Hillside Productions, Inc. v. Duchane, 02-73618.
| Decision Date | 14 March 2003 |
| Docket Number | No. 02-73618.,02-73618. |
| Citation | 249 F.Supp.2d 880 |
| Court | U.S. District Court — Eastern District of Michigan |
| Parties | HILLSIDE PRODUCTIONS, INC., a Michigan corporation, Roncelli, Inc., a Michigan corporation, L.V. Management, Inc., a Michigan corporation, d/b/a Andiamo, Gary Roncelli, and Joseph Vicari, Plaintiffs, v. Steve DUCHANE, Jeffrey A. Bahorski, Paul J. O'Reilly, City of Sterling Heights, Michigan, and O'Reilly, Rancilio, Nitz, Andrews, Turnbull & Scott, P.C., individually and in their official capacities, jointly and severally, Defendants. |
Cindy R. Victor, Thomas J. Strobl, Strobl, Cunningham, Bloomfield Hills, MI, for Plaintiffs.
Suzanne P. Bartos, Plunkett & Cooney, Rosalind H. Rochkind, Robert D. Goldstein, John J. Gillooly, Garan Lucow, Steven M. Ribiat, Michael R. Turco, Butzel Long, Detroit, MI, for Defendants.
This matter is before the Court on Plaintiffs' motion for preliminary injunction. Plaintiffs Hillside Production, Inc. and others argue that Defendants' decision to revoke the Special Approval Land U under which they have operated Freedom Hill Amphitheater involves constitutional, statutory, and contractual violations; that they will be irreparably harmed by the revocation, and that they are likely to succeed on the merits of their claims. Plaintiffs seek an injunction requiring Defendants to reinstate the Special Approval Land Use, to desist from their campaign of harassment and interference, and to permit Plaintiffs to move forward with their bookings, sponsorships, ticket sales and other arrangements for the 2003 concert season. The Court conducted a hearing over the course of three days, March 4-6, 2003. Based on the evidence and argument submitted in open Court, the Court finds in favor of Plaintiffs and GRANTS the motion for preliminary injunction.
Plaintiff Hillside Productions, Inc. ("Hillside") is a Michigan corporation organized and existing under the laws of Michigan, with its principal office and place of business located in Macomb County, Michigan.1 Defendant City of Sterling Heights is a municipal corporation organized under Michigan law and existing in Macomb County, and at all times pertinent to this matter employed Defendant Steve Duchane as City Manager.
The property that is the subject of Plaintiffs' motion is commonly known as Freedom Hill Park, located at 15000 Metropolitan Parkway, in the City of Sterling Heights. Hillside is the sublessee of a portion of Freedom Hill Park under a sublease made May 19, 1999 between Hillside and the County of Macomb. Macomb County is the lessee of Freedom Hill Park under a lease made on June 5, 1973, between the County of Macomb and the Huse Clinton Metropolitan Authority. The stated intent of the Macomb County lease from HCMA was to develop the premises as a public park and recreational area in accordance with the Outdoor Recreation and Open Space Plan for Macomb County. The Macomb County Lease provided that substantial progress had to be made within two years from the date of the lease in the implementation of the development of the Freedom Hill property, in accordance with the conceptual plans attached to the lease, which included an amphitheater.
In furthering its intent as expressed under the Macomb County Lease, on May 19, 1999, Macomb County entered into a ten-year sublease with Hillside, under which Hillside would manage and operate an entertainment facility in and around the Freedom Hill Amphitheater. On February 19, 2000, Hillside and Macomb County amended the sublease in part to extend it for a period of twelve years, with renewal options, and to require Hillside to provide Macomb County with a set of plans, specifications, and schedule of costs with regard to any proposed above-ground improvements. On March 29, 2001, Hillside and Macomb County again amended the sublease and acknowledged that Hillside had performed substantial development and underground improvements to the Freedom Hill Amphitheater area, in accordance with the Freedom Hill Amphitheater Master Plan.
Hillside received all necessary approvals from Macomb County and the HCMA before beginning work on Freedom Hill Amphitheater. Hillside initially constructed part of the project, investing approximately $3.5 million, and held nine concerts at Freedom Hill in the summer of 2000. As of this date, Hillside has completed improvements under the Freedom Hill Amphitheater Master Plan and has invested in excess of fifteen million dollars in improvements to the area.2
During the first nine months of 2000, which included the summer concert season, Defendant Duchane and other representatives of Defendant Sterling Heights deliberately and actively encouraged Hillside to proceed with the Freedom Hill Amphitheater project. (Hr'g Tr. Vol. I at 19-20, 29-33, Pollard testimony.) Duchane apparently interacted with Hillside representatives and granted local permits without consulting or informing the Sterling Heights City Council, which was led to believe all through this time period that the City had no jurisdiction to negotiate with or limit the activities of Hillside in any way. (Id.; Hr'g Tr. Vol. I at 58-60, 66-68, Fachini testimony; Pls.' Ex. PX 169.)
In the fall of 2000, after Hillside had already invested $3.5 million in Freedom Hill and successfully undertaken a summer concert season, Duchane and the City of Sterling Heights began a series of escalating demands. (Pls.' Ex. PX 169 at 14-30.) Defendants demanded payment for "services" provided in the park (despite the fact that public safety services were handled by the Macomb County Sheriffs Department), then demanded site plan approval, then demanded that Hillside apply for a Special Approval Land Use ("SALU"). (Id. at 29-30, 48.) These demands were justified by Defendants on the basis of Hillside's proposed additional improvements at Freedom Hill; for the first time, the City Council was made aware of the previously issued local building permits and involvement of the City with the Freedom Hill enterprise. (Hr'g Tr. Vol. I at 34-37, 58-61, Pollard and Fachini testimony.) The City Attorneys, who had been actively involved with Freedom Hill from the beginning of the project, also led Council members to believe that they had been "left out of the loop" as the project developed. (Hr'g Tr. Vol. I at 39, Pollard testimony.)
Feeling coerced by their need to obtain building permits and their desire to obtain a liquor license, Hillside did apply for a SALU on February 9, 2001. (Pls.' Exs. PX 114, 109, 110, 111.) In preparation for this hearing, City Planner Norman Birr and an attorney from the City Attorney's office drafted a list of SALU conditions, many of which would have been operationally impossible to comply with. .' At a meeting of the Planning Commission of Defendant Sterling Heights on February 28,2001, at which neither City Planner Norman Birr nor Defendant Duchane was present, the Planning Commission approved the grant of a SALU to Hillside, but changed the proposed conditions. (Pls.' Ex. PX 110.) During that meeting, after an extended discussion as to the nature and extent of the sound limitations to be included, Commissioner Johns asked a member of the City Attorney's office As the minutes reflect, "Ms. Davis stated that the City would not be able to change the specific decibel level if it is already allowed in the ordinance." Condition No. 5 of the SALU was amended to allow Hillside to have sound levels of up to 100 decibels from the top of the hill, and this condition was specifically approved as part of the SALU. (Id.) Other pertinent conditions included:
(2) That the petitioner and County of Macomb shall construct, maintain and operate the facility in compliance with all pertinent codes, ordinances and the standards of the City of Sterling Heights, County of Macomb and the State of Michigan;
(3) That the petitioner and the County of Macomb comply with the requirements of the City of Sterling Heights, and Sterling Heights Police Department with respect to traffic and parking considerations, including, but not limited to, being responsible for establishing and providing for the posting of "no parking" areas designated by the City. The Petitioner must also provide satisfactory reimbursement to the City of Sterling Heights for additional law enforcement staffing associated with this use and the accompanying traffic generated by this use;
(4) That all events, performances and other activities held at the amphitheater will end at a time not later than 11:00 p.m.;
(5) That all devices used to electronically amplify voices and/or music shall be directed or muffled to prevent any noise from exceeding 100 decibels, measured from the top of the hill. The petitioner will continually monitor noise levels during Hillside Productions events and make available all recorded decibel readings;
Having complied with Defendants' conditions for the SALU, and additional demands imposed during the 2001 construction process, Hillside opened its 2001 concert season on June 7, 2001. Hillside did not receive a citation for violation of any ordinance after opening to the public on June 7, 2001. Nonetheless, on June 12, 2001, Defendant Duchane, having first received advice from the City Attorney's office, issued an Official Notice which stated that an "Administrative Enforcement Hearing—Freedom Hill"—had been scheduled for June 20, 2001. (Pls.' Ex. PX 169 at...
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