Christy v. City of Ann Arbor, Civ. A. 85CV-60352-AA.
| Decision Date | 15 January 1986 |
| Docket Number | Civ. A. 85CV-60352-AA. |
| Citation | 625 F. Supp. 960 |
| Parties | Karen CHRISTY, individually and as, sole shareholder of Unique Creations, Inc., a Michigan corporation, Plaintiff, v. CITY OF ANN ARBOR, a municipal corporation, Edward Pierce, individually and as Mayor of the City of Ann Arbor, and William Corbett, individually and as Chief of Police of the City of Ann Arbor, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Anita McIntyre, Grosse Pointe, Mich., Michael Null, Chicago, Ill., for plaintiff.
R. Bruce Laidlaw, City Atty., Ann Arbor, Mich., for defendants.
This matter comes before the court on plaintiff's motion for a preliminary injunction. Plaintiff challenges the Ann Arbor City zoning ordinance as it pertains to adult bookstores. Plaintiff desires to open an adult bookstore in Ann Arbor and claims that the Ann Arbor zoning ordinance unconstitutionally prevents her from doing so. Plaintiff asks the court to temporarily enjoin the enforcement of the Ann Arbor zoning ordinance until this case can be decided on the merits.
There are two counts to the plaintiff's complaint. The first alleges that the zoning ordinances in question are unconstitutionally restrictive. Count II states that the Ann Arbor regulation is unconstitutionally vague and overbroad. Jurisdiction is based on 42 U.S.C. § 1983 and the First, Fifth, and Fourteenth Amendments of the United States Constitution. For the reasons stated below, the plaintiff's motion for a preliminary injunction is denied.
The plaintiff claims to have obtained a lease on a building in Ann Arbor with the intention of opening an adult bookstore. Plaintiff admits that the proposed site is not an area zoned for adult bookstores. She also admits that the bookstore will sell adult materials, as they are defined in the Ann Arbor zoning ordinance. Therefore, without a favorable ruling from this court, the plaintiff will be subject to civil liability if she opens her bookstore.
There is only one provision in the Ann Arbor City zoning code that is challenged by the plaintiff. The contested section, § 5:50, says:
The principal disputed factual issue in this motion is the number of legal locations for adult bookstores in the City. Plaintiff relies upon the affidavit of a geographer to establish the lack of properly zoned places for adult bookstores. This geographer's calculations show that the total surface area of the city of Ann Arbor is 25.23 square miles. Out of this total, only .058 square miles, or 23/100 of 1% of Ann Arbor, are available for locating an adult bookstore in compliance with § 5.50 of the Ann Arbor zoning ordinance.
The city of Ann Arbor responds that its ordinance is substantially different from those which have been successfully challenged in other cases. The primary difference is that § 5.50(1)(h) allows businesses to have up to 20% of their stock in trade, display space, floor space, or movie display time in adult materials, without subjecting that business to regulation under the zoning laws.
The city of Ann Arbor has two general areas which meet the requirements of its zoning ordinance. Neither party specifies how many adult bookstores could be placed in these two locations. The City asserts that there are numerous locations available. There are two existing adult businesses already located in the City.
Plaintiff's proposed location is at 207 North Main Street, which is inside a C2A zone. However, the location does not meet the other spacing requirements of the ordinance. Plaintiff states that she intends to sell more than the allowable 20% of adult materials in her store and will therefore be subject to the restrictions of the ordinance.
There are four basic requirements that must be met for the plaintiff to obtain a preliminary injunction. Pascoe v. I.R.S., 580 F.Supp. 649 (E.D.Mich.1984); aff'd mem., 755 F.2d 932 (6th Cir.1985). A party seeking a preliminary injunction must demonstrate (1) a likelihood of prevailing on the merits, (2) that a failure to grant the request will result in irreparable harm, (3) that the balance of hardships should the injunction be granted versus if it is denied favors the party seeking relief, and (4) that public policy militates in favor of the party seeking relief. Id. at 651. If plaintiff can meet these requirements on either of the two counts in her complaint, then she is entitled to a preliminary injunction.
Count II of the complaint charges that the zoning ordinance is unconstitutionally overbroad and vague. The leading case on the effects of zoning restrictions upon first amendment rights is Young v. American Mini Theater, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). The Supreme Court in Young considered the constitutional challenge of two adult movie theaters to zoning restrictions. In Young, the city of Detroit enacted an ordinance that required all adult establishments to be 1,000 feet or more from any other regulated use (which included other uses besides adult businesses) and more than 500 feet from any residential area. The term "adult" was defined in the ordinance in broad terms. The ordinances were adopted to combat the negative effects that concentrations of adult bookstores have upon the quality of neighborhoods in which they are located.
Five justices addressed the issue of the plaintiffs' standing to challenge the ordinance as unconstitutionally vague. They held that there was no uncertainty about the application of the ordinances to the plaintiffs because both theaters proposed to offer adult fare on a regular basis. Young, 427 U.S. at 59, 96 S.Ct. at 2446. They rejected plaintiffs' argument that they ought to be able to raise the vagueness issue because the ordinances affected communications protected by the first amendment. The court noted that there was an exception to this general rule which gave parties whose first amendment rights had not been affected by the ordinance standing to challenge its constitutionality. Nevertheless, the court continued, if the ordinance's deterrent effect on legitimate expression was not substantial and if the ordinance was readily subject to a narrowing construction by the state courts, then the litigant would not be permitted to assert the rights of third parties. Id. at 60, 96 S.Ct. at 2447.
The court decided that the Detroit ordinances had little deterrent effect on the exhibition of films protected by the first amendment. Moreover, in cases where there was doubt about the application of the ordinance, the Supreme Court believed that state courts could give a narrowing construction to it that would sufficiently reduce the uncertainty.
Applying this analysis to the facts of these cases,...
To continue reading
Request your trial
-
Richardson v. Wile
...limited to establishments whose "principal business purpose" was the sale of sexually explicit material); Christy v. City of Ann Arbor, E.D.Mich, 625 F.Supp. 960 (1986) (ordinance regulating establishments with more than twenty percent of stock in trade in adult Unlike the zoning ordinances......
-
Bannum, Inc. v. City of Fort Lauderdale, Fla., 86-6926-CIV-EPS.
...of the property is consistent with the land use planning and urban design considerations of the City. See, e.g., Christy v. City of Ann Arbor, 625 F.Supp. 960 (E.D.Mich. 1986) (upholding the enforcement of a city zoning ordinance preventing the operation of an adult It is really unnecessary......
-
Christy v. City of Ann Arbor, 86-1172
...the district court's order and remand. The facts of this case are set forth in the district court's opinion, Christy v. City of Ann Arbor, 625 F.Supp. 960 (E.D.Mich.1986). In brief, they are as follows. Plaintiff Christy wishes to operate in Ann Arbor an adult bookstore featuring materials ......