H.D.V.-Greektown, LLC v. City of Detroit

Citation568 F.3d 609
Decision Date12 June 2009
Docket NumberNo. 08-1329.,No. 08-1361.,08-1329.,08-1361.
PartiesH.D.V.-GREEKTOWN, LLC; 415 East Congress, LLC; and K and P Incorporated, fdba Deja Vu, dba Zoo Bar, Plaintiffs-Appellants, v. CITY OF DETROIT, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: Bradley J. Shafer, Shafer & Associates, P.C., Lansing, Michigan, for Appellants. Jeffrey S. Jones, City of Detroit Law Department, Detroit, Michigan, for Appellee. ON BRIEF: Bradley J. Shafer, Andrea E. Pritzlaff, Shafer & Associates, P.C., Lansing, Michigan, for Appellants. Jeffrey S. Jones, City of Detroit Law Department, Detroit, Michigan, for Appellee.

Before: BOGGS, Chief Judge; GILMAN and ROGERS, Circuit Judges.

OPINION

RONALD LEE GILMAN, Circuit Judge.

This case involves a challenge to the City of Detroit's zoning and sign ordinances by an adult cabaret operating in the City's central business district. The plaintiffs allege that the City has utilized the challenged ordinances to prevent the cabaret from transferring its business to a new owner and from erecting signage desired by the present owner.

Although the district court held that the adult-use zoning provisions were unconstitutional and ordered the City to revise them, it denied the plaintiffs' requested injunctive and declaratory relief as to the zoning ordinances. As for the sign ordinances, the court found that the challenged provisions were facially constitutional, but were unconstitutional as applied to the plaintiffs. It accordingly granted the injunctive and declaratory relief regarding the plaintiffs specifically, but declined to generally enjoin the City from otherwise enforcing the sign ordinances.

The plaintiffs timely appeal the district court's denial of their requested injunctive and declaratory relief, as well as the court's holding that the sign ordinances were not facially unconstitutional. For the reasons set forth below, the district court's denial of the plaintiffs' request that it declare the present owner's operation of the cabaret lawful and enjoin the City from enforcing the adult-use provisions of the zoning ordinances is REVERSED and REMANDED for the entry of the plaintiffs' requested injunctive and declaratory relief. With respect to the sign ordinances, the district court's orders are AFFIRMED except that the court's grant of injunctive and declaratory relief is modified to allow a substitute business name as detailed below.

I. BACKGROUND
A. The zoning-ordinance appeal
1. Factual and procedural background

K and P Incorporated (K & P) has operated an adult cabaret in downtown Detroit (the Premises) since 1986. It obtained a "Group D Adult Cabaret" license from the City in 1994, which allowed it to present "adult entertainment" on the Premises. The cabaret, then operating under the name "Legends," started featuring topless female dancers in 1997.

In 1998, the Michigan legislature revised the state's Liquor Control Code and created what became known as a "Topless Activity Permit" (TAP) for liquor-licensed establishments presenting topless female dance entertainment. K & P, which already possessed a Class C Liquor License, subsequently applied for and was issued a TAP by the Michigan Liquor Control Commission (MLCC).

The City later revised the Detroit Zoning Ordinance (DZO) to further regulate the location of adult entertainment establishments, including "adult cabarets." Specifically, the amendments prohibited the establishment of any new adult businesses on land zoned in the B6-General Services zoning district within the "Central Business District" of Detroit (i.e., downtown). Because K & P's adult cabaret was located on land zoned as B6 within the Central Business District, the amendments rendered K & P's business a nonconforming use under the DZO. This change was confirmed in letters from the City Planning Commission to the City Council in October 1999 and July 2003, with both letters specifically referring to the Premises. But the use of the Premises as an adult cabaret was permitted to continue as a grandfathered nonconforming use pursuant to the then-existing Section 51.0000 of the DZO.

On October 2, 2002, H.D.V.-Greektown, LLC (H.D.V.) entered into a conditional purchase agreement with K & P to purchase all of K & P's assets. The following year, 415 East Congress, LLC purchased the Premises from Hampton Holdings, Inc. H.D.V. planned to lease the Premises from 415 East Congress for the purposes of operating an adult cabaret in the same manner as K & P. Among the assets purchased were K & P's Class C Liquor License and TAP.

H.D.V. applied to the MLCC in December 2002 for the transfer of K & P's liquor license and TAP. In response, the City took the position that the City Council was required to approve the transfer of all liquor licenses and associated permits issued by the MLCC. After H.D.V. received the consent of the MLCC and approval by the Detroit Police Department, the transfer applications were referred to the Detroit Consumer Affairs Department for submission to the City Council. The transfer applications lingered, however, because the City Council refused to consider them. Some City officials took the position that, as a result of one of the conditions of the land-use grant issued to K & P in 1994, K & P was limited to providing only male adult dance entertainment. This limitation became known in later litigation as "Condition 18."

K & P, H.D.V., and 415 E. Congress (collectively, the "plaintiffs") filed suit in federal court against the City in December 2003. The basis for the suit was the City Council's failure to act on H.D.V.'s transfer applications and the consequent threat of enforcement actions against K & P as a result of the language of Condition 18. That litigation ended with the parties stipulating to an order granting declaratory relief that held Condition 18 to be an unenforceable restraint on speech in violation of the First Amendment. The order declared that the City "may not invoke against or apply to the Plaintiffs Condition 18 of the land use grant." All of the plaintiffs' other claims were dismissed without prejudice in order to permit the City Council to reconsider its position in light of the inapplicability of Condition 18.

Despite the court's order, the City Council refused to take up H.D.V.'s transfer applications for almost three more years. The City Council did, however, pass resolutions in 2003 and 2004 that applied to application requests for the approval and/or transfer of liquor licenses and related permits, including TAPs (the "Resolutions"). These Resolutions precluded the granting of MLCC transfer applications for licenses or permits that had been issued for premises considered to be nonconforming uses under the terms of the DZO.

The City also began to issue zoning violation notices against K & P. In February 2004, the first notice ordered K & P to "[v]acate and desist in the use of [the Premises] as an Adult Entertainment establishment or submit application to the Board of Zoning Appeals for the expansion of the nonconforming use as required per Ordinance 390G, Section 56.0000." Upon K & P's appeal to the Board of Zoning Appeals (BZA), the City's Law Department moved to dismiss the violation notice "for the reason that there are inaccuracies in the violation."

A second violation notice, issued in April 2004, ordered K & P to

Cease and Desist in the expanded use as an Adult Entertainment Establishment (Cabaret `D') from occasional limited use of Cabaret `D' to a seven day use from one entertainment area to multi-area and multi-story entertainment. Board of Zoning Appeals approval is required to expand a non-conforming use. Per 390G Zoning Ord. Sec. 55.0100.

K & P also appealed the second violation notice to the BZA. At the hearing before the BZA, the City maintained—despite the ruling of the district court to the contrary—that it could still enforce Condition 18 against K & P.

The BZA ruled unanimously in favor of K & P on the second violation notice. It stated, however, that if the Detroit Buildings and Safety Engineering Department (B & SE) believed that K & P had illegally expanded the nonconforming use of the Premises, then the appropriate procedural avenue would be to initiate a "Show Cause" proceeding.

Fearing that the City would attempt to revoke the land-use grant in future proceedings, K & P significantly curtailed dancing entertainment on the Premises in 2005. But in March 2006, by which time the City had still not taken action on the transfer applications, the plaintiffs refiled their lawsuit against the City.

The City Council finally took up H.D.V.'s transfer request after the lawsuit had been filed. Because K & P was operating as a nonconforming use, the City Planning Commission took the position that H.D.V.'s petition would have a "presumption of disapproval by the Council." On November 15, 2006, the City Council voted to deny H.D.V.'s transfer application.

2. The plaintiffs' first motion for partial summary judgment

The plaintiffs filed their first motion for partial summary judgment in January 2007, seeking an order declaring the adult-use provisions of the DZO unconstitutional and permanently enjoining their enforcement. They argued that the challenged zoning ordinances were unconstitutional, both facially and as applied, because they imposed a prior restraint on speech protected by the First Amendment.

The district court granted the motion in part, holding that the challenged provisions of the DZO were unconstitutional under the First and Fourteenth Amendments. It accordingly directed the City to "revise its zoning ordinance forthwith to bring it into compliance with the First Amendment." But the court denied the motion without prejudice to the extent that the plaintiffs requested (a) a permanent injunction barring enforcement of the challenged provisions, and (b) a declaration that K & P's business at its current...

To continue reading

Request your trial
46 cases
  • Andrews v. City of Mentor
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 25, 2021
    ......Instead, it relied on In re City of Detroit , 841 F.3d 684 (6th Cir. 2016), for the proposition that "[u]nder the rational basis standard, ......
  • BENCH BILLBOARD COMPANY v. City of Toledo, Case No. 3:07CV2027.
    • United States
    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • March 3, 2010
    ...... Id.; H.D.V.-Greektown v. City of Detroit, 568 F.3d 609, 621, 624-25 (6th Cir.2009). .          5 The Sixth Circuit, in Chabad ......
  • Ohio Citizen Action v. City of Englewood
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 2, 2012
    ......at 130, 112 S.Ct. 2395); H.D. V.–Greektown, LLC v. City of Detroit, 568 F.3d 609, 623 (6th Cir.2009). The governmental entity that enacts the regulation bears the ......
  • Michael Bd.ley v. United States Dep't Of The Interior .
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 6, 2010
    ...... forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, --- U.S. ----, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009). A ... See H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 624 (6th Cir.2009) (rejecting argument “that ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT