Tini Bikinis–Saginaw, LLC v. Saginaw Charter Twp.

• Decision Date: 22 December 2011
• Docket Number: Case No. 11–10280.
• Citation: 836 F.Supp.2d 504
• Parties: TINI BIKINIS–SAGINAW, LLC, Fredward of Saginaw, LLC, Ho–Bo Properties, Inc., and Petrick Holdings–Saginaw, LLC, Plaintiffs, v. SAGINAW CHARTER TOWNSHIP, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

836 F.Supp.2d 504

TINI BIKINIS–SAGINAW, LLC, Fredward of Saginaw, LLC, Ho–Bo Properties, Inc., and Petrick Holdings–Saginaw, LLC, Plaintiffs,

v.SAGINAW CHARTER TOWNSHIP, Defendant.

Case No. 11–10280.

United States District Court,

E.D. Michigan,

Northern Division.

Dec. 22, 2011.

David R. Draper, The Draper Law Firm, Anthony L. DeLuca, Grosse Pointe Park, MI, for Plaintiffs.

Anne McClorey McLaughlin, Carlito H. Young, Carol A. Rosati, Johnson, Rosati, Labarge, Aseltyne & Field, P.C., Farmington Hills, MI, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND FOR JUDGMENT ON THE PLEADINGS

THOMAS L. LUDINGTON, District Judge.

This dispute arises out of the planned opening of a bikini bar. The case began after a company that wishes to open an establishment named “Tini Bikinis” was denied a liquor license by a municipality because, the municipality concluded, the establishment did not comply with the zoning ordinance prohibiting “adult related” businesses within one thousand feet of property zoned for residential, educational, and religious purposes. The company, joined by the current owners of the real property and the liquor license, as well as the prospective landlord, brought suit in this Court alleging that the municipality violated the First, Fifth, and Fourteenth Amendments. Three days later, the municipality amended the zoning ordinance. The municipality now moves to dismiss and for judgment on the pleadings, arguing that some claims are not ripe, that others are moot, and that some of the plaintiffs lack standing to raise some of the claims. ECF No. 13. The Court will grant the motion in part and deny the motion in part, dismissing all but the facial First Amendment challenge to the amended zoning ordinance brought by the company and its prospective landlord.

I.

A.

At the intersection of Bay Road and Vogue Boulevard in Saginaw Township, a restaurant and bar named “RJ's Grill & Brew” formerly operated. Compl. ¶ 8, ECF No. 1. It has been closed for several years. Property zoned for residential and religious purposes is located less than one thousand feet from RJ's property.

The real property on which RJ's stands is owned by Plaintiff Fredward of Saginaw, LLC, and its liquor license is owned by Plaintiff Ho–Bo Properties, Inc. Id. ¶¶ 7–8. In 2010, these two entities entered into a sales agreement with Plaintiff Petrick Holdings–Saginaw, LLC, and Plaintiff Tini Bikinis–Saginaw, LLC. Id. ¶¶ 7–10. Pursuant to the agreement, Fredward will transfer the property to Petrick. Id. ¶ 10. Ho–Bo will transfer the liquor license to Tini Bikinis. Id. ¶ 9. And Tini Bikinis will operate a “Tini Bikini's Bar and Grill” at the location “featuring female staff that will wear bikinis and that will perform non-obscene, non-nude, live dance entertainment ... dancing in no less than [b]ikinis.” Id. ¶ 14.

Transferring a liquor license under Michigan law, however, requires that both the local legislative body and the Michigan Liquor Control Commission first approve the transfer. Mich. Comp. Laws § 436.1501(2), cited in Compl. ¶ 16. In 2010, Tini Bikinis requested that the local legislative body of Defendant Saginaw Charter Township, the township board of trustees, approve the transfer. Compl. ¶ 16. The issue was addressed at the regular board meeting held on September 13, 2010. Id. ¶ 17; see also Compl. Ex. A (board meeting minutes). By a vote of 7–0, the board of trustees denied the request. Compl. Ex. A, at 4. On October 1, 2010, the liquor control commission denied the request as well, explaining: “After review of the unfavorable recommendations from the Saginaw Township Board and the Saginaw Township Police Department, the Commission concludes that this application should be denied.” Compl. Ex. C, at 3. On October 25, 2010, Tini Bikinis requested the commission grant Tini Bikinis a hearing to reconsider its decision. Compl. ¶ 21. On November 1, the commission responded that a hearing would be “pointless” because § 436.1501 “is clear in its intent of placing an absolute requirement for approval from the local legislative body before a license to sell alcoholic liquor for consumption on the premises can be granted by the Commission.” Compl. Ex. E, at 2, 3. Plaintiffs did not seek reconsideration by the township board of trustees; instead, they filed suit in this Court.

“The Township opposed the transfer of the License to Bikinis,” the complaint explains, “because the township claims Bikinis['] plans to open an ‘adult related business,’ and that the Location is located within 1,000 feet of property zoned for residential, educational, and religious purposes.” Compl. ¶ 11; see id. ¶ 18. Contesting this characterization, the complaint maintains that “[t]he entertainment Bikinis seeks to present is constitutionally protected expression and does not constitute an ‘adult oriented business' under the [local zoning ordinance].” Id. ¶ 19.

Adding a layer of complexity to the dispute, two different versions of the township's zoning ordinance are at issue: (1) the zoning ordinance in place at the time Tini Bikini's application for a liquor license was denied in 2010 (“2010 Ordinance”); and (2) the zoning ordinance now in place (“Amended Ordinance”). Pertinent provisions of each, as well as the amendment process, are examined below.

B.

1.

Section 2215 of the 2010 Ordinance defines an “adult-related business” in pertinent part as: “Any ... business having any employee or entertainer ... displaying any ‘specified anatomical area’ or engaging in any ‘specified sexual activity’ as defined herein.” Saginaw Charter Township, Mi., Code of Ordinances § 2215(2)(a) (abrogated Jan. 24, 2011), attached as Compl. Ex. B. “Specified anatomical areas,” in turn, are defined as:

i) Less than completely and opaquely covered human genitals, pubic region, buttock, female breast below a point immediately above the top of the areola.

ii) Human genitals in a discernibly turgid state, even if completely and opaquely covered.

Id. §§ 2215(2)(i)(i)-(ii).¹ The 2010 Ordinance prohibits “adult-related businesses” from operating within one thousand feet of residences, schools, churches, and parks. Id. § 2215(5).

The 2010 Ordinance also provides procedures for changes in use, variances, and appeals. Regarding changes in use, § 311 of the 2010 Ordinance provides in pertinent part:

Site plan review and approval required. Prior to the ... change in use in any zoning district, any land use requiring special use approval or any planned unit development, a site plan shall be submitted for review and approval. This review and approval shall be performed by the zoning administrator or by the planning commission....

The applicant shall have the right to appeal from the decision of the township planning commission or administrative site plan review to the township board, whose decision will be final.

Saginaw Charter Township, Mi., Code of Ordinances §§ 311(1), (7) (enacted 2003). Regarding variances, § 311 continues:

In instances where specific dimensional or area requirements mentioned in the zoning ordinance are not satisfied on the site plan, requests for variance(s) may be initiated by the applicant to the township zoning board of appeals....

Id. § 311(4)(e). Provisions regarding the board of appeals, in turn, are provided for in § 2304 of the 2010 Ordinance, which authorizes the board of appeals “to hear appeals concerning”:

(1) All questions that arise in the administration of the zoning ordinance, including interpretation of the zoning map.

(2) All administrative orders, requirements, decisions or determinations made by an administrative official or body charged with enforcement of the zoning ordinance.

(3) All decisions of the zoning administrator.

(4) All decisions concerning site plan review.

Saginaw Charter Township, Mi., Code of Ordinances § 2304(3)(B)(1)-(4) (enacted 2006). Section 2304 continues:

The appeals board shall base its decision on variances from the strict requirements of this Ordinance so that the spirit of the ordinance is observed, public safety secured, and substantial justice done ....

If the demand for appeal is for a variance the appeals board shall either grant, grant with conditions, or deny the application. The appeals board may reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination and may issue or direct the issuance of a permit. A majority vote of the membership of the appeals board is necessary to grant a dimensional variance and rule on an interpretation of the ordinance. The decision shall be in writing and reflect the reasons for the decision....

Any person having an interest affected by such decision shall have a right to appeal to circuit court within 30 days of the certified decision of the appeals board, as provided by law.

Id. § 2304(3)(G)(2), (H), (I). Unlike § 2215, neither § 311 nor § 2304 have been amended during the pendency of this action.

2.

In November 2010, the township drafted proposed amendments to the 2010 Ordinance. Compl. ¶ 23. Proposed changes included modifying “adult-related business” to “sexually oriented business,” defined as: “An adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.” Pls.' Resp. Opp'n Def.'s Mot. Dismiss Ex. F, at 2, ECF No. 15–7. Each term included in the definition of “sexually oriented business” was also defined. “Adult cabaret,” for example, was defined as:

A nightclub, bar, restaurant or similar commercial establishment, whether or not alcohol is served, which regularly features:

i) Persons who appear in a state of restricted nudity, lingerie or bikini; and/or other material while opaque does not completely cover the entire buttocks (e.g., g-strings) or all portions of the breast below the topmost portions of the areola; or

ii) Live performances of an...