CLR Corp. v. Henline

• Decision Date: 23 March 1983
• Docket Number: No. 81-1612,81-1612
• Citation: 702 F.2d 637
• Parties: CLR CORPORATION, Plaintiff-Appellee, v. Lowell HENLINE, Jay Waalkes, and Gordon Foster, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 637

702 F.2d 637

CLR CORPORATION, Plaintiff-Appellee, v. Lowell HENLINE, Jay Waalkes, and Gordon Foster, Defendants-Appellants.

No. 81-1612.

United States Court of Appeals Sixth Circuit.

Argued Jan. 24, 1983.

Decided March 23, 1983.

Jack R. Sluiter (argued), Garlington & Sluiter, Wyoming, Mich., for defendants-appellants.

Robert H. Roether (argued), Bloomfield Hills, Mich. (argued), Noel Lippman, Almont, Mich., for plaintiff-appellee.

Before EDWARDS, Chief Circuit Judge, MARTIN, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

CLR Corporation sued the defendants, government officials of the City of Wyoming Michigan, pursuant to 42 U.S.C. Sec. 1983. Specifically, CLR challenged as unconstitutional a provision of the Wyoming zoning code which imposed special application procedures and spacing requirements on adult book stores locating in the city. The district court granted summary judgment for the corporation finding the ordinance unconstitutional. The court granted injunctive and declaratory relief from which the defendants appeal. We affirm the judgment of the district court, 520 F.Supp. 760.

Wyoming, Michigan is a city of 60,000 people with a total area of approximately 25 square miles. In 1979, the CLR Corporation purchased and remodeled a gas station in Wyoming intending to operate a "variety store." The store's primary commodity would be sexually explicit reading and viewing material, so called "adult" books and films.

City officials denied CLR a certificate of occupancy when it became clear that CLR intended to operate an adult book store. The site which CLR occupied did not meet the zoning requirements of section 60.75 of the Wyoming City Code. Section 60.75 provides that adult book stores, adult movie theaters, and massage parlors must locate in "B-2" business districts and at least 500 feet from any church, school, or residence and 1,000 feet from any other restricted use. The closest residence to CLR's lot is 250 feet away in the neighboring town of Grand Rapids. Nonetheless, Wyoming officials determined that the spacing requirements of section 60.75 were not met. CLR was denied an occupancy permit for the additional reason that it had not obtained special use approval pursuant to section 60.99 of the Code.

CLR made four arguments to the district court against the constitutionality of the City of Wyoming zoning ordinance: the ordinance is unconstitutionally vague; it imposes a prior restraint on speech; it violates the Equal Protection Clause of the Fourteenth Amendment; and it has an extraterritorial application. The district court held that the zoning ordinance violated the Equal Protection Clause according to the Supreme Court's analysis in Young v. American Mini-Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). The defendants argue that Young and its progeny dictate a holding that the ordinance is constitutional. Because we agree with the reasoning and conclusion of the district court on the equal protection argument, we need not reach CLR's remaining arguments or the defendants' rejoinders.

In Young v. American Mini-Theaters a Detroit zoning ordinance prohibited the location of adult movie theaters and adult book stores within 500 feet of a residential area and within 1,000 feet of two other "regulated uses," such as pool halls, cabarets, dance halls, motels, pawnshops, and bars. The purpose of these spacing requirements was to avoid concentrated areas of regulated uses which, as experts testified to the Detroit Common Council, contributed to urban blight. Although the ordinance regulated a first amendment activity according to content, a plurality of the Supreme Court found that adult movie theaters were not denied equal protection. 427 U.S. at 70-73, 96 S.Ct. at 2452-2453. The ordinance burdened free speech only slightly because of the "myriad of locations" in the city available for such use. 427 U.S. at 71, n. 35, 96 S.Ct. at 2453, n. 35 quoting Nortown Theaters, Inc. v. Gribbs, 373 F.Supp. 363, 370 (E.D.Mich.1974) (lower court findings in companion case to Young ). The city amply justified this slight burden by its factual determination that spacing requirements were necessary to preserve the character of its neighborhoods. Justice Powell in his concurrence reached the same conclusion, that the ordinance was constitutional, because he found Detroit had demonstrated a "substantial government interest ... unrelated to the suppression of free expression." 427 U.S. at 79-80, 96 S.Ct. at...