United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
G. EDMUNDS UNITED STATES DISTRICT JUDGE.
Bazzy Enterprises, LLC, ("Plaintiff") filed this
civil rights case on March 10, 2016, against the City of
Dearborn ("City"), the City of Dearborn's
Zoning Board of Appeals ("Zoning Board"), and five
of the City of Dearborn Zoning Board of Appeals
commissioners, individually and in their official capacity
(collectively "Defendants"). (Dkt. 1.)
Plaintiff's Complaint asserts the Defendants deprived
Plaintiff of the reasonable use of its land, its due process
rights, and its equal protection rights in violation of 42
U.S.C. § 1983, when the Zoning Board denied
Plaintiff's application for a zoning variance to increase
the permitted occupant load of its banquet hall despite
limited available parking.
brings this Motion for Preliminary Injunction seeking
injunctive relief during the pendency of this action.
Defendant is asking the Court (1) to compel Plaintiff not to
exceed its occupancy load, something that is already required
under the current certificate of occupancy; (2) to compel
Plaintiff to refrain from blocking any fire exits or fire
hydrants, something that is a matter of local law; (3) to
prevent Plaintiff from using indoor fireworks displays, again
something that would be subject to the local fire code; and
(4) to prevent Plaintiff from allowing parking in a way that
would obstruct fire lanes, exits, means of egress to and from
the property, and otherwise cause a public nuisance or hazard
which is also a matter of local law. Defendants'
requested injunction therefore seeks to preserve the status
quo ante and to prevent Plaintiff from violating existing
laws. At its core, Defendants' motion is an
complaint acknowledges the occupancy code, local ordinances,
and basic parking restrictions but takes issue with the
Zoning Board denying their requested variance regarding
occupancy and parking. The Court held a hearing on the
preliminary injunction motion on July 25, 2018. Following the
hearing, Plaintiff improperly filed a supplemental response
in opposition to Defendants' motion for preliminary
injunction. (Dkt. 69.) Although this response was improperly
filed, the Court nevertheless considers the substance of that
filing in this opinion and order. For the reasons stated
below the Court GRANTS Defendants' preliminary
currently owns and operates a banquet facility, Greenfield
Manor, principally used for weddings and other social
gatherings, in the City of Dearborn. (Pl. Resp. Preliminary
Inj., Dkt. 57, at 5; PgID 372.) The building's previous
owner converted the structure from a grocery store into the
Greenfield Manor banquet hall in 2001. As part of the
conversion the Zoning Board granted a No. of variances for
the non-conforming structure. At the time, the Zoning Board
noted that the site was parking deficient. The zoning
variances for the facility were set at 384 persons, including
purchased the property in 2006. Between 2006 and 2008 there
is a discrepancy between Plaintiff and Defendants about what
the proper certificate of occupancy was for the building.
(Dkt. 57-3, at3; PgID 449.) Defendants asserted at the
hearing that the occupancy was always 384, although they
admit issuing a mistaken placard (although not a proper
certificate of occupancy) for a higher amount. Plaintiff's
assert in their supplemental filing that the legitimate
occupancy during this period was 644. (Dkt. 69, at 1; PgID
717.) Plaintiff provides an undated and unsigned form titled
"City of Dearborn Department of Building &
Safety" which lists "the maximum occupant count for
[Greenfield Manor] ¶ 644 persons total." (Pl.
Compl. Ex. A; Dkt. 1, at 11.) Defendant avers it is not a
certificate of occupancy, and that this placard was issue in
error. (D. Answer; Dkt. 16 at 3; PgID 77.) Defendant provides
a 2009 dated and signed official certificate of occupancy for
Greenfield Manor which supports the building's present
actual occupancy is 384 persons. (Def. Mot. for P.
Injunction; Dkt. 49-3, at 2; PgID 220.) It is therefore
undisputed that as of 2009 Plaintiff was adequately informed
that the legal certificate of occupancy for the building,
issued by the City of Dearborn was 384 persons.
the next several years, beginning in 2010 a series of
occupancy issues arose between Plaintiff and the City of
Dearborn, in no small part based on this 260 occupancy
2010, the Dearborn Fire Department responded to Greenfield
Manor after a patron complained of overcrowding. Battalion
Chief T. Prokop, from Unit #2 stated he entered the hall and
"stopped counting at seven hundred [guests]. (Ten guests
at a table times seventy tables)." (Dkt. 49-4, PgID
222.) In October 2011, the City of Dearborn sent a letter
reminding Plaintiff of the maximum 384 person occupancy and
citing a Fire Marshal's report that he had "counted
seventy tables, each with ten chairs, thus indicating a
maximum seating capacity of 700 people. Moreover, the
advertisement for the event indicated seating for 850
people." (Dkt. 49-5; PgID 224.)
January 2013, the City became aware Plaintiff's rental
agreement listed the occupancy at 644. (Dkt. 49-6; PgID 227.)
This resulted in the City issuing two letters of warning,
followed by citations. Defendants state "[t]o date,
Plaintiff has not properly amended its rental contract or
changed its posting." (D.'s Preliminary Inj., Dkt.
49, at 12; PgID 204.) In March 2014, Dearborn Fire Inspector
Laura Ridenour cited Plaintiff for overcrowding beyond
approved capacity, and improper occupant load posting. (Dkt.
49-8; PgID 233-39.) Plaintiff pled no contest to the
violations on January 15, 2015, and paid $700 in fines.
January 1, 2015, Plaintiff hosted a New Year's Eve party,
where police responded to an incident and issued an alcohol
citation. (Dkt. 49-9, at 2; PgID 242.) After the fact, the
City sent a notice of violation for "illegal use as a
nightclub" and "exceeding the maximum mandated
occupant load." (Dkt. 49-10; PgID 249.) In June 2015,
the City sent a warning letter to Plaintiff stating the
Zoning Board had granted a use variance to Greenfield Manor
back in 2001, but that Plaintiff's non-compliance with
City ordinances put the variance at risk. The letter stated,
"the [Zoning Board] is permitted to revoke or modify the
conditions of a previously granted variance." (Dkt.
49-11; PgID 251.) The letter listed the following most
critical examples of non-compliance with the City ordinances:
(1) lack of appropriate fire exits, (2) violation of
occupancy load restrictions, (3) use of the premises as a
nightclub, (4) illegal presence of alcohol, (5) continued
exceeding of occupancy limits resulting in parking issues
negatively impacting the surrounding neighborhood, and (6)
general blight violations. (Dkt. 49-11; PgID 251-52.) The
letter closes stating "[u]nless these violations are
immediately and fully addressed, the Greenfield Manor will be
referred back to the Zoning Board of Appeals for a review and
possible revocation of the use variance granted in
January 2016, Plaintiff appeared before the Zoning Board
seeking a parking variance in order to increase its occupancy
load to 644 people. The Zoning Board denied the request.
Plaintiff filed their March 2016 complaint in response.
March 24, 2018, the City of Dearborn police and fire
personnel conducted an occupancy compliance check of
Greenfield Manor, where they observed and documented the
banquet room set up for a wedding with 78 tables with 10
chairs per table, totaling seats for 780 people. The space
presented other fire hazards, including non-fire treated
drapery, blocked exit signs, and tables placed in a way that
would prevent exit during an emergency. (Dkt. 49-12, 49-13,
and 49-14.) The officers returned during the wedding
reception and observed and documented unsafe and violative
parking. Inside the officers observed a pyrotechnics display
in the ballroom. (Dkt. 49-19.) Corporal Golden observed that,
during the pyrotechnics display, "[f]our devices set up
on the main dance floor triggered columns of sparks that rose
nearly to the ceiling." (Dearborn Police Case Report
3/24/18, Dkt. 49-12, at 5; PgID 257.) Plaintiff provides an
affidavit from Haidar Bazzi, who supplied the pyrotechnics
display that evening and explains the spark
effect is electronic, does not require a fire
permit because there is no flame, heat, or fire hazard.
Defendants disputed this assertion at the hearing.
City of Dearborn ("Dearborn") filed this motion for
preliminary injunction, pursuant to Federal Rules of Civil
Procedure 65, and Local Rules 65.1 on April 20, 2018.
Defendants seek the preliminary injunction restraining
Plaintiff from (1) exceeding its occupancy load of 344
persons plus 40 staff, (2) blocking any fire exits or fire
hydrants; (3) employing any indoor fireworks displays; and
(4) parking any vehicles in a manner which would obstruct
fire lanes, exits, means of egress to and from the property,
or otherwise cause a public nuisance or hazard during the
pendency of this cause of action. (Dkt. 49, at 17; PgID 209.)
response Plaintiff asserts much of the evidence Defendants
rely on in their motion is inadmissible and that the claims
of a fire hazard are fabricated. (Pl. Resp. Pre. Injunction;
Dkt. 57, at 5; PgID 372.)
Standard of Review
relief is an extraordinary remedy that should be granted only
if the movant carries the burden of proving that the
circumstances clearly demand it. Overstreet v.
Lexington-Fayette Urban Country Gov't, 305 F.3d 566,
573 (6th Cir. 2002). The proof required to obtain a
preliminary injunction is much more stringent than the proof
required to survive a summary judgment motion. Leary v.
Daeschner, 228 F.3d 729, 739 (6th Cir. 2000).
district court must balance the following four factors when
considering a motion for preliminary injunction:
(1) whether the movant has a strong likelihood of success on
the merits; (2) whether the movant would suffer irreparable
injury without the injunction; (3) whether issuance of the
injunction would cause substantial harm to others; and (4)
whether the public interest would be served by issuance of
City of Pontiac Retired Emps. Assoc. v. Schimmel,
751 F.3d 427, 430 (6th Cir. 2014)(enbanc)(internal quotation
marks and citations omitted). "None of these factors,
standing alone, is a prerequisite to relief; rather, the
court should balance them." Connection Distrib. Co.
v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). Nonetheless
"a finding that there is simply no likelihood of success
on the merits is usually fatal." Gonzales v.
Nat'l Bd. of Med. Examiners, 225 F.3d 620, 625 (6th
the purpose of a preliminary injunction is to preserve the
status quo. Smith Wholesale Co., Inc. v. R.J. Reynolds
Tobacco, 477 F.3d 854 873 n. 13 (6th Cir. 2007)
(quoting United States v. Edward Rose & Sons,
384 F.3d 258, 261 (6th Cir. 2004)).
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