Plan B Wellness Ctr., LLC v. Detroit Bd. of Zoning Appeals

• Decision Date: 24 July 2019
• Docket Number: Case No. 18-13433
• Parties: Plan B Wellness Center, LLC, and Jack Rayis, Plaintiffs, v. City of Detroit Board of Zoning Appeals, Alternative Care Choices, LLC, Marcelus Brice, and Gabe Leland, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

Plan B Wellness Center, LLC, and Jack Rayis, Plaintiffs, v. City of Detroit Board of Zoning Appeals, Alternative Care Choices, LLC,Marcelus Brice, and Gabe Leland, Defendants.

Case No. 18-13433

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

July 24, 2019

Sean F. Cox United States District Court Judge

OPINION AND ORDER GRANTING THE CITY DEFENDANTS' MOTION TO DISMISS (ECF No. 14)

Plaintiff Jack Rayis owns the Plan B Wellness Center, a medical marijuana provisioning facility. In April 2017, a competing medical marijuana provisioning facility began the process of opening up fifty feet away from Plan B. This new facility applied for a special land use permit and for a waiver of certain zoning requirements. The City of Detroit's Zoning Appeals Board approved the new facility's application.

Plan B, unhappy with the Board's decision, appealed to the Wayne County Circuit Court, which vacated the Board's approval and ordered a new hearing on the application. The Board again approved the permit and zoning waiver.

On November 2, 2018, Rayis filed this §1983 civil rights action on behalf of himself and Plan B. Plaintiffs allege that, in approving the application for a second time, the Board violated their due process rights by not acting as an impartial decisionmaker, and retaliated against them for exercising their First Amendment rights. Rayis also alleges that the owner of the new facility conspired with the Board to retaliate against him.

Rayis's complaint also names Detroit City Councilman Gabe Leland as a defendant, but none of the substantive counts are directed against him. Rayis appears to allege that Leland was somehow improperly involved in the decision to deny the application for a second time.

The Board and Leland ("the City Defendants") now move to dismiss the complaint.¹ For the reasons below, the Court will grant the City Defendants' motion to dismiss.

BACKGROUND

Plaintiff Jack Rayis owns Plaintiff Plan B Wellness Center L.L.C., which is a medical marijuana provisioning facility. Compl. ¶ 5-6. In April 2017, Defendant Alternative Care Choices, L.L.C., which is owned by Defendant Marcelus Brice (collectively "the Corporate Defendants"), entered into a land contract to purchase a building "merely 50 feet away" from Plan B's location. Id. at ¶ 9, 13. Thereafter, the Corporate Defendants applied for a special land use permit to operate as a medical marijuana provisioning facility and for a waiver of "the 1,000 ft. spacing requirement set forth in Section 61-3-354(b) of the City of Detroit's 2015 Zoning Ordinance." Id. at ¶ 14-15.

Plaintiffs opposed the Corporate Defendants' application. Id. "Despite strong opposition from local residents of the neighborhood, local businesses, a neighboring municipality, and a recommendation to deny by the City of Detroit's own Planning Department, the City of Detroit's Building, Safety, Engineering, and Environmental Department ("BSEED") unlawfully approved [the Corporate Defendants'] application..." Id. at ¶ 16. "Relying on BSEED's recommendation," the City of Detroit's Zoning Appeals Board approved the application. Id. at ¶ 17.

"Feeling aggrieved," Plaintiffs appealed the Board's decision to the Wayne County Circuit Court. Id. at ¶ 18. On June 12, 2018, the Honorable Daniel Hathaway vacated the Board's decision and ordered the Board to "hold a de novo hearing with respect to Plaintiffs' objections" to the Corporate Defendants' application. Id. at ¶ 19. The Board held another hearing and again approved the Corporate Defendants' application.

Plaintiffs current lawsuit stems from how they allege the Board handled the application and treated them on remand. Generally, they allege that the Board demonstrated personal animus and ill-will toward them because they were successful in their appeal to the Wayne County Circuit Court. The Board's bias, Plaintiffs contend, was further fueled by bribes from the Corporate Defendants, who also enlisted Councilman Leland to influence members of the Board.

Here are the allegations of wrongdoing from Plaintiffs' Complaint:

22. After the Wayne County Circuit Court's decision, the Defendant Zoning Board rushed the hearing to the front of the line and issued notices for a new hearing only ten (10) days after the Wayne County Circuit Court's June 12, 2018 Order issued.

23. The Defendant Zoning Board scheduled a new hearing to be held on July 10, 2018.

24. At the July 10, 2018 hearing, Defendants ACC and Brice and their attorney specifically refused to discuss any of the prior arguments that it had made. Defendants ACC's and Brice's only argument to the Defendant Zoning Board at July 10, 2018 hearing was that Defendant Brice was a good person who somehow deserved this waiver despite the clear and unambiguous language of the City of Detroit's Zoning ordinances.

25. During the July 10, 2018 hearing, evidence was provided that (1) there was strong community opposition to having two marijuana facilities in such close proximity, (2) that the City of Detroit's Planning Department opposed the waiver, and (3) it was public record that Plaintiff Plan B was legally operating under the City of Detroit's Code of Municipal Ordinances at the time it made its application and purchased the property.

26. Ignoring the evidence in the record, and the specific instructions given by Wayne County Circuit Judge Daniel Hathaway, the Defendant Zoning Board again approved Defendants ACC and Brice's request for the waiver of the 1,000 ft. spacing requirement.

27. It was apparent that members of the Defendant Zoning Board were biased and prejudiced against the Plaintiffs during the July 10, 2018 hearing.

28. The personal animus and ill-will members of the Defendant Zoning Board had towards the Plaintiffs and their legal counsel was apparent throughout the proceeding.

29. Members of the Defendant Zoning Board were biased against Plaintiffs because Plaintiffs were successful in their initial appeal to the Wayne County Circuit Court.

30. It is believed Defendant Brice used his pollical [sic] influence and paid monetary bribes to members of the Defendant Zoning Board to influence their erroneous decision to approve Defendants ACC's and Brice's request for a waiver of the 1,000 ft. spacing requirement.

31. It is further believed that Defendant Brice requested Defendant Leland to use his position and influence as an elected member of the Detroit City Council to influence certain members of the Defendant Zoning Board to ignore the clear and unambiguous language of the City's Zoning Ordinance and approve Defendants ACC and Brice's request for a waiver.

32. Defendant Zoning Board could not be an impartial decisionmaker because of the personal biases members of the Defendant Zoning Board held against the Plaintiffs.

33. Accordingly, because the Defendant Zoning Board was not an impartial decisionmaker, Plaintiffs' due process rights were violated by the Defendant Zoning Board at the July 10, 2018 hearing.

34. Additionally, due to the monetary bribes members of the Defendant Zoning Board may have received from the Defendant Brice, the Defendant Zoning Board could not be impartial during the July 10, 2018 hearing.

35. Additionally, it is believed that Defendant Brice requested Defendant Leland to persuade certain members of the Defendant Zoning Board to approve Defendants ACC and Brice's request for a waiver despite the clear and unambiguous language contained in the City's Zoning Ordinance.

36. Defendant Leland was influential in getting certain members of the Defendant Zoning Board appointed to their respective positions.

37. Accordingly, for those members of the Defendant Zoning Board that Defendant Leland helped to get appointed could not be impartial with respect to Plaintiffs' July 10, 2018 hearing.

Compl. ¶ 22-37.

On November 2, 2018, Plaintiffs filed their three-count Complaint, alleging constitutional claims by way of § 1983. In Count I, Plaintiffs allege that the Board violated their Fourteenth Amendment due process rights by not being an impartial decisionmaker during its second review of the Corporate Defendants' application. In Count II, Plaintiffs allege a claim of First Amendment retaliation against the Board, arguing that it approved the application because of Plaintiffs' successful appeal. In Count III, Plaintiffs allege that the Corporate Defendants conspired with the Board to retaliate against them. Leland is not specifically named in any Count as a defendant.

On April 8, 2019, the City Defendants moved to dismiss all claims against them. (ECF No. 14).

ANALYSIS

Plaintiffs bring this motion under Federal Rules of Civil Procedure 12(b)(6) and 12(c). Rule 12(b)(6) provides for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. The Court must construe the complaint in the light most favorable to the plaintiff and accept its allegations as true. DirectTV, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007). To survive a motion to dismiss, the complaint must offer sufficient factual allegations that make the asserted claims plausible on their face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Legal conclusions couched as factual allegations will not suffice. Rondigo, LLC v. Township of Richmond, 641 F.3d 673, 670 (6th Cir. 2011). Rather, "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Rule 12(c) motions are adjudicated under the same standards as those under Rule 12(b)(6). Lindsay v. Yates, 498 F.3d 434, 437 n.5 (6th Cir. 2007); see also Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007) ("[A] complaint must contain direct or inferential allegations respecting all the material elements under some viable legal theory.")

I. The City Defendants' Motion

The City Defendants raise six...