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Crossroads Outdoor LLC v. Townshihp

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

April 16, 2019

CROSSROADS OUTDOOR LLC, Plaintiff,
v.
HOWELL TOWNSHIP and JOE DAUS, Defendants.

          OPINION AND ORDER GRANTING DEFENDANT JOE DAUS'S MOTION TO DISMISS [20]

          STEPHEN J. MURPHY, III United States District Judge.

         On 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.

         BACKGROUND [1]

         Like 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[2] 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.

         Shortly 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.

         In 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 124.

         Two 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 127.

         In 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.

         During 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 approved. Id.

         STANDARD OF REVIEW

         When 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).

         DISCUSSION

         I. Suit Against Daus in His Official Capacity

         Plaintiff 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 ...


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