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Bazzy Investments v. City of Dearborn

United States District Court, E.D. Michigan, Southern Division

August 2, 2018

BAZZY INVESTMENTS, Plaintiff,
v.
CITY OF DEARBORN, ET AL., Defendants.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR PRELIMINARY INJUNCTION

          NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.

         Defendant 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 "obey-the-law" injunction.

         Plaintiff's 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 injunction.

         I. Facts

         Plaintiff 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 40 employees.

         Plaintiff 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[1]. 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[2].

         Over 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 discrepancy.

         In May 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.)

         In 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. (Id.)

         On 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 2001." (Id.)

         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.

         On 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[3] is electronic, does not require a fire permit because there is no flame, heat, or fire hazard. Defendants disputed this assertion at the hearing.

         Defendant 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.)

         In 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.)

         II. Standard of Review

         Injunctive 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).

         The 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 the injunction.

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 Cir. 2000).

         Generally, 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)).

         III. Analysis

         A. Available Evidence ...


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