United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT JOE DAUS'S
MOTION TO DISMISS 
STEPHEN J. MURPHY, III United States District Judge.
January 18, 2019, Plaintiff Crossroads Outdoor, LLC filed an
amended complaint alleging that Defendants Howell Township
("Township") and Joe Daus ("Daus")
violated its First, Fifth, and Fourteenth Amendment rights.
ECF 17. On January 29, 2019, Daus filed a motion to dismiss.
ECF 20. After multiple stipulated extensions of the time to
respond, Plaintiff filed its response. ECF 26. The Court has
reviewed the briefs and finds that a hearing is unnecessary.
E.D. Mich. LR 7.1(f). For the reasons below, the Court will
grant Daus's motion to dismiss.
many local governments, the Township enacted a zoning
ordinance to regulate and control certain signage within its
boundaries ("Ordinance"). ECF 17, PgID 113. In
January 2017, Plaintiff sought permission to install a
billboard at the American Legion Post 141
("American Legion") in the Township. Id.
Plaintiff emailed the application to Daus, the the
Township's Zoning Administrator. Id. at 112-14.
Daus forwarded the application to Paul Montagno, an outside
planning consultant, and asked for his review. Id.
at 120. Montagno advised that the sign application met
"many of [the Ordinance's] requirements" but
had two flaws: (1) it lacked critical "information about
the sign's illumination," and (2) it proposed
placing the billboard in the middle of a parking lot.
Id. at 121-22.
thereafter, Daus sent a letter to Plaintiff's
representative, Tony Lockridge, advising that the Township
was denying the sign permit because "placement of the
sign within the parking lot of an existing development is
unacceptable[.]" Id. at 122. During a
subsequent phone conversation, Daus responded that he did not
want a billboard at the American Legion. Id. Daus
believed that American Legion's only benefit to veterans
was serving them beer. Id. at 126-27.
response to Plaintiff's concern, Daus asked Montagno to
clarify which portion of the Ordinance prohibited
Plaintiff's American Legion application. Id. at
122. Montagno identified two sections of the Ordinance that
prohibited Plaintiff's proposed billboard-one section
involved a "principal use" limitation, which
required property improvements to comply with a final site
plan. Id. at 122-23. Then, Montagno and Lockridge
communicated further about the sign application. Id.
at 123-24. In March 2017, Plaintiff filed a revised
application for a sign at American Legion. Id. at
months later, American Legion representative Patrick Wright
filed an application to revise its site plan to allow for
Plaintiff's sign. Id. When Daus did not respond
within three weeks, Plaintiff's representative Kyle
Martin emailed him to check the status of the site plan
application. Id. Daus responded that he had
communicated with Wright who had not picked up particular
documents. Id. Up to and including July 2017, Martin
emailed with Daus about the site plan application.
Id. at 124-26. Throughout the remainder of 2017 and
into early 2018, Plaintiff and American Legion worked to
amend the proposed site plan application. Id. at
October 2017, the Township published revised regulations.
Id. On March 6, 2018, Plaintiff submitted an
application for another sign in the Township on Parsons Road.
Id. at 114. Then, On March 12, 2018, the Township
passed a sign moratorium ("Moratorium") that
prohibited "the location, erection, construction, or
installation of any signs or billboards" for 120 days.
Id. at 127. The Moratorium applied equally to all
signs. Id. at 129.
a March 2018 hearing on the site plan application, the
Township's Planning Commission declined to proceed
because of the Moratorium. Id. at 130. In July 2018,
the Township extended the Moratorium another 120 days.
Id. Plaintiff's sign applications have not been
analyzing a motion to dismiss under Rule 12(b)(6), the Court
views the complaint in the light most favorable to the
plaintiff, presumes the truth of all well-pleaded factual
allegations, and draws every reasonable inference in favor of
the non-moving party. Bassett v. Nat'l Collegiate
Athletic Ass'n, 528 F.3d 426, 430 (6th Cir. 2008)
(citations omitted). To survive a motion to dismiss,
"the complaint must contain either direct or inferential
allegations respecting all the material elements to sustain a
recovery under some viable legal theory." Nat'l
Hockey League Players Ass'n v. Plymouth Whalers Hockey
Club, 419 F.3d 462, 468 (6th Cir. 2005) (citation
omitted). Plaintiff must allege facts "sufficient
'to raise a right to relief above the speculative
level,' and to 'state a claim to relief that is
plausible on its face.'" Hensley Mfg. v.
ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 570 (2007)). If "a cause of action fails as a
matter of law, regardless of whether the plaintiff's
factual allegations are true," then the Court must
dismiss it. Winnett v. Caterpillar, Inc., 553 F.3d
1000, 1005 (6th Cir. 2009).
Suit Against Daus in His Official Capacity
sued Daus in his official capacity. ECF 17, PgID 112. Daus
argues that the official-capacity suit is redundant because
Plaintiff sued the Township. ECF 20, PgID 275-76. Plaintiff
responds that it named Daus "in his official capacity
only so he may respond" to Court orders and because the
Court may "need to ...