Stotts v. Pierson
| Decision Date | 07 January 2014 |
| Docket Number | Case No. 2:11–CV–519. |
| Parties | Christopher STOTTS, et al., Plaintiffs, v. Steven S. PIERSON, et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
OPINION TEXT STARTS HERE
Henry Louis Sirkin, Santen & Hughes, Cincinnati, OH, for Plaintiffs and Defendants.
William Charles Curley, James Quinn Dorgan, III, Weston Hurd LLP Columbus, OH, Scott D. Bergthold, Law Office of Scott D. Bergthold, P.L.L.C., Chattanooga, TN, for Defendants.
This matter is before the Court on the Motion of Plaintiffs Demetrios Prokos and Christopher Stotts (collectively “Plaintiffs”) for Partial Summary Judgment, (Doc. 48), the Motion of Defendants City of Athens (“Athens” or the “City”) and Steven Pierson (collectively the “City Defendants”) for Summary Judgment, (Doc. 50), and the Motion of Defendants Michelle Drabold, Hector Flores, John Golzy, Roger Grueser, Betty Hollow and Greg Levelle (collectively the “BZA Defendants”) for Summary Judgment, (Doc. 49). For the foregoing reasons, Plaintiffs' Motion is DENIED, the City Defendants' Motion is GRANTED in part and DENIED in part, and the BZA Defendants' Motion is GRANTED in part and DENIED in part. Claims against Defendants Hollow, Lavelle, Golzy, and Drabold in their individual capacities are DISMISSED.
Plaintiff Demetrios Prokos (“Prokos”) is the owner of a property located at 9, 11, and 13 West Stimson Avenue in Athens, Ohio (the “Property”). ( Stips.,1 Doc. 41, ¶ 1.) At all times relevant to this action, the use of the Property was governed by Chapter 23 of the Athens City Code (“Zoning Code” or “A.C.C.”). ( Id. at ¶ 8.) Specifically, the Property is located within an area zoned “B–3,” as defined in Zoning Code, ( id.), which permits the following uses (): “Entertainment—Night clubs, theaters, billiard parlors, pool halls, bowling alleys, and similar enterprises ...” Zoning Code §§ 23.04.07, 23.04.06. The Property is more than 100 feet away from any residential zone, and less than 200 feet from several actual residences. ( Stips., Doc. 41, ¶ 8.)
On November 12, 2007, Prokos entered into an agreement to lease the Property to Plaintiff Christopher Stotts (“Stotts”) d/b/a Three Wide Entertainment, an adult entertainment business, effective upon the City's issuance of a Use Permit. ( Id. at ¶¶ 2, 4, Ex. 1.) Under this Agreement, Prokos was to receive up to 40% of the gross revenue of the adult entertainment establishment. Id.
On December 17, 2007, Stotts submitted to the City an Application for a Zoning Certificate/Use Permit (“First Application”), proposing to make primary use of the Property as a “private club/assembly hall” for “dancing and entertainment without sale of alcohol and 120 fixed seats, all within existing building footprint.” ( Id., ¶ 9, Ex. 3.) At the time, Defendant Steven Pierson (“Pierson”) was the City's Director of the Department of Development, Enforcement & Facilities and the City's Zoning Administrator. ( Id. at ¶ 4.) 2 Shortly after filing the First Application, Stotts verbally disclosed to Pierson that he intended to offer adult entertainment with live dance performances at the Property. ( Id. at ¶ 10.)
On January 15, 2008, Pierson issued a written response to Stotts on behalf of the City. The response stated, in relevant part:
... I am unable to determine if the proposed use and the number of parking spaces is permitted under Athens City Code, Title 23, Zoning Code. Therefore, in accordance with the Athens City Code Sections 23.04.07(A)(12) and 23.07.02(C), I am referring this matter to the Athens City Board of Zoning Appeals. The referenced sections permit the Board to review the application to determine if it is of the same general character as specifically listed permitted uses and to determine the number of parking spaces required for a use where the minimum number of parking spaces is not specifically listed in Athens City Code Section 23.11, Table “B”, Off–Street Parking Requirements.
( Id. at ¶ 11, Ex. 4.)
Following Pierson's letter, on March 11, 2008, the Athens City Board of Zoning Appeals (the “BZA” or “Board”) held a hearing on the First Application. Defendants Betty Hollow, Roger Grueser, Greg Lavelle, John Golzy, Michelle Drabold, and Hector Flores comprised the membership of the BZA at all times relevant here. ( Id. at ¶ 5.) 3 After considering the evidence and arguments presented at the first hearing, and without reaching the question of parking spaces, (Doc. 41–4 at 83), the BZA determined that the B–3 zone did not permit Stotts' proposed use and unanimously denied the First Application. ( Id. at 88.) Subsequently, on March 25, 2008, the BZA issued a written decision memorializing its denial of the First Application (“First BZA Decision”), which stated:
On the Motion of Mr. Golzy, seconded by Ms. Hollow, the Board voted to consider the proposed use of the property located at 11–13 West Stimson Avenue as principally permitted in a B–3 zone in accordance with Sections 23.04.07(A)(12) and 23.07.02(C) of the Athens City Zoning Code. Upon vote, the motion failed 5–0.
( Stips., Doc. 41, ¶ 14; Doc. 41–7.)
On March 14, 2008, three days after the BZA hearing on the First Application, Stotts submitted three new Use Permit applications (the “Second Applications”), which respectively listed the Property's proposed primary use as “Entertainment,” “Night Club,” and “Theater.” (Doc. 41–6.) The longer description of the proposed use, however, was the same in all three applications: “Operation of a sexually oriented business and/or adult cabaret and/or adult theater with sexually oriented entertainment activity for patrons over age 18 without sale or service of alcohol, with a maximum of 180 fixed seats, all within the existing building footprint, w/ 4800 sq. ft. available for customer use.” ( Id.) Pierson issued a written response denying the Second Applications (“Pierson's Response to Second Application”). 4 ( Stips., Doc. 41, ¶ 15.)
Stotts appealed, and—in a hearing on May 13, 2008—the BZA unanimously affirmed Pierson's decision and rejected the Second Applications. ( Id. at ¶¶ 16, 18.) On June 9, 2008, the BZA issued a written decision memorializing its denial of the Second Applications (the “Second BZA Decision”), stating:
After due consideration of all the relevant information presented at the meeting on May 13, 2008, the Board finds by a vote of 5–0 that the zoning administrator did not err in refusal to Application Nos. 08–0377, 08–038 and 08–39 to permit establishment of an adult entertainment business, an adult theatre and an adult nightclub at 11 and 13 West Stimson Avenue.
( Id. at ¶ 19; Doc. 41–10.)
Pursuant to Ohio Revised Code § 2506, Stotts timely appealed the First and Second BZA Decisions to Athens County Common Pleas Court, Case Nos. 08CI–0145 and 08CI–0277, and the cases were consolidated. ( Stips., Doc. 41, ¶ 20.) In a written opinion dated June 1, 2010 (“First Common Pleas Decision”), the court found that “the hearing transcripts cast serious doubt on whether all Board members fully understood and applied the correct legal standards to the issues,” and vacated the First and Second BZA Decisions. See Doc. 41–10. Specifically, the First Common Pleas Decision explained:
The two hearing transcripts from 3–11–08 and 5–13–08), read as a whole show that the Board was presented with two issues. First, did Appellants' proposed use fit within the meanings of certain principal permitted uses already listed in the Code—i.e., “nightclub, theater,” “entertainment” business. See ACC 23.04.07(A) and 23.04.06(A). Second, if not, then was the proposed use at least “of the same general character” as any listed principal permitted use? See ACC 23.04.07(A)(12).
( Id. at 6.)
Upon reviewing the BZA hearing transcripts, the First Common Pleas Decision found numerous instances in which BZA members appeared to misunderstand the principles governing their inquiry, including: (1) failure to consider the “same general character” issue; (2) various members' “surprise and reluctance that the Board would be handling anything other than variances, apparently disagreeing with, or not understanding, the Board's authority to decide principal permitted use issues;” (3) suggestions that the application “could or should be denied simply because it involved ‘immorality’ ”; (4) suggestions that the Board's role was to assess the similarity of the proposed use “to existing, planned or hoped for businesses/uses” in the area, or consider what was “appropriate for the community;” and (5) members' reference to and application of standards related to granting variances. ( Id. at 7–9.) As the court explained, however, “City Council, by adopting a zoning code, already determined what is appropriate for B–3 and B–2D Zones,” and any concerns about the secondary effects of adult entertainment would need to be “addressed by legislative action of City Council, and not by the Board.” ( Id. at 8, 10.)
Accordingly, “the Board's sole duty job was not to determine if Appellants' proposed type of entertainment enterprise is appropriate for the community, but simply determine whether, either directly or under the “same general character” test, it is a principally permitted entertainment enterprise within the meaning of ACC 23.04.07(A).” ( Id. at 9.) The court also noted that “Municipal action that wholly suppresses, or greatly restricts access to, lawful First Amendment activity is constitutionally suspect,” and thus reasoned that “from a constitutional standpoint ... stripping and exotic dancing establishments must have been permitted somewhere in the City pursuant to the ordinances governing at the time of Appellants' applications.” ( Id. at 13–14) (citing Union Twp. Bd. of Trustees v. Old 74 Corp., 137 Ohio App.3d 289, 738 N.E.2d 477, 484–85 (2000); Young...
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