United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING THE CITY DEFENDANTS'
MOTION TO DISMISS (ECF NO. 14)
F. COX UNITED STATES DISTRICT JUDGE
Jack Rayis owns the Plan B Wellness Center, a medical
marijuana provisioning facility. In April 2017, a competing
medical marijuana provisioning facility began the process of
opening up fifty feet away from Plan B. This new facility
applied for a special land use permit and for a waiver of
certain zoning requirements. The City of Detroit's Zoning
Appeals Board approved the new facility's application.
unhappy with the Board's decision, appealed to the Wayne
County Circuit Court, which vacated the Board's approval
and ordered a new hearing on the application. The Board again
approved the permit and zoning waiver.
November 2, 2018, Rayis filed this §1983 civil rights
action on behalf of himself and Plan B. Plaintiffs allege
that, in approving the application for a second time, the
Board violated their due process rights by not acting as an
impartial decisionmaker, and retaliated against them for
exercising their First Amendment rights. Rayis also alleges
that the owner of the new facility conspired with the Board
to retaliate against him.
complaint also names Detroit City Councilman Gabe Leland as a
defendant, but none of the substantive counts are directed
against him. Rayis appears to allege that Leland was somehow
improperly involved in the decision to deny the application
for a second time.
Board and Leland (“the City Defendants”) now move
to dismiss the complaint. For the reasons below, the Court will
grant the City Defendants' motion to dismiss.
Jack Rayis owns Plaintiff Plan B Wellness Center L.L.C.,
which is a medical marijuana provisioning facility. Compl.
¶ 5-6. In April 2017, Defendant Alternative Care
Choices, L.L.C., which is owned by Defendant Marcelus Brice
(collectively “the Corporate Defendants”),
entered into a land contract to purchase a building
“merely 50 feet away” from Plan B's location.
Id. at ¶ 9, 13. Thereafter, the Corporate
Defendants applied for a special land use permit to operate
as a medical marijuana provisioning facility and for a waiver
of “the 1, 000 ft. spacing requirement set forth in
Section 61-3-354(b) of the City of Detroit's 2015 Zoning
Ordinance.” Id. at ¶ 14-15.
opposed the Corporate Defendants' application.
Id. “Despite strong opposition from local
residents of the neighborhood, local businesses, a
neighboring municipality, and a recommendation to deny by the
City of Detroit's own Planning Department, the City of
Detroit's Building, Safety, Engineering, and
Environmental Department (“BSEED”) unlawfully
approved [the Corporate Defendants']
application...” Id. at ¶ 16.
“Relying on BSEED's recommendation, ” the
City of Detroit's Zoning Appeals Board approved the
application. Id. at ¶ 17.
aggrieved, ” Plaintiffs appealed the Board's
decision to the Wayne County Circuit Court. Id. at
¶ 18. On June 12, 2018, the Honorable Daniel Hathaway
vacated the Board's decision and ordered the Board to
“hold a de novo hearing with respect to Plaintiffs'
objections” to the Corporate Defendants'
application. Id. at ¶ 19. The Board held
another hearing and again approved the Corporate
current lawsuit stems from how they allege the Board handled
the application and treated them on remand. Generally, they
allege that the Board demonstrated personal animus and
ill-will toward them because they were successful in their
appeal to the Wayne County Circuit Court. The Board's
bias, Plaintiffs contend, was further fueled by bribes from
the Corporate Defendants, who also enlisted Councilman Leland
to influence members of the Board.
are the allegations of wrongdoing from Plaintiffs'
22. After the Wayne County Circuit Court's decision, the
Defendant Zoning Board rushed the hearing to the front of the
line and issued notices for a new hearing only ten (10) days
after the Wayne County Circuit Court's June 12, 2018
23. The Defendant Zoning Board scheduled a new hearing to be
held on July 10, 2018.
24. At the July 10, 2018 hearing, Defendants ACC and Brice
and their attorney specifically refused to discuss any of the
prior arguments that it had made. Defendants ACC's and
Brice's only argument to the Defendant Zoning Board at
July 10, 2018 hearing was that Defendant Brice was a good
person who somehow deserved this waiver despite the clear and
unambiguous language of the City of Detroit's Zoning
25. During the July 10, 2018 hearing, evidence was provided
that (1) there was strong community opposition to having two
marijuana facilities in such close proximity, (2) that the
City of Detroit's Planning Department opposed the waiver,
and (3) it was public record that Plaintiff Plan B was
legally operating under the City of Detroit's Code of
Municipal Ordinances at the time it made its application and
purchased the property.
26. Ignoring the evidence in the record, and the specific
instructions given by Wayne County Circuit Judge Daniel
Hathaway, the Defendant Zoning Board again approved
Defendants ACC and Brice's request for ...