Little Mack Entertainment v. Township of Marengo

• Decision Date: 17 July 2008
• Docket Number: Case No. 4:05-CV-128.
• Citation: 625 F.Supp.2d 570
• Parties: LITTLE MACK ENTERTAINMENT II, INC., Plaintiff, v. TOWNSHIP OF MARENGO, Defendant.
• Court: U.S. District Court — Western District of Michigan

625 F.Supp.2d 570

LITTLE MACK ENTERTAINMENT II, INC., Plaintiff, v. TOWNSHIP OF MARENGO, Defendant.

Case No. 4:05-CV-128.

United States District Court, W.D. Michigan, Southern Division.

July 17, 2008.

Allan S. Rubin, Draper, Rubin & Shulman P.L.C., Southfield, MI, for Plaintiff.

Mark F. Stuart, Stuart Law Offices PC, Roger L. Caswell, Ronald Allen Berridge, Ronald A. Berridge PLC, Marshall, MI, Thomas R. Meagher, Foster Swift Collins & Smith PC, Lansing, MI, Scott D. Bergthold, Law Office of Scott D. Bergthold, PLLC, Chattanooga, TN, for Defendant.

OPINION

JANET T. NEFF, District Judge.

Plaintiff Little Mack Entertainment II, Inc. ("Little Mack") operates a retail business involving sexually explicit materials, located in defendant Marengo Township ("the Township"). Little Mack filed this case in November 2005, challenging defendant's zoning of adult businesses as unconstitutional. Little Mack sought redress under 42 U.S.C. § 1983, and declaratory and injunctive relief. The Township thereafter amended its zoning ordinance and, additionally, enacted Township of Marengo Ordinance 2005-4, which established licensing requirements and regulations for sexually oriented businesses within the township.

On February 20, 2006, Little Mack filed an amended complaint challenging the enactment of the amended zoning ordinance as invalid and further challenging the constitutionality of both the previous and the amended zoning ordinances and Ordinance 2005-4 (Dkt. 32). The Court, Quist, J., denied the Township's motions to dismiss and denied without prejudice Little Mack's motion for a preliminary injunction (Dkt. 39).¹ The case is now before the Court on the Township's motion for summary judgment. Having carefully considered the parties' oral argument, and the supplemental authority decided after this case was filed, the Court concludes that summary judgment is properly granted in favor of the Township.

I. Facts and Procedural Background

Little Mack leases and operates a business located at 18901 Partello Road in Marengo Township (Am. Compl. ¶ 11). The business sells books, videos and novelties related to sexually explicit expression (Am. Compl. ¶ 12). At the time this lawsuit was filed, sexually explicit materials comprised less than 35 percent of the business's stock in trade and less then 35 percent of its floor space (id.). Little Mack applied for a building permit for remodeling, which the Township denied, purportedly on the ground that Little Mack's business constituted an "adult business" under the zoning ordinance and, thus, required a variance. After this lawsuit was filed, the Township issued the building permit, but also enacted an amendment to the zoning ordinance and enacted Ordinance 2005-4 specifically regulating the operation of sexually oriented businesses (Am. Compl. ¶¶ 14, 19, 22). On January 9, 2006, the Township notified Little Mack that it would not be allowed to operate a sexually oriented business at its current location because the location was within 600 feet of a parcel that is zoned residential, in violation of § 21 of Ordinance 2005-4 (Am. Compl. ¶¶ 20-21, Ex. C).

Little Mack states that it desires to operate an adult business as defined in the various township ordinances at issue, but has not done so because of the ordinance restrictions (Am. Compl. ¶ 15). Little Mack challenges the former zoning ordinance, the amended zoning ordinance, and Ordinance 2005-4 on numerous grounds under the First, Fourth, Fifth, and Fourteenth Amendments and corollary provisions of the Michigan Constitution.

It is Little Mack's contention that the Township's enactment of the amended zoning ordinance violated the procedural requirements of the Michigan Township Zoning Act (MTZA), and thus, the amended zoning ordinance is void ab initio (Am. Compl. ¶ 24). Accordingly, Little Mack advances its constitutional challenges under the pre-amendment restrictions, as well as under the amended version of the zoning ordinance. Likewise, Little Mack contends that Ordinance 2005-4 is void ab initio because, although it is deemed a licensing restriction, it is in fact a zoning ordinance, but was not adopted in conformity with the MTZA (Am. Compl. ¶ 25).

Little Mack's complaint alleged five counts: (1) violation of 42 U.S.C. § 1983 on numerous grounds; (2) action for injunctive relief to enjoin enforcement of the ordinances at issue and compel the Township to issue permits to operate as an adult business at the current location; (3) action for declaratory relief, determining that the ordinances are unconstitutional facially or as applied; (4) state law violations under the MTZA and the Michigan Constitution; (5) action for attorney fees under 42 U.S.C. § 1988. The Township has moved for summary judgment of all counts.

II. Summary Judgment Standard

A motion for summary judgment is properly granted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The court must view the evidence and draw all reasonable inferences in favor of the nonmoving party. Hamilton v. Starcom Mediavest Group, Inc., 522 F.3d 623, 627 (6th Cir.2008); Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir.2005).

III. Ordinance Enactment

As a threshold matter, the Township contends that Little Mack's challenges to the enactment of Ordinance 2005-4 and the zoning ordinance amendment fail as a matter of law. The Court agrees. Plaintiff alleged in its amended complaint that both Ordinance 2005-4 and the amended zoning ordinance (AZO) were adopted in violation of the MTZA (Am. Compl. Count IV, ¶ 56). Contrary to plaintiff's assertions, the Court finds no basis for holding that the enactments are invalid.

A. Validity of Ordinance 2005-4

With respect to Ordinance 2005-4, plaintiff's challenge is based on § 21(a), which provides:

It shall be unlawful to establish, operate, or cause to be operated a sexually oriented business in Marengo Township, unless said sexually oriented business is at least six hundred (600) feet from any parcel that is zoned for residential purposes.

(Dkt. 32-3, Ord. 2005-4, § 21(a).) Little Mack asserts that this provision, despite it being clothed as part of a licensing ordinance, is clearly a zoning ordinance in that it regulates the use of land and buildings according to districts, areas, or locations. Accordingly, the Township was required to comply with the MTZA² in enacting § 21(a), including provisions for notice of adoption, public hearings, and publication. Little Mack contends that because the Township failed to comply with the MTZA in adopting § 21, it is void ab initio.

Little Mack's premise is correct. A local government may not avoid the substantive and procedural limitations of a zoning enabling act by merely claiming that a zoning ordinance is valid as an enactment pursuant to the general police power. Krajenke Buick Sales v. Hamtramck City Engineer, 322 Mich. 250, 33 N.W.2d 781 (1948). However, the Court is not persuaded that § 21(a) is a zoning ordinance as opposed to a regulation of activity, on the basis of the general authority cited by Little Mack.

"A zoning ordinance is defined as an ordinance which regulates the use of land and buildings according to districts, areas, or locations." Square Lake Hills Condo. Ass'n v. Bloomfield Twp., 437 Mich. 310, 471 N.W.2d 321, 327 (1991) (Riley, J.) (citing 8 McQuillin, Municipal Corporations, § 25.53, p. 137). The question whether a particular ordinance is a zoning ordinance must be decided by considering the substance of its provisions and terms, and its relation to the general plan of zoning in the community. Square Lake, 471 N.W.2d at 326-327.

In Square Lake (cited by both parties), the court considered whether an ordinance limiting riparian property owners with a minimum of 150 feet of lake frontage, to launching and docking one motor boat, was a "zoning ordinance." The court held that the ordinance was not a zoning ordinance, noting that it did not regulate the use of land or lake frontage, but rather regulated an "activity" by limiting the number of boats that could be parked, or launched or docked in a given amount of frontage. Id. at 326.

In this case, the 600-foot residential buffer is not readily classified as the regulation of activity as opposed to regulation of the use of land. Nevertheless, § 21(a) does not regulate "the use of land and buildings according to districts, areas, or locations." Id. at 326 (emphasis added). The buffer in effect regulates sexually oriented business activity. Under their police powers, townships have authority to adopt ordinances regulating local matters, including but not limited to the public health, safety, and general welfare of persons and property. Id. 325. Accordingly, the Court finds no basis for concluding that the ordinance is an invalidly adopted "zoning ordinance." See People v. Strobridge, 127 Mich.App. 705, 339 N.W.2d 531, 534 (1983) (contrasting zoning ordinances pertaining to land use which apply, by their own terms, to only specified zoning districts, with regulatory ordinances governing land use, but which are blind to zoning differences).

Even if the Court found the 600-foot buffer in § 21(a) to be an invalid zoning provision, the invalidity of § 21 would not be determinative of the issues in this case. The 600-foot buffer is also contained in the zoning ordinance amendment, which as discussed below, the Court finds was validly enacted.

B. Validity of the Zoning Ordinance Amendment

Little Mack alleged that the Township's adoption of the zoning amendment was invalid because it did not comply with statutory requirements under the MTZA. In particular, Little Mack contends that the Township failed to submit the proposed zoning amendment to the Calhoun County Metropolitan Planning Commission (CCMPC) as required.

The Township...