Jott, Inc. v. Charter Tp. of Clinton
| Citation | 224 Mich.App. 513,569 N.W.2d 841 |
| Decision Date | 15 July 1997 |
| Docket Number | 181802,Docket Nos. 173879 |
| Parties | JOTT, INC., Plaintiff-Appellant, v. CHARTER TOWNSHIP OF CLINTON, Defendant-Appellee. JOTT, INC., Plaintiff-Appellee, v. CHARTER TOWNSHIP OF CLINTON, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Robert D. Horvath, Southfield, for Plaintiff-Appellant.
John A. Dolan (Jerald R. Lovell, St. Clair Shores, of counsel), Clinton Township, for Defendant-Appellee.
Before DOCTOROFF, C.J., and CORRIGAN and R.J. DANHOF, * JJ.
These consolidated appeals involve plaintiff's attempt to offer "topless" entertainment in Clinton Charter Township. In Docket No. 173879, plaintiff, Jott, Inc., appeals by right an order declaring Clinton Township Zoning Ordinance 260 () constitutional and enjoining plaintiff from providing "adult entertainment" contrary to the ordinance. Plaintiff also challenges the trial court's decision upholding a 1984 covenant in which plaintiff agreed not to offer topless entertainment in Clinton Township. In Docket No. 181802, defendant Clinton Township appeals by right an order declaring Clinton Township Zoning Ordinance 291-A () unconstitutionally overbroad and, therefore, unenforceable. We affirm the trial court's decision upholding the constitutionality of ordinance 260. With respect to ordinance 291-A, while we agree that subparts f and g of the definition of "nudity" may not be sustained, we reverse the trial court's decision declaring the entire ordinance unconstitutional because we hold that that subparts f and g may be severed, leaving the remainder of the ordinance constitutionally intact and enforceable. Finally, we find it unnecessary to address the validity of the 1984 covenant.
Plaintiff operates a bar located on Groesbeck Highway in Clinton Township. When plaintiff purchased the bar in 1984, plaintiff covenanted, in exchange for defendant's approval of plaintiff's application to the Liquor Control Commission (LCC) for an entertainment permit, that it would offer only "wholesome entertainment" and would not offer "any entertainment of a lewd, obscene, or immoral nature including, but not limited to topless performers." The covenant provided that, in the event of a violation, defendant would be entitled to "take appropriate action before the Michigan Liquor Control Commission ... to cancel and terminate the entertainment permit pursuant to which th[e] covenant [was] given."
Despite its 1984 covenant, in 1992, plaintiff decided to offer "topless" dancing. Apart from the 1984 covenant, two separate local ordinances affected plaintiff's ability lawfully to provide topless entertainment in Clinton Township. First, local zoning ordinance 260 regulated certain adult uses (including establishments featuring "topless" dancers) by, in part, restricting such uses to "B-3" general business use zoning districts. Plaintiff's bar was located in an "I-2" general industrial zoning district. 1 Second, in November 1991, defendant adopted ordinance 291, which prohibited "nudity" in liquor-licensed establishments or establishments that collect a cover charge or serve food or beverages. The ordinance defined "nudity" in a manner that encompassed "topless" entertainment.
On May 11, 1992, plaintiff commenced the present action against defendant in the Macomb Circuit Court, seeking a declaratory judgment that ordinance 291 was unconstitutional insofar as it defined "nudity" in a manner that prohibited topless entertainment in liquor-licensed establishments and an injunction to enjoin enforcement of the ordinance. Defendant responded by filing a counterrequest for injunctive relief. Following a series of hearings, the trial court issued a preliminary injunctive order on September 14, 1992, restraining plaintiff from violating the provisions of ordinance 291, the 1984 covenant, and ordinance 260.
Simultaneously, on October 2, 1992, plaintiff's president, Scott Nadeau, and several other named individuals who had been arrested for violating ordinance 291 commenced a separate action against defendant in federal court, seeking to enjoin defendant from enforcing ordinance 291. On November 9, 1992, while the federal action was pending, defendant adopted ordinance 291-A, which repealed provisions of ordinance 291. The amended ordinance continued to prohibit "nudity" in liquor-licensed establishments, but eliminated from its coverage establishments that collect a cover charge or serve food or beverages. On January 26, 1993, the federal court issued a judgment declaring ordinance 291-A unconstitutional and permanently enjoining defendant from enforcing the ordinance. Defendant thereafter appealed that ruling to the Sixth Circuit Court of Appeals.
Plaintiff meanwhile filed an amended complaint in the present case seeking, inter alia, injunctive relief and a declaratory judgment that ordinance 291-A and ordinance 260 were both unconstitutional. Defendant filed a countercomplaint seeking, inter alia, injunctive relief and a declaratory judgment that plaintiff's use of topless dancers constituted a nuisance per se under ordinance 260 and the 1984 covenant.
After a bench trial in April 1993, on June 25, 1993, the trial court ruled that ordinance 260 was a constitutionally valid time, place, and manner restriction on plaintiff's First Amendment right to provide topless dancing and, accordingly, enjoined plaintiff from providing adult entertainment in violation of ordinance 260. The trial court refused to address the constitutionality of ordinance 291-A, finding that issue controlled by the decision in the related federal action and that res judicata barred relitigation of the issue in the state case. Finally, believing that the 1984 covenant had been executed in compliance with ordinance 291 (the predecessor to ordinance 291-A), the trial court ruled that the covenant was unenforceable, because ordinance 291-A had been declared unconstitutional by the federal court.
Subsequently, on February 4, 1994, the trial court granted rehearing of the "covenant" issue after determining that it had factually erred in finding that the covenant was executed in compliance with ordinance 291. Addressing the merits of the issue, the trial court determined that the 1984 covenant was valid and enforceable, but declined to award injunctive relief for the reason that the covenant, by its terms, provided an adequate remedy at law, i.e., authority to seek cancellation of the entertainment permit. An order incorporating these rulings was entered on March 4, 1994, and plaintiff subsequently filed an appeal by right from that order (Docket No. 173879).
Thereafter, while the appeal of the related federal court decision regarding the constitutionality of ordinance 291-A was still pending, the parties in the federal action jointly moved to vacate the federal court decision, which was granted on May 27, 1994, thereby removing the res judicata effect of the federal court decision. The parties then resubmitted the issue of the constitutionality of ordinance 291-A to the trial court in this case. On November 14, 1994, the trial court issued its decision declaring ordinance 291-A unconstitutionally overbroad and, therefore, unenforceable. Defendant appealed that decision as of right (Docket No. 181802). The appeal was subsequently consolidated with plaintiff's appeal in Docket No. 173879.
Ordinance 260 regulates four types of adult uses, namely, adult retail stores, adult theaters, adult mini-theaters and cabarets. Plaintiff's proposed use of its premises is encompassed within the definition of "cabaret," which is defined as "an establishment for entertainment which features topless dancers, strippers, male or female impersonators or similar entertainers." Ordinance 260 regulates adult uses in two primary respects. First, the ordinance restricts adult uses to B-3 general business use zoning districts. Second, the ordinance attempts to disperse adult uses throughout the B-3 districts by imposing certain spacing requirements, which may be waived under certain circumstances. The ordinance provides, in relevant part:
These [adult] uses, being recognized as having serious objectionable operational characteristics, particularly when concentrated or located with [sic] the same geographical area, are subject to the following conditions in order to insure that the surrounding area will not experience deleterious, blighting or downgrading influences:
(1) Vehicular ingress and egress shall be directly onto a major thorofare [sic] having an existing or planned right-of-way of at least one hundred twenty (120) feet in width and shall have one property line abutting said thorofare.
(2) The use shall not be located within a planned shopping center as defined in Section 202-78 of this Ordinance.
(3) In no instance shall the use be located closer than 1,000 feet from any church, park, school, playground or school bus stop.
(4) In no instance shall the use be located within one thousand (1,000) feet of any other such use, existing or proposed, as listed in Section 1203-1-1 of this Ordinance, unless the Planning Commission and Township shall find that the use:
(a) Will not be contrary to any conservation, rehabilitation or similar program within the area;
(b) Will not contribute as a blighting influence to the surrounding area;
(c) Will not contribute to a concentration of these types of uses in the area, thereby encouraging the development of a "skid row" type area.
(5) In no instance shall any of the above uses be located closer than five hundred (500) feet to residentially zoned land. If two (2) or more of the above uses are conducted as one (1)...
To continue reading
Request your trial
-
VAN BUREN TP. v. GARTER BELT INC.
...part of a Clinton Township ordinance that this Court held "constitutionally valid and enforceable" in Jott, Inc. v. Clinton Charter Twp., 224 Mich.App. 513, 548, 569 N.W.2d 841 (1997). After defendant failed to comply with § 6-69, plaintiff sued, seeking to enjoin defendant from featuring n......
-
Truckor v. Erie Tp.
...to First Amendment3 protection, as that issue — whether correct or not — has been decided long ago. See Jott, Inc. v. Clinton Charter Twp., 224 Mich.App. 513, 526, 569 N.W.2d 841 (1997), citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), wher......
-
Ludwig v. TOWNSHIP OF VAN BUREN
...nude dancing may be a form of expression falling within the outer limits of the First Amendment, Jott Inc. v. Charter Tp. of Clinton, supra 224 Mich.App. 513 at 526, 569 N.W.2d 841 (1997), citing Barnes v. Glen Theatre, Inc. supra 501 U.S. 560 at 565-566, 111 S.Ct. 2456 115 L.Ed.2d 504 (199......
-
Executive Arts Studio v. City of Grand Rapids
...It is also less than the eight or nine sites the Michigan Court of Appeals held to be sufficient in Jott, Inc. v. Charter Township of Clinton, 224 Mich.App. 513, 569 N.W.2d 841 (1997). See id. at 529-30, 569 N.W.2d at 848. The number of sites is more, however, than the two-to-four sites wit......