American Atheists v. City of Detroit Downtown Dev.

Citation503 F.Supp.2d 845
Decision Date08 August 2007
Docket NumberNo. 06-11696.,06-11696.
PartiesAMERICAN ATHEISTS, INC., Steve Walker, the Law Offices of Dennis G. Vatsis, P.C., and Dennis G. Vatsis, Plaintiffs, v. CITY OF DETROIT DOWNTOWN DEVELOPMENT AUTHORITY, Defendant, and St. John's Episcopal Church, Intervening Defendant.
CourtU.S. District Court — Eastern District of Michigan

Allan S. Rubin, Draper & Rubin, Southfield, MI, David R. Draper, Draper & Rubin, Grosse Pointe Farms, MI, Robert J. Bruno, Robert J. Bruno Assoc., Burnsville, MN, for Plaintiffs.

Frederick A. Berg, Kevin C. Clark, Jeffrey M. Sangster, Kotz, Sangster, Detroit, MI, Kevin H. Theriot, Dale Schowengerdt, Alliance Defense Fund, Leawood, KS, for Defendant and Intervening Defendant.

Kathryn Wyer, U.S. Dept. of Justice, Civil Division, Washington, DC, for United States.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART: (1) PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; (2) DEFENDANT'S COUNTER-MOTION FOR SUMMARY JUDGMENT; AND (3) INTERVENING DEFENDANT'S COUNTER-MOTION FOR SUMMARY JUDGMENT

COHN, District Judge.

I. INTRODUCTION

This is a First Amendment case. American Atheists, Inc., Steve Walker, the Law Offices of Dennis G. Vatsis, P.C., and Dennis G. Vatsis (collectively, the plaintiffs) claim that the City of Detroit Downtown Development Authority (DDA) has violated the Establishment Clauses of the federal Constitution and Michigan's Constitution by agreeing to distribute, through reimbursement grants, tax-generated funds to three churches for having completed repairs or improvements to the exteriors of several of their structures and parking lots as part of the "Lower Woodward Façade Improvement Plan" (FIP). St. John's Episcopal Church (St. John's) — one of the three churches anticipating receiving a reimbursement grant — joins as an intervening defendant. The United States has submitted an amicus curiae brief on behalf of the defendants.

Before the Court are the plaintiffs' motion for summary judgment and the DDA and St. John's cross-motions for summary judgment. The plaintiffs ask for a declaratory judgment that the FIP is unconstitutional as applied to the churches, and that the DDA's anticipated distribution of reimbursements as well as the payment of preliminary architectural and design fees on behalf of the churches, violates the Constitution of the United States, and the Michigan Constitution. The plaintiffs also ask for a preliminary and permanent injunction restraining the DDA from paying the reimbursement grants and requiring the DDA to recoup monies paid for preliminary architectural and design fees on behalf of the churches.

The defendants ask the Court to find the FIP as applied to the churches, the distribution of the individual reimbursement grants, and the payment of the architectural fees on behalf of the churches, to be constitutional.

The parties have stipulated that there are no material questions of fact regarding the FIP or the reimbursement contracts between the DDA and the three churches. Therefore, this decision addresses only the FIP's constitutionality as applied to the churches, and the constitutionality of the individual reimbursement contracts.1

For the reasons that follow, the Court finds that the FIP is constitutional despite the fact that it allows churches to be the recipients of reimbursement grants. The Court also finds that the reimbursement contracts between the DDA and the churches are constitutional, with exception to the portions which would reimburse the churches for the improvement or replacement of the monolithic signs in front of the sanctuaries, and for work done to two stained glass windows containing religious images at St. John's sanctuary.

II. BACKGROUND2
A.

The DDA is a public body corporate. M.C.L. § 125.1652(2). The funds it distributes are derived from taxes levied by the City of Detroit and other units of government. In June, 2003, the Detroit City Council adopted the FIP as an amendment to the "Restated City of Detroit Downtown Development Authority Tax Increment Financing Plan and Development Plan for Development Area No. 1."3 The FIP authorized the DDA to allocate tax-derived funds to approved applicants by reimbursement contract. The contracts provide for the direct payment to approved applicants of 50% of the cost of repairs or improvements to the façades of their structures and parking lots with a maximum of $150,000.00 for each structure and $30,000.00 for each parking lot. The FIP was created, in part, in anticipation of a huge influx of visitors to the City of Detroit for the Major League Baseball All-Star Game in 2005 and the National Football League SuperBowl in 2006.

B.

A description of the FIP and the criteria/eligibility for funds was set forth in the "Lower Woodward Façde Improvement Program Policy and Guidelines" (Program Policy and Guideline). See Exhibit A, attached.4

1. Purpose and Goals of the FIP

The FIP's was created to:

encourage improvements to building facades and upgrades to edges of surface parking lots in the Program Area. Façade improvements apply to the exterior of buildings and other structures visible from any street, including alley facades. Upgrades to parking lot edges are for street-side of the property only. By improving the appearance of the downtown area, the Program will accomplish the following goals and objectives:

• Support ongoing efforts to retain existing residents and businesses

• Support ongoing business development efforts to attract new businesses

• Complement the streetscape improvements underway

• Encourage occupancy of vacant and/or underutilized storefronts

• Increase the sense of security and community for existing and future developments

Program Policy and Guidelines, section 0.1.

2. Eligible Participants and Projects
a. Eligible Participants

All property owners and tenants (who received approval of the property owner) who owned or leased buildings, parking lots, or businesses within Downtown Development Area No. 1 were eligible to apply for and receive funds made available under the FIP. Id. at section 1.3.

b. Eligible Structural Projects

The Program Policy and Guidelines described the types of building/structural projects that were eligible for reimbursement grants as follows:

Architectural Features: Repair, replacement, preservation or installation of architectural features intrinsic to the character of the building, including cornices, bulkheads and transoms, as well as removal of non-historic features and inappropriate alterations

Storefront Windows: Restoration of damaged display windows and replacement of unsuitable windows

Exterior Lighting: Replacement of damaged and inappropriate lighting with fixtures suitable for the building's period and character

Masonry and Brickwork: Power and/or mild chemical washing of masonry and brickwork. Tuck-pointing and replacement of missing pieces

Awnings and Shutters: Repair, replacement or installation of awnings and shutters

Exterior Doors: Repair, replacement and installation of exterior doors and hardware to provide public access, to correct existing code violations or to improve the overall appearance of the building

Windows: Repair or replacement of frames, sills and sashes; caulking and glazing • Painting: Painting of the façades of the building visible from the street with approved colors and paint

Signage: Removal of signs that are unused, illegal, or not in compliance with City zoning and sign ordinances, repair of existing appropriate and legal signs, or replacement of inappropriate signs

Id. at section 1.4.1.

c. Eligible Parking Lot Projects

The Program Policy and Guidelines described the types of parking lot projects that were eligible for reimbursement grants as follows:

• Compliance with City of Detroit Gateway Radial Thoroughfare Ordinance for parking lot landscaping requirements

• Installation of fencing, brick piers, new curbs, new approaches, shrubbery, irrigation, lighting and other upgrades along the street-side edges of parking lots

• Removal of existing treatments unsuitable for the planned character of the district or that violate City ordinance are also eligible

Id. at section 1.4.2.

d. Architectural Restrictions on Projects

The Program Policy and Guidelines also imposed the following limitations, on projects that were eligible for reimbursement grants as follows:5

• Work must be compatible with and complimentary to the architectural features of the existing buildings in the project area

• No work may be performed that will jeopardize the status of a historical building or change the façade from its original design

Id. at 1.1.

3. Outreach to Potential Applicants

A Façade Program Manager was appointed to conduct outreach to applicants as follows:

Owners within the Program Boundary will be surveyed to determine their building improvement needs and level of interest in participating in the Program. They will have the opportunity to attend informational workshops, receive Program materials and instruction on the application process.

....

.... The outreach to potential participants is achieved through an effective marketing campaign with collateral materials. The materials include a brochure with program application, eligibility and regulatory information, and photographic documentation.

The marketing activities include various public forums and workshops, surveys of property owners and press communications. Strategies for converting reluctant owners have been identified and include one-on-one meetings where testimonials and the financial advantages of participation are presented.

Id. at sections 0.3.4; 1.6.1; and 4.3.1.2.

4. Applicant Requirements

Projects were coordinated and managed by Madison Madison International (MMI), a professional program management firm. Id. at section 0.3.4.

Applicants were required to precisely document the proposed façade and parking lot projects,...

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2 cases
  • American Atheists, Inc. v. Detroit Downtown Development Authority
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 28 de maio de 2009
    ...the storm windows covering two stained-glass windows at St. John's Episcopal Church. See Am. Atheists, Inc. v. City of Detroit Downtown Dev. Auth., 503 F.Supp.2d 845, 849 (E.D.Mich. 2007). The district court granted attorney's fees to American American Atheists appeals the district court's ......
  • BC Tavern of Kenosha, Inc. v. City of Kenosha, Case No. 11-C-959
    • United States
    • U.S. District Court — Eastern District of Wisconsin
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    ...v. Town of Gilbert, 2011 U.S. Dist. LEXIS 139256, *7 (D. Ariz. 2011) (discussing town sign regulation); Am. Atheists, Inc. v. City of Detroit, 503 F. Supp. 2d 845 (E.D. Mich. 2007) (discussing eligibility of parking lots for reimbursement grants) aff'd in part and rev'd in part, 567 F.3d 27......
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