BERNARD A. FRIEDMAN, Senior District Judge.
This matter is presently before the Court on defendants' motion to dismiss [docket entry 23]. Plaintiff has filed a response in opposition, and defendants have filed a reply. On March 6, 2019, a hearing was held, and oral argument was heard. For the reasons set forth below, the Court shall grant in part defendants' motion to dismiss.
This case challenges the zoning ordinance of defendant the Green Oak Charter Township (the "Township"), where plaintiff Crossroads Outdoor LLC was denied approval to erect an LED/digital billboard. The ordinance was enacted on February 15, 2006,
A revised version of the ordinance was published with amendments through May 2016. Id. Ex. 4. These amendments included new sign ordinance regulations in Article IX, entitled "Signs," that address LED/digital billboards.
Section 38-1 of the ordinance contains definitions, and it defines a billboard as
Id. Ex. 4 § 38-1 at I-3. Section 38-1 also defines "billboard" and "off-premise sign" within the definition of "sign" as follows:
Id. Ex. 4 § 38-1 at I-31 (emphasis in original).
Regulations concerning billboards are found in § 38-409 of Article IX. This section specifies certain requirements for billboards in the Township, such as zoning district, sign area, interchange distance, sign height, illumination, construction, maintenance bond, and landscaping. Id. Ex. 4 § 38-409 at IX-10-12. Section 38-409 also contains provisions concerning setbacks and the distances between billboards:
Id. Ex. 4 § 38-409 at IX-10 (emphasis in original). Regarding off-premise signs, § 38-402(a)(19) provides that off-premise signs "shall not be permitted . . . except as allowed in this Ordinance." Id. Ex. 4 § 38-402 at IX-2.
The ordinance's sign permit requirements appear in § 38-412. Id. Ex. 4 § 38-412 at IX-14-17. This section specifies the types of signs that require permits and lays out the application process. Id. Ex. 4 § 38-412 at IX-14-15. For those who are denied a sign permit, § 38-412 has the following subsection on appeals:
Id. Ex. 4 § 38-412 at IX-16-17 (emphasis in original).
Section 38-404 exempts certain non-commercial and public safety signs from the ordinance's sign permit requirements, but it subjects them to specific regulations and standards laid out in that section. Id. Ex. 4 § 38-404 at IX-3. The signs exempted in § 38-404 include:
Id.
As to the validity of the ordinance as a whole, the following severability clause appears in § 38-6:
Id. Ex. 4 § 38-6 at I-41.
On August 14, 2017, plaintiff applied for a permit from the Township to construct an LED/digital billboard at 7202 Whitmore Lake Road, a vacant parcel it had leased for this purpose. Id. ¶¶ 39-41 and Ex. 5. On August 22, 2017, the Township's Zoning Administrator, Debra McKenzie, issued a Zoning Compliance Report indicating that plaintiff's proposed billboard parcel "is located within 1,000 feet of residentially used or zoned property." Id. ¶¶ 42-43 and Ex. 6. Because this did not comply with the zoning requirement in § 38-409(c) that the billboard be set back at least 1,000 feet from residentially zoned or used property, plaintiff applied for a variance on September 20, 2017. Id. ¶¶ 42-45 and Exs. 6-7. On November 21, 2017, defendant the Township's Zoning Board of Appeals ("ZBA") approved the variance by a unanimous vote. Id. ¶ 46 and Ex. 8 at 1-3. On December 12, 2017, McKenzie issued a Zoning Compliance Report indicating that with the variance, plaintiff's proposed billboard met all zoning requirements. Id. ¶ 48 and Ex. 9.
The following month, however, in a letter dated January 9, 2018, McKenzie rescinded the December 12 Zoning Compliance Report on the grounds that the proposed billboard was approximately 600 feet away from an existing billboard. Id. ¶ 50 and Ex. 10. McKenzie informed plaintiff that § 38-409(d) requires billboards to be at least 1,500 feet away from each other and, as a result, plaintiff had to apply for a second variance. Id. McKenzie indicated that the ZBA would be reconsidering its prior variance decision as to § 38-409(c) at a special meeting on January 16, 2018. Id. In addition, she instructed plaintiff to submit a new application, with its fee waived by the Township, that requested variances as to both § 38-409(c) and (d). Id.
On January 16, 2018, the ZBA voted unanimously to rescind the residential setback variance it had previously granted plaintiff. Id. ¶ 52 and Ex. 11 at 2. On February 15, 2018, plaintiff filed a new application seeking the two variances referenced above. Id. ¶ 54 and Ex. 12. On March 20, 2018, the ZBA denied plaintiff's variance request based on a unanimous vote.
In May 2018, plaintiff filed this action against the Township and the ZBA,
As for the requested relief, in Counts I-III, plaintiff seeks injunctive and declaratory relief, damages, attorney fees, costs, and interest. Id. at 24-25, 27. In Count IV, plaintiff seeks an order requiring the Township to immediately approve its permit application. Id. at 27. In Count V, plaintiff seeks an order reversing the ZBA's decision and requiring it to grant plaintiff the requested variances. Id. at 28.
In November 2018, defendants filed the instant motion to dismiss plaintiff's amended complaint. Defendants argue that Counts I-III (the federal claims) should be dismissed for various reasons under Fed. R. Civ. P. 12
Under Fed. R. Civ. P. 12(b)(1), the Court may dismiss a complaint for lack of subject-matter jurisdiction. "[M]otions to dismiss for lack of subject matter jurisdiction fall into two general categories: facial attacks and factual attacks." United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). Defendants state that their motion presents a factual attack. Defs.' Br. at 9. "A factual attack . . . raises a factual controversy requiring the district court to `weigh the conflicting evidence to arrive at the factual predicate that subject-matter [jurisdiction] does or does not exist.'" Wayside Church v. Van Buren Cty., 847 F.3d 812, 817 (6th Cir. 2017) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2007)) (alteration added). Thus, a factual attack
Ritchie, 15 F.3d at 598.
In considering a Rule 12(b)(1) motion, the Court "has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Leach v. Manning, 105 F.Supp.2d 707, 711 (E.D. Mich. 2000) (quoting Ohio Nat'l Life Ins. Co., 922 F.2d at 325); see also Morrison v. Circuit City Stores, Inc., 70 F.Supp.2d 815, 819 (S.D. Ohio 1999) ("[A] a court may consider any evidence properly before it when a defendant factually attacks subject matter jurisdiction under Rule 12(b)(1)."). Moreover, "the plaintiff has the burden of proving jurisdiction in order to survive the motion." Leach, 105 F. Supp. 2d at 711 (quoting Moir v. Greater Cleveland Reg'l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)).
Under Fed. R. Civ. P. 12(b)(6), the Court may dismiss a complaint if it fails to "state a claim upon which relief can be granted." To survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for misconduct alleged." Id. "[A] plaintiff's obligation to provide the `grounds' of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above a speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Under Fed. R. Civ. P. 12(c), "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." A motion for judgment on the pleadings is reviewed under the same standard as a Rule 12(b)(6) motion to dismiss. Hindel v. Husted, 875 F.3d 344, 346 (6th Cir. 2017).
Defendants move to dismiss Counts I-V of the amended complaint. As mentioned above, plaintiff has agreed to dismiss the equal protection claim in Count III. The remaining counts are discussed below.
In Count I, plaintiff alleges that the Township violated its constitutional right to free speech by denying it a permit. Am. Compl. ¶¶ 85, 87. Plaintiff claims that the Township, through its sign regulations, established a "hierarchy of speech" and is improperly regulating signs with provisions that are "100% based on content." Id. ¶¶ 73-74, 79-80. In addition, plaintiff claims that the Township's variance procedure, which establishes certain requirements for government approval "before engaging in expression," is a prior restraint. Id. ¶¶ 81, 82(b).
Defendants argue that Count I should be dismissed under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction because plaintiff does not have standing. Because plaintiff challenges the entire sign ordinance,
To have constitutional standing,
Coleman v. Ann Arbor Transp. Auth., 947 F.Supp.2d 777, 790 (E.D. Mich. 2013) (alteration added). "Each requirement is `an indispensable part of the plaintiff's case' and `must be supported in the same way as any other matter on which the plaintiff bears the burden of proof.'" Midwest Media Prop., L.L.C., 503 F.3d at 461 (quoting Lujan, 504 U.S. at 561).
Defendants argue that plaintiff lacks standing to challenge the regulations on billboards and off-premise signs (§§ 38-1, 38-402(a)(19), and 38-409), and on permit exemptions for certain non-commercial and public safety signs (§ 38-404(a)(2) and (a)(8)), because plaintiff fails to state an "injury in fact" with respect to these provisions. Defs.' Br. at 10-16.
"To have standing, the plaintiff must have suffered `injury in fact' — a `concrete and particularized' or `actual or imminent' injury." Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Sup. Ct., 769 F.3d 447, 451 (6th Cir. 2014) (quoting Lujan, 504 U.S. at 560). "[A] plaintiff bringing a constitutional challenge against independent provisions of a government enactment must show standing with regards to each provision that is challenged." Coleman, 947 F. Supp. 2d at 790 (citing Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007), and Covenant Media of SC, LLC v. City of N. Charleston, 493 F.3d 421, 429-30 (4th Cir. 2007)). In other words, "[p]laintiffs may challenge the ordinance provisions that have resulted in some concrete injury in fact." Marras v. City of Livonia, 575 F.Supp.2d 807, 814 (E.D. Mich. 2008).
In another billboard case, Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 351 (6th Cir. 2007), the Sixth Circuit held that "[t]he critical inquiry [for constitutional standing] is whether the plaintiff can allege an injury arising from the specific rule being challenged, rather than an entirely separate rule that happens to appear in the same section of the municipal code." In that case, plaintiff's "actual injury . . . was the rejection of its six proposed billboards for failure to meet, among other requirements, the size and height requirements of [the defendant's] sign ordinance." Id. at 348. The Sixth Circuit determined that plaintiff's
Id. at 350-51.
Plaintiff argues that it was injured by the regulations on billboards and off-premise signs in §§ 38-1, 38-402(a)(19), and 38-409 because "they led directly to the denial of its [permit] application." Pl.'s Br. at 12. Plaintiff claims that the billboard and off-premise sign regulations "only apply to [its] proposed sign because of its content." Id. (emphasis in original). Plaintiff contends that the "`billboard-only' setback and spacing regulations which caused [its] application to be denied are thus a direct by-product of the Township's challenged content-based regulatory system." Id.
As to the regulations providing permit exemptions to the types of signs in § 38-404(a)(2) and (a)(8), plaintiff argues that it was injured because it "routinely displays off-premise signs bearing non-commercial content that is in the public interest and promotes civic non-profit events and festivals and . . . would like to display such signs in the Township." Id. at 17. Plaintiff cites to the affidavit of its member, Charles McLravy, who avers that plaintiff's signs "regularly" display non-commercial advertisements, along with commercial advertisements, and that advertisers sometimes pay plaintiff to display these non-commercial messages, but "more often than not [plaintiff's] owners cho[o]se to post noncommercial messages on their signs to promote causes and organizations they support." Pl.'s Ex. A ¶¶ 5-6. McLravy also indicates that plaintiff "often uses" its signs to display public safety and informational messages, such as Amber Alerts, weather alerts, election results, and advertisements for community events. Id. ¶¶ 7-10.
Plaintiff has only alleged an injury in fact — i.e., one that is "`concrete and particularized' or `actual or imminent'" — arising from § 38-409(c) and (d), the billboard regulations for which it was denied variances by the ZBA. Platt, 769 F.3d at 451; see Prime Media, Inc., 485 F.3d at 351. Plaintiff asserts that because of this denial, it was unable to erect its proposed billboard and suffered monetary loss, including lost revenue. Am. Compl. ¶ 86. But plaintiff does not allege an injury in fact arising from any of the other provisions it challenges. Plaintiff does not allege an injury arising from the provision that defines "billboard" and "off-premise sign" (§ 38-1), from the provision that prohibits off-premise signs except as allowed in the ordinance (§ 38-402(a)(19)), and from the provision that regulates billboards (§ 38-409) excluding subsections (c) and (d).
Nor does plaintiff allege an injury arising from the permit exemption provisions in § 38-404(a)(2) and (a)(8). Plaintiff does not demonstrate how subsection (a)(2) affects it. This provision grants a permit exemption to "[p]ublic signs of a noncommercial nature and in the interest of, erected by, or in the order of, a public officer or building official in the performance of public duty and/or are required to insure public safety." In its response, plaintiff does not indicate whether its proposed billboard was somehow tied to "a public officer or building official" performing a public duty in the Township.
Likewise, plaintiff does not allege the specific facts necessary to demonstrate how it was harmed by subsection (a)(8), which gives a permit exemption to "[t]emporary off-premise and/or on-premise signs for civic or non-profit events and festivals, as approved by the Township board." Plaintiff's statement that it "displays off-premise signs bearing noncommercial content that is in the public interest and promotes civic non-profit events and festivals" appears to overlap with subsection (a)(8). But plaintiff's assertion that it does so "routinely" and "would like to display such signs in the Township," Pl.'s Br. at 17, and McLravy's statement that plaintiff displays non-commercial signs "regularly" and informational messages "often," Pl.'s Ex. A ¶¶ 5, 9, are factually insufficient to show actual injury from the permit exemption provisions, and therefore, to demonstrate standing. Because plaintiff does not allege injuries that are "palpable and distinct," its statements are "insufficient to establish an injury in fact."
Moreover, as defendants point out, plaintiff cannot allege injury from subsection (a)(8) because plaintiff's proposed billboard was not a temporary sign. Defs.' Reply at 1-2. The ordinance defines a "temporary sign" as one "which is used only temporarily and advertises a private or public seasonal or special event, function, or sale. Temporary signs are not permanently mounted. Temporary signs shall include balloon, banner, construction, political, portable, and real estate signs." Am. Compl. Ex. 4 § 38-1 at I-36. Plaintiff's proposed billboard was to be permanently installed and was therefore not a temporary sign. See id. Exs. 5-7, 9, 12. That plaintiff filed an appeal as provided by § 38-412(e) and is now challenging this provision also supports the conclusion that plaintiff's proposed billboard was not a temporary sign. Under § 38-412(e) the option of filing an appeal with the ZBA is available to "[a]ny party who has been refused a sign permit for a proposed
In sum, with respect to the regulations on billboards and off-premise signs (§§ 38-1, 38-402(a)(19), and 38-409), and on permit exemptions (§ 38-404(a)(2) and (a)(8)), plaintiff only has standing to challenge the billboard setback and distance provisions in § 38-409(c) and (d) because those are the provisions for which plaintiff has asserted an injury in fact. Plaintiff has not shown that it has suffered a concrete or actual injury arising from the other regulations, and it therefore lacks standing to challenge them. As a result, the Court shall deny defendants' motion as to Count I insofar as this claim is based on § 38-409(c) and (d). To the extent this claim is based on any other ordinance provisions, the motion is granted.
Plaintiff alleges that § 38-412(e), the variance procedure provision, violates the
First Amendment because it imposes a prior restraint. "A `prior restraint' exists when speech is conditioned upon the prior approval of public officials." King Enters., Inc. v. Thomas Twp., 215 F.Supp.2d 891, 914 (E.D. Mich. 2002) (quoting Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir. 2000)). "Although prior restraints `come to the court bearing a heavy presumption against their validity,' they are not unconstitutional per se." Id. (emphasis in original). Defendants argue that plaintiff lacks standing to challenge the variance procedure provision because the harm it caused is not redressable given that "the setback and spacing requirements are . . . independent of, and severable from, the variance procedures." Defs.' Br. at 16-19.
To meet the redressability requirement for constitutional standing, the plaintiff must show that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision" by the court. Int'l Outdoor, Inc. v. City of Southgate, 556 F. App'x 416, 418-19 (6th Cir. 2014) (quoting Lujan, 504 U.S. at 561).
"Severability of a local ordinance is a question of state law. . . ." Midwest Media Prop., L.L.C., 503 F.3d at 464 (quoting City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 772 (1988)) (alteration in original). "The Michigan Supreme Court `has long recognized that `[i]t is the law of this State that if invalid or unconstitutional language can be deleted from an ordinance and still leave it complete and operative then such remainder of the ordinance be permitted to stand.''" Int'l Outdoor, Inc. v. City of Troy, No. 17-10335, 2019 WL 265230, at *4 (E.D. Mich. Jan. 18, 2019) (quoting In re Request for Advisory Op. Regarding Constitutionality of 2011 PA 38, 806 N.W.2d 683, 713 (Mich. 2011)). "The court considers `first, whether the Legislature expressed that the provisions at issue were not to be severed from the remainder of the act. . . .'" Id. (quoting Blank v. Dep't of Corr., 611 N.W.2d 530, 540 (Mich. 2000)).
In the present case, the ordinance's severability clause in § 38-6 evidences that the Township expressly provided for the severability of any unconstitutional provisions. As a result, the variance procedure provision in § 38-412(e) is severable from the ordinance. This means that "[t]he remaining provisions of the Sign Ordinance — such as [the billboard setback and distance requirements] — stand independently from the [variance procedure provision]." Id. (alterations added). But because plaintiff is challenging all of the sign regulations, including the billboard setback and distance requirements in § 38-409(c) and (d), any injury suffered by plaintiff as a result of the variance procedure provision is redressable because "[p]laintiff's injury would be redressed if the [Sign] Ordinance was struck down." See Int'l Outdoor, Inc. v. City of Troy, No. 17-10335, 2017 WL 2831702, at *2 (E.D. Mich. June 30, 2017) (finding a redressable injury where the plaintiff challenged the entire ordinance, as opposed to specific provisions of the township's sign regulations). Thus, defendants' argument regarding standing/redressability as to the variance procedure provision fails.
In sum, plaintiff has standing to challenge the billboard setback and distance requirements in § 38-409(c) and (d) because it has asserted an injury in fact stemming from these provisions. Plaintiff also has standing to challenge the variance procedure provision in § 38-412(e) because the injury from this provision is redressable. Defendants' motion to dismiss is therefore denied as to the claims regarding these provisions in Count I.
Plaintiff alleges in Count II that the Township, through the ordinance, has (1) denied plaintiff substantive due process "[t]o the extent the Ordinance provides a variance mechanism that vests solely in the unbridled discretion of the members of the ZBA," and (2) denied plaintiff substantive and procedural due process to the extent the ordinance "fails to compel the members of the ZBA to rule specifically on each request for variance" because "the mechanism employed is meaningless without articulable standards that Plaintiff might contest in a court of law." Am. Compl. ¶¶ 97-98.
Defendants argue that Count II should be dismissed under Fed. R. Civ. P. 12(b)(6) and 12(c) because plaintiff fails to establish that it has a protected property interest, which it must do to assert a substantive or procedural due process claim. Defs.' Br. at 20-22. According to defendants, plaintiff does not have a protected property interest because "the ZBA's authority is discretionary," and therefore "Plaintiff had no right to approval of its variances, nor any justifiable expectation in their approval." Id. at 21. The Court agrees and finds that dismissal of Count II is appropriate.
"The Due Process Clause of the Fifth Amendment prohibits the United States, as the Due Process Clause of the Fourteenth Amendment prohibits the States," from depriving any person of "life, liberty, or property without due process of law." Dusenbery v. United States, 534 U.S. 161, 167 (2002); Parrino v. Price, 869 F.3d 392, 397 (6th Cir. 2017). "The Due Process Clause `clothes individuals with the right to both substantive and procedural due process.'" Parrino, 869 F.3d at 397 (6th Cir. 2017) (quoting Prater v. City of Burnside, Ky., 289 F.3d 417, 431 (6th Cir. 2002)). Claims of substantive and procedural due process both require a plaintiff to establish that it has a constitutionally protected interest.
In this case, the question is whether plaintiff has a property interest protected by the Due Process Clause. "Property rights are created and defined by independent sources such as state law and not by the Constitution." Braun, 519 F.3d at 573 (citing Thomas v. Cohen, 304 F.3d 563, 576 (6th Cir. 2002)). "The Sixth Circuit has held that in order for a protected property interest to exist, there must be present a policy, law, or mutually explicit understanding that both confers a benefit and limits the discretion of the city to rescind the benefit." Bauss, 408 F. Supp. 2d at 367. As a result, "a party cannot possess a property interest in the receipt of a benefit when the state's decision to award or withhold the benefit is wholly discretionary." Id. (quoting Med Corp. Inc. v. City of Lima, 296 F.3d 404, 410 (6th Cir. 2002)). "[T]o have a property interest in a benefit, a [plaintiff] must have more than a desire for it or unilateral expectation of it; rather, [it] must have a `legitimate claim of entitlement to it,'" such as "a legitimate claim or an entitlement to a . . . variance. . . ." Braun, 519 F.3d at 573 (quoting R.S.W.W., Inc. v. City of Keego Harbor, 397 F.3d 427, 435 (6th Cir. 2005)) (alterations added).
As cited above, § 38-412(e) of the ordinance provides that
Am. Compl. Ex. 4 § 38-412(e) at IX-16 (emphasis added).
The word "may" in § 38-412(e) is important. In a different section entitled "Rules applying to text," the ordinance indicates that "[t]he term `may' is permissive." Id. Ex. 4 § 38-5 at I-41. In contrast, "[t]he term `shall' is always mandatory and not discretionary." Id. In Triomphe Inv'rs v. City of Northwood, 49 F.3d 198, 203 (6th Cir. 1995), the Sixth Circuit agreed with the district court's conclusion that "the use of the word `may' provides sufficient discretion to undercut any argument that the language of the zoning regulations vested in [the plaintiff] an entitlement to the special use permit" that the plaintiff in that case had applied for. Thus, the use of the word "may" in § 38-412(e) indicates that the ZBA's decision to grant a variance is wholly discretionary and that the language of this regulation did not vest in plaintiff an entitlement to the variances it sought.
In Triomphe Inv'rs, 49 F.3d at 202-03, the Sixth Circuit also referenced its prior holding in Silver v. Franklin Twp. Bd. of Zoning App., 966 F.2d 1031, 1036 (6th Cir. 1992), that "if the board of zoning appeals has discretion to deny the plaintiff a conditional zoning certificate, even if he complied with the `minimum, mandatory requirements,' the plaintiff would have had neither a ``legitimate claim of entitlement' [n]or a `justifiable expectation' in the approval of his plan.'" The court relied on Silver in determining that the plaintiff in Triomphe "had no justifiable expectation that its plan would be approved because the board had discretion to deny a special use permit despite [the plaintiff's] compliance with the minimum requirements." Like the zoning boards in Triomphe and Silver, the ZBA in the present case has broad discretion to deny variances within the Township's appeal process "even if certain of the circumstances [listed in § 38-412(e)] are present." Am. Compl. Ex. 4 § 38-412(e) at IX-16. Because of this broad discretion, plaintiff has "neither a "legitimate claim of entitlement' [n]or a `justifiable expectation' in the approval of [the variances].'" Triomphe Inv'rs, 49 F.3d at 202-03.
In its response brief, plaintiff does not demonstrate that it has a protected property interest. It also does not point to "a policy, law, or mutually explicit understanding that both confers a benefit and limits the discretion of the city to rescind the benefit." Bauss, 408 F. Supp. 2d at 367. In fact, plaintiff makes no argument regarding its due process claims in its response brief. Given that the ZBA had full discretion to decide whether to grant plaintiff the variances it sought, plaintiff merely had a "desire" or "unilateral expectation" for a favorable ZBA decision; plaintiff could not have had a "legitimate claim of entitlement to it." Braun, 519 F.3d at 573 (quoting R.S.W.W., Inc., 397 F.3d at 435). "As Judge Easterbrook of the Seventh Circuit Court of Appeals noted in a case involving property owners seeking a zoning variance, `[w]ithout a legitimate claim of entitlement there is no property.'" Bauss, 408 F. Supp. 2d at 368 (quoting River Park, Inc. v. City of Highland Park, 23 F.3d 164 (7th Cir. 1994)). Therefore, plaintiff does not have a protected property interest that could support its substantive and procedural due process claims in Count II.
In sum, plaintiff's substantive and procedural due process claims fail because plaintiff has no constitutionally protected property right since § 38-412(e) gives the ZBA complete discretion to grant or deny variances. Accordingly, the Court dismisses Count II.
In Count IV, plaintiff asserts that the Township violated the Michigan Zoning Enabling Act (Mich. Comp. Laws § 125.3101, et seq.), Am. Compl. ¶¶ 109-12, and in Count V, plaintiff appeals the ZBA's variance denial. Id. ¶¶ 113-16. Defendants argue that if the Court dismisses Counts I-III, Counts IV and V should be dismissed under 28 U.S.C. § 1367(c)(3). But in this case, because Count I is not dismissed in full, the Court has no occasion to dismiss Counts IV and V at this time.
For the reasons stated above,
IT IS ORDERED that defendants' motion to dismiss is granted in part as to Count I because plaintiff has standing to challenge the billboard setback and distance requirements (§ 38-409(c) and (d)) and the variance procedure provision (§ 38-412(e)).
IT IS FURTHER ORDERED that defendants' motion to dismiss is granted as to Counts II and III.
IT IS FURTHER ORDERED that defendants' motion to dismiss is denied as to Counts IV and V.
Am. Compl. Ex. 4 § 38-401 at IX-1.
Am. Compl. Ex. 13 at 6.
Bauss v. Plymouth Twp., 408 F.Supp.2d 363, 367 (E.D. Mich. 2005) (citing Hahn v. Star Bank, 190 F.3d 708 (6th Cir. 1999)), aff'd, 233 F. App'x 490 (6th Cir. 2007).
