Executive Arts Studio v. City of Grand Rapids
| Decision Date | 30 August 2002 |
| Docket Number | No. 1:01-CV-196.,1:01-CV-196. |
| Citation | 227 F.Supp.2d 731 |
| Parties | EXECUTIVE ARTS STUDIO, INC, d/b/a Velvet Touch, Plaintiff, v. CITY OF GRAND RAPIDS, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Allan S. Rubin, Rubin & Rubin, Southfield, MI, Gregory F. Lord, Gregory Fisher Lord, PC, Sterling Heights, MI, for Plaintiff.
Daniel A. Ophoff, Grand Rapids, MI, Scott D. Bergthold, Scottsdale, AZ, for Defendant.
Plaintiff, Executive Arts Studio, Inc. d/b/a Velvet Touch ("Executive Arts"), filed this action seeking declaratory and injunctive relief against Defendant, the City of Grand Rapids (the "City"). In its first amended complaint, Executive Arts alleges, among other things, that Ordinance No. 77-31, being that part of the City's Zoning Ordinance which regulates adult businesses, and Ordinance No. 01-07, which amended the definition of "adult bookstore" under the City's Zoning Ordinance, are unconstitutional as applied to Executive Arts. Now before the Court are Executive Arts' motion for summary judgment and the City's motion to dismiss.1
On July 5, 1977, the Grand Rapids City Counsel approved and adopted Ordinance 77-31, which added Article 25 as Sections 5.283 through 5.288 of the City's pre-existing Zoning Ordinance. The subject of Ordinance 77-31 is regulated uses, including adult uses. The ordinance was based in large part upon the City of Detroit regulated use ordinance upheld in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), which provided for dispersal, rather than concentration, of regulated uses, including adult movie theatres. The purpose of Ordinance 77-31 is summarized in the introductory paragraph:
In the development and execution of this Ordinance, it is recognized that there are some uses which, because of their very nature, have serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances or when one or more of them are located in near proximity to a residential zone, thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. . . . These controls are for the purpose of preventing a concentration of these uses within any one area, or to prevent deterioration or blighting of a nearby residential neighborhood. . . .
(Ordinance 77-31, Zoning Ordinance art. 25, § 5.283(1), Pl.'s App. at 015.)2 The ordinance specifies eleven separate uses, including adult book stores, adult cabarets, adult motion picture theatres, pool or billiard halls, and public lodging or rooming houses. (§ 5.283(2).) A use is permitted if it: (1) is located within a district where it is normally permitted; (2) is not located within 500 feet of a residential zone district; and (3) is not located within 1000 feet of two other regulated uses.3 (§ 5.285.)
Ordinance 77-31 defines an adult bookstore as:
An establishment having as a substantial or significant portion of its stock in trade, books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas," as defined herein, or an establishment with a segment or section devoted to the sale or display of such material.
(§ 5.284(2) (italics added).)4 In applying the "adult bookstore definition," the City has historically interpreted the phrase, "substantial or significant portion," as modifying the phrase "section or segment." (Hoyt Dep. at 39-43, Pl.'s App. at 124-25; Thompson Dep. at 28-32, Pl.'s App. at 145-46.) Thus, while the language of the definition contains two triggers to its application — "substantial or significant" and "section or segment" — the City's administrative interpretation was that a business qualified as an adult bookstore only if a "substantial or significant portion" of its stock in trade consisted of adult books. (Thompson Dep. at 31.) Using this interpretation, the City had determined that a store with no more than 5% of its stock consisting of adult materials would not constitute an adult bookstore under the ordinance. (Id. at 40-41.)
Prior to February 27, 2001, Article 25 of the Zoning Ordinance had been amended several times to include additional regulated uses. These amendments did not affect the stated purpose of the regulated use ordinance or the definition of "adult bookstore". On February 27, 2002, however, the City Commission adopted Ordinance 01-07, which amended the definition of adult store as follows:
An establishment having a substantial or significant portion of its stock in trade devoted to the sale, rental, trade, exchange or display of any combination of books, magazines, and other periodicals, film, video tapes, video discs, greeting cards, pictures, or other visual, electronic or digital media, which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas", as defined herein, or an establishment with a segment or section devoted to the sale, rental, trade, exchange or display of such material.
For several years, Executive Arts operated an adult-oriented boutique under the name "Velvet Touch" in a municipality adjacent to the City. Velvet Touch sold, among other things, adult gifts, videos, and books. In August 2000, Executive Arts lost its lease and was forced to find a new location. Executive Arts chose a site located within the City on East 28th Street. The new site happened to be located within 500 feet of a residential zone and within 1,000 feet of another "adult use" business. On October 11, 2000, Executive Arts submitted an application for a variance from that portion of the City's Zoning Ordinance which regulates adult businesses. Based upon the application, Executive Arts apparently believed that it was a regulated use. In its variance application, Executive Arts represented that it intended to operate an adult-oriented gift and bookstore having approximately 3% of its floor space devoted to sexually-explicit magazines. After reviewing the variance application and obtaining an opinion from its legal department, the City's Planning Department determined that a business having only 3% of its stock in trade devoted to adult magazines, such as that proposed by Executive Arts, would not be a regulated use.
Michael Vredevoogd ("Vredevoogd"), who lived adjacent to Executive Arts' store, and others who were unhappy with the Planning Department's determination, appealed to the Grand Rapids Zoning Board of Appeals ("ZBA"), seeking reversal of the Planning Department's decision that Executive Arts' proposed business would not be a regulated use. On December 8, 2000, the ZBA voted to uphold the Planning Department's decision. Following the ZBA's decision, Executive Arts closed on the building, remodeled it, and opened for business, limiting its stock of sexually-explicit magazines to 3% of its floor space.
On January 3, 2001, Vredevoogd filed an action in the Kent County Circuit Court seeking review of the ZBA decision. The case was assigned to Judge Dennis C. Kolenda. On February 22, 2001, Judge Kolenda issued an opinion in which he determined that Executive Arts was an adult bookstore because an area of its store was a "section or segment" devoted to the sale of sexually-explicit magazines, in spite of the fact that such stock may have comprised only 3% of total floor space. In other words, Judge Kolenda held that the City's interpretation was wrong because the definition of adult book store encompasses stores with either: (1) a substantial or significant portion of their stock in trade devoted to sexually-explicit books and magazines; or (2) a segment or section devoted to the sale or display of such materials. Judge Kolenda issued an order reversing the ZBA decision and remanding the matter to the ZBA for consideration of the original variance request, but retaining jurisdiction over the matter. Shortly after the decision, Executive Arts removed all sexually-explicit magazines from its store, and the City adopted Ordinance 01-07 expanding the definition of adult bookstore to cover videos and other media forms.
On May 3, 2001, the ZBA, on remand from the circuit court, denied Executive Arts' variance request. In making its determination, the ZBA only considered Executive Arts' request for a variance to operate as an adult bookstore selling adult books and magazines; it did not consider whether Executive Arts' store was a nonconforming use under Ordinance 01-07. Executive Arts appealed the ZBA's determination to Kent County Circuit Court. In connection with that appeal, Executive Arts filed a notice pursuant to England v. Louisiana Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), reserving its right to litigate any federal claims in federal court. (Amended Notice of Reservation of Federal Claims/Defenses, Pl.'s App. at 062-63.) Oral argument was held on September 26, 2001, and Judge Kolenda issued an opinion and order on October 11, 2001, affirming the ZBA's decision. In his ruling, Judge Kolenda reached the following conclusions: (1) Ordinance 01-07 supplied the applicable definition of "adult bookstore" for purposes of the appeal; (2) Executive Arts' business was not entitled to nonconforming-use status; (3) the ZBA's denial was proper and there was no ground for reversal; (4) remand to the ZBA for consideration of the variance request under the amended ordinance was unnecessary because the ZBA would likely reach the same result; and (5) the...
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