Truckor v. Erie Tp.
| Decision Date | 31 March 2009 |
| Docket Number | Docket No. 279475. |
| Court | Court of Appeal of Michigan — District of US |
| Parties | TRUCKOR v. ERIE TOWNSHIP. |
Patrick R. Millican for Jeffrey A. Truckor and Alcatraz Industries, Inc.
Lucas Law PC (by Frederick Lucas) for Erie Township and others.
Lennard, Graham & Goldsmith, P.L.C. (by Phillip D. Goldsmith), for W. Thomas Graham.
Before: GLEICHER, P.J., and K.F. KELLY and MURRAY, JJ.
Erie Township, located in the southwest corner of Monroe County, adopted an ordinance that allows for the operation of adult entertainment establishments, but only in the C-2 zoning district, and then only if certain footage requirements are met. Plaintiffs, the owner of land (Jeffrey A. Truckor) and the entity operating an adult entertainment establishment on that land (Alcatraz Industries, Inc.), appeal by right the trial court's order granting defendants'1 motion for summary disposition, denying plaintiffs' motion for summary disposition and motion for declaratory judgment, and dismissing the case. The discrete constitutional questions presented are whether the township's regulations "unreasonably limit alternative avenues of communication," City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), or constitute a prior restraint on plaintiffs' speech. We hold that (1) the township has not suppressed plaintiffs' "speech," (2) the ordinance otherwise does not unreasonably limit alternative means of communication, and (3) the ordinance does not constitute an unlawful prior restraint. We therefore affirm the trial court's order.
Plaintiff Truckor owns a parcel of land on Telegraph Road in Erie Township, on which he operated an adult entertainment business featuring topless dancing from 1992 to 2000. In 2000, Truckor transferred to plaintiff Alcatraz his permits to operate the adult entertainment business. From 2000 through the present, Alcatraz has been operating the adult entertainment business on the Telegraph Road property, which Truckor still owns. In 2003, the township enacted an adult entertainment ordinance, which provides that any adult entertainment establishment must obtain a special use permit, be located on property zoned C-2, and be at least 1,200 feet away from, inter alia, any residential district or residential use.
In particular, § 11.02 allows for the operation of adult entertainment businesses, with subsection A containing the footage requirements and subsection B containing "special performance standards" for signage, lighting, hours of operation, and other particulars. Additionally, under § 5.06 an applicant for a special land use permit — which adult businesses must obtain — must also satisfy the following nine criteria in order to obtain the permit:
1. The project will be harmonious with and in accordance with the Land Use Plan of the Township.
2. The project will be harmonious with and in accordance with the general intent and purposes of this Ordinance.
3. The project will be designed, constructed, operated and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and that such a use will not change the essential character of the area in which it is proposed. In determining whether this requirement has been met, consideration shall be given to:
a. The bulk, placement, and materials of construction of proposed structures.
b. Pedestrian and vehicular circulation.
c. The location of vehicular use or parking areas.
4. The project will not be hazardous to any person or property, or detrimental or disturbing to the public welfare or to existing or reasonably anticipated future uses in the same general vicinity.
5. The project will be served adequately by essential public facilities and services, such as highways, streets, police, fire protection, drainage structures, refuse disposal, water and sewage facilities and schools, and minimize the impact of traffic generated by the proposed development on adjacent properties.
6. The project will not involve uses, activities, processes, materials and equipment or conditions of operation that will be detrimental to any person, property or general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors.
7. The project will not create excessive additional requirements at public cost for public facilities and services.
8. The project shall be in compliance with the site plan approval standards of Section 4.05.
9. The project shall be in compliance with all applicable site development requirements of Article 11 (Standards for Specific Special Land Uses).
Although there are no specific timetables within Article 11 for a decision by the township, under Article 3 of the ordinance, which is the article addressing general administration and enforcement of the ordinance, "all approvals applied for under the Ordinance shall be acted upon in a timely manner." Specifically, a designated approving body must decide any application no more than 90 days from when the application is deemed complete. Art 3, § 3.08(A)(2). If a public hearing is necessary, it must be held within 60 days of a completed application, and 90 days after the hearing. Art 3, § 3.08(A)(3). Article 11 of the ordinance states that decisions "shall" be made and the planning commission must state its reasons in writing for recommending approval or denial of an application, with reference to the standards within § 5.06. An appeal from the township board is to the circuit court, but there is no provision within the ordinance to allow an establishment to operate while the administrative and judicial process is underway.
In 2005, Truckor purchased a parcel of property zoned C-2 on Victory Road in the township, the property to which Alcatraz planned to move the Telegraph Road adult entertainment business.2 The township, however, would not allow plaintiffs to construct an adult entertainment business on the Victory Road property because the property was not at least 1,200 feet from a residential area. Indeed, the township has conceded that because of the footage requirements, there is no current possibility for a new establishment to locate within the C-2 district.
According to plaintiffs, after being informed of this restriction, defendant Paul Mikels, the township supervisor, informed Truckor that he should not apply for a variance on the Victory Road property because it would be denied for lack of hardship. Mikels suggested that Truckor seek an amendment to the zoning ordinance. Thus, on August 29, 2005, Truckor filed a petition to amend the zoning ordinance to change the 1,200-foot restriction to 750 feet, which he believed would enable him to construct the adult entertainment business, provided that he obtain a special use permit as required by the ordinance. The Erie Township Planning Commission held a public hearing on the petition on October 6, 2005.
On November 28, 2005, before the township reached a decision on Truckor's petition, plaintiffs filed a nine-count complaint against defendants. The crux of plaintiffs' complaint was that the ordinance violated their right to free speech by removing all channels of communication for adult entertainment businesses and by acting as a prior restraint on free speech. The complaint also contained several tort claims that were based on the invalidity of the ordinance and defendants' acts under the ordinance.
After defendants first moved for summary disposition, the trial court entered an order staying the proceedings for 90 days to allow the township to complete the decision-making process on Truckor's petition to amend the ordinance and to allow Truckor to apply for a variance. Thereafter, the Erie Township Board of Trustees denied Truckor's petition for an amendment, and the Erie Township Zoning Board of Appeals denied his application for a variance.
The trial court subsequently granted defendants' motion for summary disposition, holding that the ordinance did not violate plaintiffs' right to freedom of speech as guaranteed by the First Amendment to the United States Constitution. Relevant to the issues on appeal, the trial court ruled that the ordinance did not unreasonably limit alternative avenues of communication:
So the — the — the only significant issue here is whether the township has provided a reasonable alternative avenue for an adult entertainment business.
The Court finds that the township is — has adequately demonstrated that there is an alternative for this expression since the plaintiffs are currently engaged in running an adult entertainment business in Erie Township, because there is in fact other land in the township in which this sort of business could at least potentially be limited — or be — be built. However, I'm — that secondary portion is not necessary for this Court ruling. Therefore, I find that they are not entitled — plaintiffs are not entitled to — to declaratory judgment or summary disposition as to a matter of law as to Counts I through IV, but that the defendants are.
Plaintiffs' complaint was subsequently dismissed, and this appeal followed.
Plaintiffs first argue that the trial court erred in ruling that the adult entertainment ordinance was constitutional, asserting that the ordinance instead violates their right to freedom of speech as guaranteed by the First Amendment to the United States Constitution. Specifically, plaintiffs argue that the ordinance does not leave open alternative avenues of communication and is a prior restraint on their speech.
This Court reviews de novo the trial court's decision on a motion for summary disposition. Washington v. Sinai Hosp. of Greater Detroit, 478 Mich. 412, 417, 733 N.W.2d 755 (2007). When deciding a motion for summary disposition pursuant to MCR 2.116(C)(10), a court must...
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