniformly enforcing the Ordinance's open water restriction. Belle Maer also argues that the Township's five foot radius requirement violated their substantive due process rights on grounds that the Ordinance constituted an unreasonable means of advancing a governmental interest. ⁶ In short, Belle Maer asserts that it can only comply with the Ordinance by ceasing to use its bubblers and tugboat which would result in extensive damage to its facilities and substantial financial injury. Because we conclude that the Ordinance is void-for-vagueness, the court does not reach Belle Maer's substantive due process argument. ⁷

A. Void-for-Vagueness

The Due Process Clauses of the Fifth and Fourteenth Amendments provide the constitutional foundation for the void-for-vagueness doctrine. See United States v. Haun, 90 F.3d 1096, 1101 (6th Cir.1996); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 1101, 1104 (6th Cir.1995). A vague ordinance violates the Constitution in two significant respects: such an ordinance fails, (1) to define the offense with sufficient definiteness that ordinary people can understand prohibited conduct, and (2) to establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner. See Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The second prong--providing minimal guidelines to govern the conduct of law enforcement--constitutes the more important aspect of the vagueness doctrine. See Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). "This reflects the common sense understanding that the average citizen does not read, at his leisure, every federal, state, and local statute to which he is subject." Tatum, 58 F.3d at 1105. An enactment imposing criminal sanctions or reaching a substantial amount of constitutionally protected conduct may withstand facial constitutional scrutiny only if it incorporates a high level of definiteness. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Kolender, 461 U.S. at 357, 103 S.Ct. 1855.

In examining a facial challenge, this court must first "determine whether the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman Estates, 455 U.S. at 494, 102 S.Ct. 1186. Where the enactment does not reach constitutionally protected conduct, the complainant may succeed in a vagueness claim "only if the enactment is impermissibly vague in all of its applications." Id. at 495, 102 S.Ct. 1186. Therefore, vagueness claims not involving First Amendment freedoms must be examined in light of the facts of the particular case at hand and not as to the statute's facial validity. See Tatum, 58 F.3d at 1109 n. 6 (limiting vagueness challenge to an "as applied" analysis since the case did not implicate First Amendment rights); United States v. Avant, 907 F.2d 623, 625 (6th Cir.1990) (reviewing vagueness challenge to statute not involving First Amendment rights on the facts of that specific case) (citing United States v. Mazurie, 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975)). However, even in cases not involving First Amendment rights, we have recognized that courts may engage in a facial analysis where the enactment imposes criminal sanctions. See Springfield Armory, Inc. v. City of Columbus, 29 F.3d 250, 252-254 (6th Cir.1994) (rejecting district court's "as applied" analysis of statute with criminal penalties, and concluding that the particular statute was unconstitutionally vague on its face).

Applying these principles to this case, we conclude first that the Ordinance does not threaten to inhibit the exercise of protected First Amendment rights. See Hoffman Estates, 455 U.S. at 495-96, 102 S.Ct. 1186. Neither party contends that First Amendment rights were at issue in this case, and our review of the Ordinance supports this conclusion. But the Ordinance does impose criminal penalties, including incarceration and fines, for its violation. "When criminal penalties are at stake, as they are in the present case, a relatively strict test is warranted." Springfield Armory, Inc., 29 F.3d at 252 (citing Hoffman Estates, 455 U.S. at 499, 102 S.Ct. 1186). Given the criminal sanctions resulting from violations of the Ordinance, we must examine the Ordinance on its face to determine whether it lacks sufficient definiteness to meet...