BBL, Inc. v. City of Angl.
| Decision Date | 31 December 2013 |
| Docket Number | CAUSE NO. 1:13-CV-76-RLM-RBC |
| Parties | BBL, INC., ALVA J. BUTLER, AND SANDRA K. BUTLER, PLAINTIFFS, v. CITY OF ANGOLA, DEAN TWITCHELL, IN HIS OFFICIAL CAPACITY, AND VIVIAN LIKES, IN HER INDIVIDUAL CAPACITY, DEFENDANTS. |
| Court | U.S. District Court — Northern District of Indiana |
Plaintiffs BBL, Inc., Alva J. Butler, and Sandra K. Butler seek a preliminary injunction to enjoin defendants City of Angola, Dean Twitchell, and Vivian Likes from enforcing several City of Angola ordinances against BBL's Showgirl property. Angola moves for summary judgment on BBL's claim that Angola didn't provide a constitutionally sufficient number of adequate alternative sites and for judgment on the pleadings on the plaintiffs' additional claims.
For the preliminary injunction and summary judgment motions, the court reviewed evidence presented at the preliminary injunction hearing and submitted by the parties, including exhibits attached to the pleadings and the various motions, responses, and replies. The evidence the court reviewed for the motion for judgment on the pleadings was more restricted. The evidence scattered about the record provides the following factual background.
BBL seeks to open a sexually oriented business called Showgirl at 310 West Wendell Jacob Avenue in Angola, Indiana. Showgirl will be a venue that serves food and beverages and presents minimally clothed female performance entertainment. When BBL purchased the property, Angola's Unified Development Ordinance sections 2.35 and 2.41 allowed sexually oriented businesses within Medium to Large General Commercial (C2) Districts and prohibited sexually oriented businesses within Moderate Intensity Industrial (I2) Districts. Section 5.66 required sexually oriented businesses to obtain an improvement location permit, to be at least 1,000 feet from "residential zoning districts," and to be at least 1,000 feet away from public gathering places, such as schools, parks, libraries, and day-care centers. Sections 2.35, 2.41, and 5.66 were later modified. Section 9.05 has remained unchanged and requires any property owner who alters an existing structure or changes an existing use of property to obtain an improvement location permit.
In August 2012, before BBL closed on the property, its attorney contacted Zoning Administrator Vivian Likes to verify that the premises met thelegal requirements for a sexually oriented business. Ms. Likes responded with a letter that concluded that the Wendell Jacob Avenue site couldn't be used for a sexually oriented business because a public gathering place was to be built within 1,000 feet of the premises. BBL disagreed with Ms. Likes' assessment, and BBL closed on the sale of the premises on September 11, 2012.
Mr. Butler says renovations began immediately, including resurfacing the parking lot, re-roofing the building, and other miscellaneous maintenance. Mr. Butler and his son James Butler maintain that Building Commissioner Dean Twitchell orally permitted any construction on the premises. Mr. Butler claims he invested at least $456,222.40 in the project, including $175,000 for the property, $90,000 for the front lot, and $85,000 for the liquor license.
On September 17, 2012, the Angola Common Council adopted Angola Ordinance 1418-2012, An Ordinance Establishing Licensing Requirements and Regulations for Sexually Oriented Businesses within the City of Angola, Indiana. The ordinance regulated several aspects of sexually oriented businesses, including a license requirement and hours of operation, and made it "unlawful to establish, operate, or cause to be operated a sexually oriented business in the City of Angola, unless the sexually oriented business is at least 750 feet from every residence."
Building Commissioner Twitchell says he didn't visit the property until September 20, when he told Mr. Butler that installing new roofing material and demolition of interior, non-load-bearing walls didn't require a permit. Mr.Twitchell claims that he didn't approve or disapprove Mr. Butler taking such actions. Mr. Twitchell also says he spoke with Mr. Butler about the construction approval process from the State of Indiana and City of Angola regarding interior construction and told Mr. Butler that he might need an improvement location permit for improvements to the parking lot. During the September 20 visit, Mr. Twitchell says he saw no past or present improvements to the roof of the building and no work had been done to improve the parking lot.
Mr. Twitchell visited the Showgirl premises again on October 1, 2012, and saw that workers had removed a wallboard and several studs from a load bearing wall at the east side of the banquet room and were constructing a new partition wall in the kitchen area. According to Mr. Twitchell, both a construction design release from the State of Indiana and a building permit from the City of Angola were required to perform this construction lawfully. The parties dispute when and how Mr. Twitchell told BBL to stop work on the premises until the appropriate permits were obtained, but the construction stopped at some point around this time.
BBL applied for a construction design release from the State of Indiana on October 18, 2012. BBL filed applications for a license to operate a sexually oriented business and for an improvement location permit from the City of Angola on November 7, 2012. The State granted the construction design release for the Showgirl premises on November 15, 2012. According to Mr.Twitchell, as of September 18, 2013, BBL hadn't applied for a building permit from the City of Angola.
The Angola Common Council adopted Angola Ordinance 1425-2012, An Ordinance Amending the Unified Development Ordinance With Respect to the Regulation of Sexually Oriented Businesses, on November 19, 2012. The ordinance amended Angola's Unified Development Ordinance and removed sexually oriented businesses from the types of businesses allowed in C2 Districts and added them as a type of business permitted in I2 Districts. BBL's property is located in a C2 district. The amendments also prohibit sexually oriented businesses within 750 feet of residences and within 1,000 feet of residential districts, public gathering places, and other sexually oriented businesses.
In late November 2012, Building Commissioner Twitchell issued a written notice of intent to deny Showgirl's sexually oriented business license application based on the 750 feet residential buffer. On December 3, 2012, Zoning Administrator Likes sent Showgirl's attorney a letter in which she communicated: (1) multiple reasons the improvement location permit application was incomplete; (2) the proposed application didn't comply with Ordinance 1418-2012 because the business was within 750 feet of parcels containing residences; and (3) the improvement location permit sought underthe Unified Development Ordinance would be denied, even if the application was complete.
BBL appealed the written notice of intent to deny the application for a sexually oriented business license, and a hearing was held before Hearing Officer James A. McEntarfer. On February 17, 2013, Mr. McEntarfer issued a decision denying Showgirl's sexually oriented business license based on his findings that (i) the Common Council denied the licensing and regulatory ordinance after considering evidence of the negative secondary effects of sexually oriented businesses on surrounding properties, (ii) BBL didn't have a pre-existing use or vested right in the property prior to the adoption of the licensing and regulatory ordinance, (iii) the property didn't comply with the 750 feet buffer, and (iv) the City properly denied the application. BBL filed this suit alleging several violations of Indiana law and the First and Fourteenth Amendments to the United States Constitution.
The defendants move for judgment on the pleadings on all of BBL's claims except the claim about the constitutional adequacy of the alternative sites.
A party may move for judgment on the pleadings after the pleadings are closed. FED. R. CIV. P. 12(C). A motion for judgment on the pleadings is reviewed under the same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim. Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). The court accepts all well pleaded factual allegations as true and construes all reasonable inferences in the non-moving party's favor. Scherr v. Marriott Int'l, Inc., 703 F.3d 1069, 1073 (7th Cir. 2013). The court can consider the complaint and any attached written instruments, FED. R. CIV. P. 10(c), and documents that are referred to in the pleadings and central to the claim. Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). The court considered the complaint and the following attached documents: copies of the ordinances at issue, a copy of Ms. Likes' December 3, 2012 letter, BBL's improvement location permit application, and BBL's construction design release application. The court also considered the following documents that are referred to in the pleadings and central to the claim: the legislative secondary effects documents that were attached to the answer, a copy of § 5.66 of the Angola Unified Development Ordinance that was attached to BBL's response tothe motion for judgment on the pleadings, and Mr. Butler's affidavit that was attached to BBL's motion for preliminary injunction. The complaint must set "forth facts sufficient to support a cognizable legal theory." Scherr v. Marriott Int'l, Inc., 703 F.3d at 1073. Judgment should be granted "only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief." Buchanan-Moore v. Cnty. of Milwaukee, 570 F.3d at 827.
BBL alleges in Count 1 of the...
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