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Plan B Wellnes Center, LLC v. City of Detroit Board of Zoning Appeals

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

July 24, 2019

Plan B Wellness Center, LLC, and Jack Rayis, Plaintiffs,
v.
City of Detroit Board of Zoning Appeals, Alternative Care Choices, LLC, Marcelus Brice, and Gabe Leland, Defendants.

          OPINION AND ORDER GRANTING THE CITY DEFENDANTS' MOTION TO DISMISS (ECF NO. 14)

          SEAN F. COX UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         Plan B, 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.

         On 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.

         Rayis's 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.

         The Board and Leland (“the City Defendants”) now move to dismiss the complaint.[1] For the reasons below, the Court will grant the City Defendants' motion to dismiss.

         BACKGROUND

         Plaintiff 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.

         Plaintiffs 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.

         “Feeling 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 Defendants' application.

         Plaintiffs 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.

         Here are the allegations of wrongdoing from Plaintiffs' Complaint:

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 Order issued.
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 ordinances.
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 ...

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