Epicurean Developments LLC v. Summit Township

STATE OF MICHIGAN
COURT OF APPEALS
EPICUREAN DEVELOPMENTS, LLC, and THE UNPUBLISHED
CLUB AT 4200, LLC, February 28, 2017
Plaintiff-Appellants,
v Nos. 329060, 334355
Jackson Circuit Court
SUMMIT TOWNSHIP, LC Nos. 15-001519-CH,
15-003265-AA
Defendant-Appellee.
Before: HOEKSTRA, P.J., and SAAD and RIORDAN, JJ.
PER CURIAM.
In Docket No. 329060, plaintiffs Epicurean Developments, LLC, (“Epicurean”) and The
Club at 4200, LLC, (“The Club”) appeal as of right the trial court order granting defendant
Summit Township’s motion for summary disposition, denying plaintiffs’ motion requesting
injunctive and mandamus relief, and dismissing plaintiffs’ complaint without prejudice and
without costs or attorney fees. In Docket No. 334355, plaintiffs appeal by leave granted the
circuit court order affirming the Summit Township Zoning Board of Appeals’ (“ZBA”) decision,
which found that plaintiffs’ proposed land use did not qualify as a “club” under the Summit
Township Zoning Ordinance (“STZO”), and rejecting the other claims that plaintiffs raised in
their appeal of the ZBA’s decision. On September 20, 2016, we granted plaintiffs’ application
for leave to appeal in Docket No. 334355 and consolidated the two appeals on our own motion in
the same order.1 We affirm in both appeals.
I. FACTUAL BACKGROUND
In December 2014, plaintiff Epicurean purchased a vacant commercial building located at
4200 Spring Arbor Road, Summit Township, Michigan. Plaintiff The Club entered into a lease
with Epicurean to rent the premises “for the purpose of operating a club” that would open when
renovations to the property were completed.
1
Epicurean Developments LLC v Summit Township, unpublished order of the Court of Appeals,
entered September 20, 2016 (Docket Nos. 329060, 334355).
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On January 22, 2015, plaintiff Epicurean filed an application for a building permit and
plan examination, which was received by John Worden, the Summit Township Zoning
Administrator. Epicurean described the proposed use of the building as a “Private Membership
Club – Frame walls for mens/womens [sic] bathrooms. All walls framed to be interior non-load
bearing.” Similarly, Epicurean’s description of the building construction stated, “Move and
frame walls for restrooms etc. All walls to be interior-non load bearing walls.”
The exact nature of plaintiff Epicurean’s application and the approvals that were provided
in response to the application is disputed by the parties and unclear from the documentation in
the lower court record. Worden believed that the application was “approved as a remodel project
on January 23, 2015.” However, according to Kent Tyler, a member of both plaintiffs,
Epicurean had “applied to the Township for a building permit for the Club’s use of the Subject
Property as a club” on January 22, 2015, and received “zoning approval for the proposed club”
on January 23, 2015, prompting plaintiff Epicurean to “commence demolition” inside the
building. However, the parties seem to agree that defendant informed plaintiff Epicurean, at
some point in time, that the initial site plan submitted with its building permit and plan
examination application was insufficient, and that an administrative site plan review with sealed
architectural drawings was required.
In February 2015, plaintiff Epicurean submitted an application for site plan review and
also submitted additional site plans. Under the section of the application requesting a “narrative
description” of the “proposed use/request,” plaintiff Epicurean stated, “Private Membership Club
in which 50% of members will be shuttled to and from area hotels. Not requesting onsite
parking.” The next day, defendant issued a building permit to Epicurean approving renovation
of the building “to use as ‘private membership club’ per building application.” According to
Tyler, upon receiving the building permit, Epicurean entered into construction contracts related
to the property and immediately initiated construction.
In his affidavit, Worden stated that it later became apparent to defendant that plaintiffs
did not intend for the property to be used solely as a “private membership club,” and that
plaintiff Epicurean had not disclosed the actual intended use of the property when it submitted
the additional plans to defendant in February 2015. According to Worden, it was clear that the
proposed use was not merely a “private membership club” based on plaintiffs’ website,
www.theclubat4200.com, which stated that the building at issue was currently being renovated in
Jackson, Michigan, in order to become “a private members only club for couples” “who are
interested in meeting others who want camaraderie,” with amenities such as a sports bar, a dance
club, and multiple seating areas. The club membership application on the website asked
applicants to provide their IDs from the “swinglifestyle” website, which provides information,
listings, dating services, and an online forum for “adult swingers.”
In March 2015, defendant’s attorneys sent a letter to plaintiff Epicurean’s attorney, which
stated, in part:
The Zoning Administrator has requested our review and assistance
regarding your letter dated March 13, 2015, as well as your clients’ February 18,
2015 zoning application. Our review of those documents indicates that your
clients alternatively describe their proposed uses of the Property as a “dance
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club,” a “private membership club,” a “private membership club in which 50% of
members will be shuttled to and from area hotels and not requiring onsite
parking,” and “business will have no employees, but rather will be directed by
members of the private club.”
The Property is located in the Township’s C-2 District, General
Commercial. In order for any uses to be lawfully located on the Property, they
must be limited to the listed uses allowed in the C-2 District under Sec 150.145 of
the Zoning Ordinance. That section lists a number of permitted and conditional
uses in the C-2 District, but neither a “dance club” nor or a “private membership
club” that principally serves “hotel guests” and has “no employees” are within
any of the listed uses. Therefore, the Zoning Administrator may not grant your
clients administrative approval of a site plan for these land uses.
* * *
As circumstances presently stand, your clients do not have any zoning
approval to conduct any land uses on the Property. Your clients are not
authorized to proceed with improvements to the Property that would be intended
for any particular land uses, since at this time there is no approved land use. We
strongly recommend that your clients obtain conditional use permit approval for
any specific land uses on the Property before making any improvements.
Later in March, James R. Dunn, the Summit Township Supervisor, mailed a letter to Kent
and Angela Tyler of plaintiff Epicurean, which stated, in relevant part:
This letter is to notify you of action being taken by Summit Township,
subsequent to correspondence delivered to your legal counsel, Michael K. Falahee
of White, Hotchkiss & Falahee, PLLC regarding your building and property at
4200 Spring Arbor Road, Jackson, Ml (copy attached).
Please be advised that your Summit Township Zoning Application for an
“administrative site plan” review for 4200 Spring Arbor Road is being rescinded
and returned to you with a refund of your application fee herewith. Consequently,
any Building, Mechanical, Electrical and/or Plumbing Permits previously issued
for renovations at this address are hereby suspended and all such work is to cease
immediately.
Further, per the correspondence to your legal counsel, referred to above,
you will need to apply for and receive a conditional use permit before making any
improvements to this property.
On the same day, a stop-work order, signed by Worden, was delivered to plaintiffs’ property
based on a violation of §150.145 of the STZO.
In June 2015, plaintiffs filed a complaint in the Jackson Circuit Court, which raised a
variety of claims challenging defendant’s issuance of the stop-work order. Ultimately, defendant
filed a motion for summary disposition under MCR 2.116(C)(4), (C)(8), and (C)(10), arguing,
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inter alia, that dismissal of plaintiffs’ complaint was proper because they had failed to exhaust
available administrative remedies, including, among other things, appealing defendant’s issuance
of the stop work order to the Summit Township ZBA. Plaintiffs disagreed and contested
defendant’s motion for summary disposition on numerous grounds, arguing that they were not
required to initiate any proceedings before the ZBA under the circumstances of this case.
The trial court agreed with defendant, granting defendant’s motion solely based on its
conclusion that plaintiffs were required to appeal any administrative zoning decision to the ZBA
before filing a lawsuit in circuit court, such that plaintiffs’ claims were not ripe for adjudication
due to their failure to exhaust their administrative remedies. Accordingly, the trial court
dismissed plaintiffs’ complaint without prejudice. During its ruling on the record, the trial court
commented that it was likely that the parties would appear before the court again in the future,
but it reiterated its belief that it was necessary for plaintiffs to exhaust their administrative
remedies before they asked the circuit court to intervene.
In September 2015, plaintiffs filed a claim of appeal in this Court, commencing the
appeal in Docket No. 329060. Notably, plaintiffs raised several arguments contesting the trial
court’s conclusion that plaintiffs were required to exhaust their administrative remedies before
pursuing the case in circuit court.
Then, later the same month, plaintiffs filed an application with the Summit Township
ZBA, which, in effect, constituted an appeal of defendant’s interpretation of the zoning
ordinance finding that plaintiffs’ proposed use was not permitted in the C-2 zoning district and
defendant’s related issuance of the stop-work order. In short, plaintiffs contended that their
proposed use, a “private membership club,” qualified under the “clubs and lodges” category of
permitted uses in C-2 zoning districts pursuant to § 150.145 of the STZO. After reviewing
documentation submitted by the parties and holding a public hearing, during which the parties
presented extensive arguments and additional materials, the ZBA concluded, by a 6-1 vote, that
plaintiffs’ proposed use was not permitted under the “clubs and lodges” designation.
In December 2015, plaintiffs appealed the ZBA’s decision to the Jackson Circuit Court,
contesting the ZBA’s decision on essentially the same grounds raised in their appeal in this Court
in Docket No. 334355. After holding a hearing, the circuit court entered an order affirming the
ZBA’s decision.
II. GENERAL STANDARDS OF REVIEW
MCL 125.3606(1) sets forth the standard for a circuit court’s review of a ZBA decision:
The circuit court shall review the record and decision to ensure that the decision
meets all of the following requirements:
(a) Complies with the constitution and laws of the state.
(b) Is based upon proper procedure.
(c) Is supported by competent, material, and substantial evidence on the
record.
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(d) Represents the reasonable exercise of discretion granted by law to the
zoning board of appeals.
On appeal, we review the circuit court’s decision de novo, “ ‘while giving great deference
to the [circuit] court and zoning board’s findings.’ ” Edw C Levy Co v Marine City Zoning Bd of
Appeals, 293 Mich App 333, 340; 810 NW2d 621 (2011) (alteration in original), quoting
Norman Corp v City of East Tawas, 263 Mich App 194, 198; 687 NW2d 861 (2004). Stated
differently:
This Court reviews the circuit court’s determination regarding ZBA findings to
determine “whether the lower court applied correct legal principles and whether it
misapprehended or grossly misapplied the substantial evidence test to the [ZBA]’s
factual findings.” Boyd v Civil Service Comm, 220 Mich App 226, 234; 559
NW2d 342 (1996). This standard regarding the substantial evidence test is the
same as the familiar “clearly erroneous” standard. Id. A finding is clearly
erroneous if the reviewing court, on the whole record, is left with the definite and
firm conviction that a mistake has been made. Id. at 234-235. [Hughes v Almena
Twp, 284 Mich App 50, 60; 771 NW2d 453 (2009) (footnote omitted).]
III. DOCKET NO. 334355
A. PROPER INTERPRETATION OF “CLUBS AND LODGES”
Plaintiffs first contend that the ZBA incorrectly interpreted “clubs and lodges” under §
150.145 of the STZO, erroneously concluding that plaintiffs’ proposed use was not permitted
under that category, and that the circuit court erred in affirming the ZBA’s interpretation.
Plaintiffs also argue that the circuit court erred when it failed to find that the ZBA improperly
considered “extrinsic evidence” when it interpreted “clubs and lodges.” We disagree.
1. STANDARD OF REVIEW AND APPLICABLE LAW
In Great Lakes Soc v Georgetown Charter Twp, 281 Mich App 396, 407-408; 761 NW2d
371 (2008), we succinctly summarized the standard of review and guiding legal principles that
are applicable to the interpretation of the STZO in this case:
Ordinances are treated as statutes for the purposes of interpretation and
review. Soupal v Shady View, Inc, 469 Mich 458, 462; 672 NW2d 171 (2003).
Hence, the interpretation and application of a municipal ordinance presents a
question of law, which this Court reviews de novo. City of Riverview v Sibley
Limestone, 270 Mich App 627, 630; 716 NW2d 615 (2006). The goal of statutory
construction, and thus of construction and interpretation of an ordinance, is to
discern and give effect to the intent of the legislative body. Neal v Wilkes, 470
Mich 661, 665; 685 NW2d 648 (2004). Terms used in an ordinance must be
given their plain and ordinary meanings, and it is appropriate to consult a
dictionary for definitions. See Halloran v Bhan, 470 Mich 572, 578; 683 NW2d
129 (2004).
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Generally, courts review a decision of a zoning board to determine
whether it complies with the constitution and the laws of the state, is based on
proper procedure, is supported by competent, material, and substantial evidence
on the record, and represents the reasonable exercise of the board’s discretion.
MCL 125.3606. The determination of “ ‘the facts which, taken together, can be
said to describe the situation’ ” presented by [plaintiffs’] practices and building
proposal is a factual matter, and the ZBA decisions in that regard are entitled to
deference. Macenas v Village of Michiana, 433 Mich 380, 395-396; 446 NW2d
102 (1989) (citation omitted). However, the manner in which the zoning
ordinance applies to those facts, i.e., whether the proposed building is a [“club”]
for purposes of the ordinance, is a question of law, for this Court to decide as a
matter of review de novo. Id. at 396.
It is important to keep in mind the following principles of statutory construction:
When faced with questions of statutory interpretation, our obligation is to discern
and give effect to the Legislature’s intent as expressed in the words of the statute.
We give the words of a statute their plain and ordinary meaning, looking outside
the statute to ascertain the Legislature’s intent only if the statutory language is
ambiguous. [In re Petition of Attorney Gen for Investigative Subpoenas, 282
Mich App 585, 591; 766 NW2d 675 (2009) (quotation marks and citation
omitted).]
Additionally,
[a]s far as possible, effect should be given to every phrase, clause, and word in the
statute. The statutory language must be read and understood in its grammatical
context, unless it is clear that something different was intended. Finally, in
defining particular words in statutes, we must consider both the plain meaning of
the critical word or phrase as well as its placement and purpose in the statutory
scheme. [Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008)
(quotation marks and citations omitted; alteration in original).]
Similarly, the STZO provides that any term not defined in the zoning ordinance “shall
have the meaning of common or standard use.” Summit Township Ordinances, § 150.006. A
use is “common” if it is the “widespread,” “general,” or “popular” use. Merriam-Webster’s
Collegiate Dictionary (11th ed). Likewise, a use constitutes a “standard” use if it is “regularly
and widely used,” “well-established and very familiar,” or “substantially uniform and well
established by usage in the speech and writing of the educated and widely recognized as
acceptable.” Id.
“If the plain and ordinary meaning of the language is clear, judicial construction is
normally neither necessary nor permitted.” Norman Corp, 263 Mich App at 206-207. See also
Alvan Motor Freight, Inc v Dep’t of Treasury, 281 Mich App 35, 39; 761 NW2d 269 (2008).
But if the meaning of the language is nebulous or ambiguous, judicial construction may be
necessary to resolve the ambiguity. Risko v Grand Haven Charter Twp Zoning Bd of Appeals,
284 Mich App 453, 461; 773 NW2d 730 (2009). “A provision in a statute is ambiguous only if it
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irreconcilably conflicts with another provision, or when it is equally susceptible to more than a
single meaning.” Alvan Motor Freight, 281 Mich App at 39-40. “[I]n cases of ambiguity in a
municipal zoning ordinance, where a construction has been applied over an extended period by
the officer or agency charged with its administration, that construction should be accorded great
weight in determining the meaning of the ordinance.” Macenas, 433 Mich at 398. See also
Sinelli v Birmingham Bd of Zoning Appeals, 160 Mich App 649, 652; 408 NW2d 412 (1987).
The court is not free to substitute its judgment by imposing what it considers to be
the wisest version of the ordinance, but is confined to an analysis of the text of the
ordinance and, in the face of ambiguity, a determination of what the legislative
body that enacted the ordinance intended by the language in question. [Macenas,
433 Mich at 396-397.]
2. ANALYSIS
As an initial matter, it is important to establish the nature of the request that plaintiffs
submitted to the ZBA. On the face of the application, plaintiffs requested “Zoning Ordinance
Interpretation.” However, under the section requesting a “narrative description of proposed
use/request,” plaintiffs directed the ZBA’s attention to an attached explanation, in which
plaintiffs detailed the applications that it had filed with defendant, defendant’s issuance of a
building permit, and the events before and after John Worden, the Township Zoning
Administrator, issued the stop-work order. Plaintiffs specifically contended that “[t]he Township
Zoning [Administrator’s] issuance of a stop[-]work order for the above property on March 26,
2015, alleging that the proposed use of a ‘club’ is not a permitted use under the Township’s
zoning ordinance is legally incorrect.” Plaintiffs also expressly “request[ed] an interpretation of
the zoning ordinance permitting [plaintiffs’] use.” After explaining in detail their arguments
regarding why the stop-work order was improper, plaintiffs concluded the attached explanation
with the following statement:
For the foregoing reasons, a person purchasing property in the Township
could not be reasonably notified that the definition of “Clubs and Lodges” was so
limited. . . . The interpretation of “club” in section 150.145, where the term is
not explicitly limited, by the Township is unreasonable, and is without basis in
either the ordinance or Michigan law. [Emphasis added.]
Accordingly, although plaintiffs specifically requested interpretation of the zoning
ordinance, it is clear that they were, in effect, also seeking review of the Township Zoning
Administrator’s issuance of the stop-work order. Therefore, plaintiffs’ application constituted a
request for interpretation in the context of an appeal of defendant’s previous interpretation of the
zoning ordinance and issuance of the stop-work order.2 As such, plaintiffs mischaracterize the
2
See Summit Township Ordinances, § 150.366 (“The Zoning Board of Appeals shall hear and
decide appeals where it is alleged by the applicant there is an error in any order, requirement,
permit, decision, or refusal made by the Zoning Administrator or any other administrative
official in carrying out or enforcing any provisions of this chapter including interpretations of the
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record when they claim in their brief on appeal that they “sought an interpretation of the STZO
independent of any factual issues,” as they clearly sought a determination of whether their
proposed land use was permitted under the ordinance and whether the stop-work order was
improper.
We also reject plaintiffs’ claim that the ZBA improperly considered evidence apart from
the text of the STZO and that the circuit court applied an incorrect standard of review. The
consideration of documentary evidence related to the question before the ZBA is expressly
contemplated under the STZO, which provides that “[t]he Zoning Administrator shall transmit to
the Board of Appeals copies of all papers constituting the record upon which the action appealed
was taken 7 days prior to the Next Zoning Board of Appeals meeting.” Summit Township
Ordinances, § 150.369(A)(8) (emphasis added). Further, given plaintiffs’ opaque label
describing the proposed use, the ZBA necessarily needed to consider the evidence proffered by
the parties in order to ascertain the actual use intended by plaintiffs and make a determination
regarding whether that use was permitted under the STZO. Plaintiffs never provided a
straightforward description of their proposed use, and their oft-repeated description (“a private
membership club”) offers little insight regarding the actual activities for which the site would be
used. Notably, plaintiffs presented email correspondence at the ZBA hearing to show that their
proposed use was desired or unopposed by the community, undermining their claim that the
ZBA should not have considered any evidence outside of the zoning ordinance in rendering its
decision. Therefore, to the extent that plaintiffs contend that the ZBA improperly considered
extrinsic evidence regarding the nature of their proposed use, and that the trial court improperly
considered the ZBA’s factual findings in reviewing the ZBA’s decision, these claims have no
merit. See also Fisher et al., Michigan Zoning, Planning, and Land Use (ICLE, January 2016
Update), pp 257, 259 (explaining the common practice, and importance, of submitting all
evidence in support of a request to the ZBA prior to the hearing, and recommending that a party
preparing for a ZBA hearing request copies of reports or other materials prepared by township
agencies, if they are not automatically provided, “so that it is fully appraised of any facts or
recommendations that will need to be addressed at the hearing”).
Likewise, the circuit court was required to review the ZBA’s factual findings in light of
the evidence in the record, see Great Lakes Soc, 281 Mich App at 407-408, and the circuit court
and this Court are required to give deference to the ZBA’s findings of fact, Edw C Levy Co, 293
Mich App at 341, including “[t]he determination of the facts which, taken together, can be said
to describe the situation presented by [plaintiffs’] practices and building proposal,” Great Lakes
Soc, 281 Mich App at 407-408, quoting Macenas, 433 Mich at 395-396. The circuit court
applied the proper standard of review, and we must give deference to the ZBA’s determination of
the particular land use proposed by plaintiffs, which it characterized as a “swinger’s club.”3
Zoning Map.”), § 150.369(A)(1)-(3) (explaining how appeals to the ZBA are taken); MCL
125.3603(1) (delineating the general powers and duties of a ZBA under state law); MCL
125.3604 (discussing appeals to a ZBA).
3
It is noteworthy that one of the emails proffered by plaintiffs at the ZBA hearing acknowledged
that the proposed use was a “swingers club,” as the email described the proposed club as a
“private dance hall and social club” that would cater to “swingers.” Accordingly, when
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Next, contrary to plaintiffs’ claim, it appears that several definitions may apply to the
term “club” when it is used to denote a land use in a zoning ordinance. Merriam-Webster’s
Collegiate Dictionary (11th ed) defines “club,” in relevant part, as “an association of persons for
some common object usu. jointly supported and meeting periodically; also : a group identified
by some common characteristic,” “the meeting place of a club,” “an association of persons
participating in a plan by which they agree to make regular payments or purchases in order to
secure some advantage,” “an athletic association or a team,” and, as a synonymous cross
reference, a “nightclub.”4 In the dictionary, “a synonymous cross-reference indicates that a
definition at the entry cross-referenced to can be substituted as a definition for the entry or the
sense or subsense in which the cross-reference appears.” Merriam-Webster’s Collegiate
Dictionary (11th ed), p 24a. “Nightclub” is defined as “a place of entertainment open at night
usu. serving food and liquor and providing music and space for dancing and often having a floor
show.” Id.
In considering these definitions, it is clear that various—and distinct—land uses may be
represented through the use of the term “club” in a zoning ordinance. As a result, we agree with
the circuit court that the term “clubs” was ambiguous, as its meaning is nebulous or equally
susceptible to multiple meanings. See Alvan Motor Freight, Inc, 281 Mich App at 39-40
(explaining when a statutory provision is ambiguous). Accordingly, it was necessary for the
ZBA to interpret the meaning of “club” in the context of the STZO. See Risko, 284 Mich App at
461 (“Because this analysis remains somewhat nebulous, we find that judicial construction of the
phrase . . . is necessary to resolve the ambiguity), citing People v Denio, 454 Mich 691, 699; 564
NW2d 13 (1997); Norman Corp, 263 Mich App at 206-207 (stating that if the ordinance
language clearly indicates a particular outcome or meaning, “interpretation by the ZBA [is] . . .
neither necessary nor permitted.”).
Other provisions in the STZO shed light on the intended meaning of “clubs.” See
Michigan Properties, LLC v Meridian Twp, 491 Mich 518, 528; 817 NW2d 548 (2012) (“When
considering the correct interpretation, the statute must be read as a whole. Individual words and
phrases, while important, should be read in the context of the entire legislative scheme.”)
considering all of the evidence in the ZBA record, it is clear that plaintiffs are incorrect in
claiming that the ZBA’s characterization of their proposed use has no basis in the record.
4
Other dictionaries provide similar definitions of “club.” Webster’s New World College
Dictionary (5th ed) defines “club” as “a group of people associated for a common purpose or
mutual advantage, usually in an organization that meets regularly: see also book club,” or “the
room, building, or facilities used by such a group”; “an organization that owns, controls, or
sponsors and athletic team,” or “the team playing for or representing such an organization”; and
“a nightclub.” The American Heritage Dictionary (5th ed) defines club as “[a] group of people
organized for a common purpose, especially a group that meets regularly: a garden club,” “[t]he
building, room, or other facility used for the meetings of an organized group,” and “[a] night
club.” The New Oxford American Dictionary (3rd ed) defines “club” as “an association or
organization dedicated to a particular interest or activity,” “the building or facilities used by such
an association,” “an organization or facility offering members social amenities, meals, and
temporary residence,” “a nightclub,” and “an organization constituted to play games in a
particular sport.”
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(citations omitted). We agree with defendant and the circuit court that “clubs” and “lodges”
must be construed together based on the way in which permitted and conditional land uses are
presented in § 150.145 of the STZO. In reviewing that section as a whole, it is apparent that the
table delineates permitted and conditional land uses by category, grouping similar uses together
in the same row. Consider, for example, the following groupings of similar uses in § 150.145:
“[a]dult day care or child care centers,” “[a]nimal parks, zoos, and aquariums,” “[b]anquet
hall[s], reception hall[s], and convention center[s],” “[b]anks and credit unions,” “churches and
other buildings for religious worship,” “[h]otels and motels,” “[o]ffices of an executive,
administrative, professional, or similar nature,” and “[p]ublic swimming pools, recreation
centers, parks, playgrounds, and play fields.” Summit Township Ordinances, § 150.145.
Accordingly, because “clubs and lodges” are grouped together, it is reasonable to conclude that a
definition of “club” similar in nature to the definition of “lodge” applies for purposes of §
150.145.5 Likewise, as the circuit court noted, reading the ordinance as a whole reveals that the
only reasonable interpretation “is to read the term ‘clubs and lodges’ as not including every
conceivable kind of club.”6
Definitions of “lodge” that constitute potential land uses include “a house set apart for
residence in a particular season (such as the hunting season),” “a resort hotel : inn,” “a house on
an estate originally for the use of a gamekeeper, caretaker, or porter,” “a shelter for an employee
(such as a gatekeeper),” and “the meeting place of a branch of an organization and especially a
fraternal organization ,” or “the body of members of such a branch.”
Merriam-Webster’s Collegiate Dictionary (11th ed). Thus, when considered in light of the
definitions of “clubs” previously mentioned, the definitions of “lodge” similar in nature to viable
definitions of “club” include the meeting place of an organization, or the branch of an
organization. Likewise, similar definitions of “club” include the meeting place of an association
or group coming together for, or identified by, a particular characteristic, purpose, or plan. See
id.
5
For all of these reasons, we reject plaintiffs’ claim that reading the ordinance in such a way
renders either “clubs” or “lodges” surplusage, or that such a reading means that “clubs” would
have the same meaning as “lodges.” Contrary to plaintiffs’ claims, both the grammatical context
of the ordinance as well as the framework of the ordinance as whole shows that “clubs and
lodges” was intended to denote a category of similar land uses, but not necessarily identical uses.
6
This conclusion is supported by the fact that “adult physical culture establishments” are
designated as a land use separate from “clubs and lodges” under § 150.145(5), and the “adult
physical culture establishments” category encompasses “clubs” that fulfill the definition of
“adult physical culture establishment.” See Summit Township Ordinances, § 150.006 (defining
“adult physical culture establishment” as “[a]ny establishment, club, or business by whatever
name designated, which offers or advertises or is equipped or arranged so as to provide as part of
its services massages, body rubs, alcohol rubs, physical stimulation, baths, or other similar
treatment by any person.”) (emphasis added). Likewise, “country clubs” are classified as a
separate land use and are only permitted as conditional uses in RNF-1, RS-1, and RS-2 zoning
districts. See § 150.145(45).
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Moreover, in considering the similar definitions of “club” and “lodge,” it appears that a
“night club” is not the type of “club” intended by § 150.145(38), given the fact that eating and
drinking establishments, as well as establishments offering nightly entertainment, are included
under separate zoning categories. See, e.g., § 150.145(34), (61)-(63).7
Additionally, as previously mentioned, determining the legislative purpose or intent of a
statutory provision requires consideration of the provision’s context. Herman, 481 Mich at 36.
“This critical word context embraces not just textual purpose but also (1) a word’s historical
associations acquired from recurrent patterns of past usage, and (2) a word’s immediate syntactic
setting—that is, the words that surround it in a specific utterance.” Scalia & Garner, Reading
Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 33. See also
Arrowhead Dev Co v Livingston Co Rd Comm'n, 413 Mich 505, 516; 322 NW2d 702 (1982)
(explaining that sections of a statute “must be read in context with the entire act, and the words
and phrases used there must be assigned such meanings as are in harmony with the whole of the
statute, construed in the light of history and common sense.”) (emphasis added). Moreover,
because the meaning of “club” is ambiguous in the context of the STZO, it is permissible to look
outside the ordinance to ascertain the drafter’s intent. See In re Petition of Attorney Gen for
Investigative Subpoenas, 282 Mich App at 591. Accordingly, the ZBA properly considered the
use of “clubs” and “lodges” in previous versions of the zoning ordinance in ascertaining the
meaning of “clubs and lodges” under the current version of the STZO.
Significantly, the historical, and recurring, use of “clubs” and “lodges” in prior versions
of the STZO supports the ZBA’s interpretation and application of the phrase “clubs and lodges”
for purposes of § 150.145(38). The version of the STZO enacted on July 10, 1956, listed the
following as a category of uses permitted in R-1 One Family Residential Districts: “Community
buildings, country clubs, fraternal lodges, or similar civic or social clubs (but not a residential
club, or a club operated as a commercial enterprise), after approval granted by the Board of
Appeals.” Zoning Ordinance for Summit Township, § 4.01(j), as adopted July 10, 1956. The
version in effect in 1967 similarly provided that “[c]ommunity buildings, fraternal lodges and
similar civic and social clubs (but not a residential club or a club operated as a commercial
enterprise)” were permitted in R-1 and R-2 zoning districts following approval and authorization
by the ZBA. Zoning Ordinance for Summit Township, §§ 4.02(k), 5.02(d), as amended
November 14, 1961. Additionally, “[c]ommunity buildings, fraternal lodges, and similar civic
and social clubs (but not a residential club or a club operated as a commercial enterprise)” were
permitted in R-3 Districts even without approval or authorization from the ZBA. Id. at § 5.05(d).
Lastly, the version of the STZO enacted in August 1971, which was prepared by both the
Summit Township Planning Commission as well as the Jackson Metropolitan Area Regional
7
The only time that the phrase “night clubs” is referenced in the zoning ordinance is in the table
prescribing the parking space requirements for specific land uses, where it appears with
“Restaurants, Beer Parlors, [and] Taverns.” See § 150.222. Accordingly, it seems reasonable to
assume that the drafters of the ordinance intended for “night clubs” to fall under a category other
than “clubs and lodges” for purposes of § 150.145.
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Planning Commission,8 provided that “[c]lubs and lodges” were permitted in C-2 General
Commercial Districts, the classification at issue in the instant case. Zoning Ordinance for the
Township of Summit, § 4.4.2, as amended August 1971. None of these categories encompassed,
as a conditional use or permitted use, a nightclub-like establishment as a “club” when that term
was used within the same category as “lodges.” Rather, the term appeared to consistently denote
civic or social clubs.
In light of the foregoing, the ZBA did not err in concluding, and the circuit court properly
affirmed the ZBA’s conclusion, that plaintiffs’ proposed land use is not consistent with the
“clubs and lodges” permitted in C-2 zoning districts. As the ZBA noted, plaintiffs’ proposed use
included, among several other things, a “dance club.” This factual finding is supported by
documentary evidence from the initial circuit court case (LC No. 15-001519-CH), which was
made part of the ZBA record, including Kent Tyler’s affidavit (proffered by plaintiffs), the
printouts of plaintiffs’ website advertising the anticipated club, and plaintiffs’ submitted site
plans (both proffered by defendants). A review of this evidence confirms that plaintiffs’
proposed land use constituted much more than “a private membership club,” or a meeting or
gathering place for an organization or group united by a common purpose or interest. Rather, it
constituted, in effect, a “nightclub” with various amenities.9 See Merriam-Webster’s Collegiate
Dictionary (11th ed) (defining “nightclub”). See Johnston v City of Livonia, 177 Mich App 200,
208; 441 NW2d 41 (1989) (noting that, in general, this Court is not bound by the labels that a
party assigns to his or her position because doing so would elevate form over substance).
8
Given the involvement of the Jackson Metropolitan Area Regional Planning Commission, it
was not unreasonable for the ZBA, in ascertaining the “common” and “standard” meaning of
“club” under the STZO, to consider ordinances enacted by other townships with the involvement
of that commission. See Summit Township Ordinances, § 150.006; Merriam-Webster’s
Collegiate Dictionary (11th ed). Nevertheless, even if consideration of the other ordinances was
improper, this error was harmless given the fact that the ZBA reached a proper conclusion
regardless of this evidence. Cf. MCR 2.613(A).
9
It is noteworthy that plaintiffs’ website specifically advertised the upcoming venue as a “New
York style dance club which features state of the art club sound and active lighting system [sic]
to tantalize the senses. Whether it’s a 70’s disco tune or the most current in club dance music[,]
our professional DJ’s are there to provide you with the motivation to get out there and leave it on
the dance floor. With high ceilings and a modern atmosphere it doesn’t matter what age you are,
this dance club will leave you breathless.” Additionally, the website stated that the “club” would
offer other social spaces, including a “sports bar” and seating areas for meeting and socializing
with other members.
Despite the establishment’s clear similarities to a “nightclub,” as that term is commonly
used, plaintiffs were not forthcoming with their proposed use, failing to check the “night club”
box under the list of nonresidential uses outlined on the application that they submitted for a
building permit. Instead, they checked “other” and vaguely described their proposed use as a
“private membership club.”
-12-
Additionally, although the ZBA repeatedly referred to plaintiffs’ proposed use as a
“swingers club” in its opinion, it is clear, as the circuit court recognized, that the ZBA’s decision
was not dependent on the fact that the prospective patrons of this establishment were “swingers,”
or that the anticipated members would patronize the club and participate in club activities in
order to meet other adherents of the “swinger’s lifestyle.”10 To the contrary, it is clear, simply
based on the anticipated spaces inside the building and the projected activities and amenities, that
plaintiffs’ proposed use did not constitute a “club” as the term is used under § 150.145 of the
STZO, regardless of the sexual preferences of the patrons.
Moreover, even if we assume, without deciding, that the ZBA erred when it considered
the prospective alcohol use at the establishment in determining whether plaintiffs’ proposed use
constituted a “club or lodge,” this consideration does not establish a basis for reversal because
the ZBA’s determination was proper for the reasons previously discussed. Cf. MCR 2.613(A)
(defining harmless error); Kopietz v Zoning Bd of Appeals for City of Village of Clarkston, 211
Mich App 666, 672-673; 535 NW2d 910 (1995) (considering a case in which the ZBA
considered factors irrelevant to the pertinent inquiry under the zoning ordinance at issue).
Plaintiffs have failed to establish that the ZBA and the circuit court erred in concluding
that the substance of plaintiffs’ proposed use, regardless of its label, was not a permitted use in
the C-2 zoning district.
B. CONSTITUTIONAL CLAIMS
Next, plaintiffs contend that the circuit court erred when it failed to find that the ZBA’s
decision violated their procedural and substantive due process rights and constituted a content-
based restriction on speech in violation of the First Amendment. We disagree.
1. STANDARD OF REVIEW
Again, “[t]his Court reviews de novo a [circuit] court’s decision in an appeal from a
city’s zoning board, while giving great deference to the [circuit] court and zoning board’s
findings.” Edw C Levy Co, 293 Mich App at 340 (quotation marks and citation omitted; second
and third alterations in original). “Generally, courts review a decision of a zoning board to
determine whether it complies with the constitution and the laws of the state, is based on proper
procedure, is supported by competent, material, and substantial evidence on the record, and
represents the reasonable exercise of the board’s discretion. MCL 125.3606.” Great Lakes Soc,
281 Mich App at 407-408. “We also review de novo constitutional issues and any other
questions of law that are raised on appeal.” Cummins v Robinson Twp, 283 Mich App 677, 690;
770 NW2d 421 (2009).
10
Plaintiffs state that they “dispute” the “swingers club” designation on appeal, but all of the
evidence below, including the emails proffered by plaintiffs at the ZBA hearing in support of the
club, demonstrate that the club was intended for members who categorized themselves as
“swingers” and intended to meet and socialize with other “swingers.”
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2. PROCEDURAL DUE PROCESS
The United States and Michigan Constitutions guarantee that a person may not be
deprived of life, liberty, or property without due process of law. In re Parole of Hill, 298 Mich
App 404, 412; 827 NW2d 407 (2012), citing US Const, Am XIV; Const 1963, art 1, § 17. Even
if we assume, solely for the purpose of considering this issue, that plaintiffs have a
constitutionally protected interest in the use and possession of the property at issue in this case,
see Bonner v City of Brighton, 495 Mich 209, 225-226; 848 NW2d 380 (2014); Mettler Walloon,
LLC v Melrose Twp, 281 Mich App 184, 209; 761 NW2d 293 (2008), the record includes no
basis for concluding that plaintiffs’ procedural due process rights were violated during the
proceedings before the ZBA. Cf. Hanlon v Civil Serv Comm’n, 253 Mich App 710, 722-723;
660 NW2d 74 (2002).
The essentials of procedural due process are adequate notice, an
opportunity to be heard, and a fair and impartial tribunal. Cummings v Wayne Co,
210 Mich App 249, 253; 533 NW2d 13 (1995); MCL 125.293a(1)(a) to (c).
“Administrative procedures must provide the affected party an opportunity to
explain its position and rebut adverse evidence.” Westland Convalescent Ctr v
Blue Cross & Blue Shield of Michigan, 414 Mich 247, 272; 324 NW2d 851
(1982) (opinion by FITZGERALD, J.). “The critical element provided by a judicial
trial or an administrative hearing is the opportunity for a party to present
arguments and evidence in support of its position before a decision is rendered,
the chance to respond before final action is taken.” Id. at 268. [Hughes, 284
Mich App at 69.]
See also English v Blue Cross Blue Shield of Michigan, 263 Mich App 449, 459-460; 688 NW2d
523 (2004) (explaining in further detail the elements of procedural due process).
Here, plaintiffs were provided “adequate notice, an opportunity to be heard, and a fair
and impartial tribunal.” Hughes, 284 Mich App at 69. Plaintiffs first contend that they were not
heard by an impartial tribunal.
[T]he right to a hearing before an unbiased and impartial decisionmaker is a basic
requirement of due process. Actual bias need not be shown [i]f the situation is
one in which experience teaches that the probability of actual bias on the part of a
decisionmaker is too high to be constitutionally tolerable. For example, the
following situations present that risk: (1) the decision maker has a pecuniary
interest in the outcome; (2) the decision maker has been the target of personal
abuse or criticism from the party before the decision maker; (3) the decision
maker is enmeshed in other matters involving the petitioner, and (4) the decision
maker might have prejudged the case because of prior participation as an accuser,
investigator, fact-finder, or initial decision maker. [Id. at 70 (quotation marks and
citations omitted; alteration in original).]
Plaintiffs do not identify any circumstances analogous to those risks. Rather, they contend that
the ZBA was biased because it reached a decision that was not consistent with the zoning
interpretation that they requested, the land use that they presented, and the notice of the hearing
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that was provided to plaintiffs and the public. Plaintiffs’ characterization of the record with
regard to this claim is misleading. Plaintiffs expressly sought an interpretation of “clubs and
lodges” in the context of contesting defendant’s previous interpretation of the ordinance and the
stop-work order issued by the Zoning Administrator. Consistent with the circuit court’s
conclusion, the record clearly shows that the parties, as well as the ZBA, were aware that
plaintiffs were requesting (1) an interpretation of the ordinance finding that their proposed use
was permitted in the C-2 district, and (2) a finding that the previous interpretation adopted by
defendant was incorrect. Plaintiffs did not request an exhaustive list of all uses that would
qualify under the “clubs and lodges” category. The evidence before the ZBA, most of which had
been presented to the circuit court in the previous case (LC No. 15-001519-CH), plainly
established a land use that could be described as a “swingers’ club,” and the emails proffered by
plaintiff to the ZBA at the hearing further supported this characterization. Therefore, because
there is no discrepancy between the interpretation and review requested by plaintiffs and the
ZBA’s decision, plaintiffs have failed to show that the ZBA was impartial or biased on that basis.
Next, plaintiffs contend that the ZBA was biased and made its decision before the hearing
based on (1) the fact that Nelson, one of the newest members, was appointed chairman of the
ZBA, (2) the ZBA’s receipt of documentation before the hearing, and (3) the fact that there was
little substantive discussion of the issues before Nelson, despite his recent appointment, produced
and read a proposed decision finding that plaintiffs’ proposed use did not fulfill the definition of
“clubs and lodges” under the ordinance, which the ZBA adopted by a 6-1 vote. As the circuit
court concluded, a reasonable review of the record does not support plaintiffs’ characterization of
the proceedings.
First, it is apparent that Nelson, a retired circuit court judge, was appointed to be the new
chairman due to the recent retirement of the prior chair. There is no indication that this
appointment at the beginning of the hearing, at a time when other administrative or
“housekeeping” matters were addressed, had anything to do with plaintiffs’ case.
Next, the zoning ordinance and the hearing notice acknowledged that the ZBA would
receive materials in advance of the meeting. See Summit Township Ordinances, §
150.369(A)(8). See also MCL 125.3604(2) (stating same); Michigan Zoning, Planning, and
Land Use, pp 257, 259. Consistent with these procedures, the record shows that John Worden,
the Zoning Administrator, gave the ZBA documentation associated with plaintiffs’ prior zoning
applications and the previous circuit court case, which was dismissed based on plaintiffs’ failure
to appeal the previous zoning decision to the ZBA. Likewise, as previously discussed, plaintiffs
proffered, before the hearing, a comprehensive explanation of their position that their proposed
use qualified under the “clubs and lodges” category permitted in C-2 zoning districts and that the
stop-work order was improper. See Summit Township Ordinances, § 150.369(A)(B) (stating
that, in appeals to the ZBA, “[t]he Appellant shall submit a clear description of the order,
requirement, decision, or determination from which the appeal is made and the grounds of the
appeal.”). Just as this Court reviews the lower court record and the parties’ briefs before
entertaining oral argument, it is clear that receiving and reviewing materials prior to a meeting
gives ZBA members an opportunity to review the relevant documentation and, naturally, to
begin developing their own opinions regarding the questions at issue. Likewise, given the
ZBA’s advance receipt of the comprehensive documentation regarding plaintiffs’ appeal and
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request for interpretation, it was reasonable for the ZBA members to review the material and
develop a preliminary opinion before the meeting began. Doing so does not demonstrate bias.
Furthermore, the record clearly shows that plaintiffs were notified at the beginning of the
hearing that specific types of evidence had been received. They could have addressed concerns
related to that evidence during their extensive opportunity for argument before the ZBA, but they
failed to do so. Instead, after the Chairman Nelson described the documentation that the ZBA
had received prior to the hearing, plaintiffs—without raising any objection—commenced their
arguments regarding the proper interpretation of the STZO and proffered a presentation by Philip
McKenna, a land use planner. Plaintiffs also responded to the arguments presented by defendant
during the ZBA hearing, refuting defendant’s claims regarding alcohol consumption on the
property and arguing that defendant had mischaracterized or concocted their proposed use.
Given the notice that plaintiffs received through the zoning ordinance, the hearing notice,
and Nelson’s statements at the beginning of the hearing, the record belies plaintiffs’ claim that
evidence was “secretly” submitted to the ZBA and that they were not provided an opportunity to
rebut or object to this evidence. See Hughes, 284 Mich App at 70 (reasoning that because the
plaintiffs were on notice that certain types of evidence were received by a township board and
ZBA, but they failed to raise any concerns regarding that evidence, their due process rights were
not violated even though they were not provided an opportunity to specifically rebut the
evidence). Likewise, given the procedural requirements of ZBA proceedings and the fact that
the hearing constituted, in effect, an appeal of defendant’s previous interpretation and
enforcement of the zoning ordinance, the ZBA’s receipt of documentation ahead of time was not
“akin to a judge in a criminal trial hearing testimony and receiving evidence before the trial and
then claiming that the defendant had a fair hearing when he failed to object at trial,” as plaintiffs
claim.
Therefore, there is no indication that plaintiffs were deprived of a meaningful
opportunity to be heard before an impartial decision-maker. See id. at 69-70. The “critical
element” was met here: plaintiffs were given an extensive “opportunity . . . to present arguments
and evidence in support of [their] position before a decision [was] rendered” and “the chance to
respond before final action [was] taken.” Id. at 69 (quotation marks and citation omitted).
3. SUBSTANTIVE DUE PROCESS
Even if we assume, once again, for the purpose of considering this issue that plaintiffs
have a constitutionally protected interest in the use and possession of the property in this case,
see Bonner, 495 Mich at 225-226; Mettler Walloon, 281 Mich App at 209; Hanlon, 253 Mich
App at 722-723, there is no basis in the record to conclude that the ZBA’s decision violated
plaintiffs’ substantive due process rights.
Regardless of whether substantive or procedural due process is implicated, the
overarching “touchstone of due process . . . is protection of the individual against arbitrary action
of government . . . .” Bonner, 495 Mich at 224 (quotation marks omitted), quoting Wolff v
McDonnell, 418 US 539, 558; 94 S Ct 2963; 41 L Ed 2d 935 (1974); see also Mettler Walloon,
281 Mich App at 198. However, the substantive component of due process “protects against the
arbitrary exercise of governmental power.” Bonner, 495 Mich at 224. Accordingly, “a
-16-
substantive due process violation occurs when arbitrary and capricious government action
deprives an individual of a constitutionally protected property interest.” Warren v City of
Athens, Ohio, 411 F3d 697, 707 (CA 6, 2005).
As the circuit court noted, it appears that plaintiffs have failed to identify the proper
standard in asserting their substantive due process claim against the ZBA. “While due process
protection in the substantive sense limits what the government may do in both its legislative and
its executive capacities, criteria to identify what is fatally arbitrary differ depending on whether it
is legislation or a specific act of a governmental officer that is at issue.” Mettler Walloon, 281
Mich App at 198 (quotation marks and internal citations omitted), quoting Co of Sacramento v
Lewis, 523 US 833, 846; 118 S Ct 1708, 1716; 140 L Ed 2d 1043 (1998). In this case, plaintiffs
did not contend below, and they do not maintain on appeal, that the ordinance itself, i.e., a
legislative act of the government, violated their substantive due process rights. Rather, they
contend that the ZBA’s interpretation of the zoning ordinance violated their substantive due
process rights. As such, they appear to be challenging, in effect, an action of a municipal officer
or authority in applying the ordinance. Thus, because this case involves a “dispute[] over
municipal actions,” it appears that the focus should be on whether there was egregious or
arbitrary governmental conduct.” Mettler Walloon, 281 Mich App at 197. “[W]hen evaluating
municipal conduct vis-à-vis a substantive due process claim, only the most egregious official
conduct can be said to be arbitrary in the constitutional sense,” meaning that “when executive
action is challenged in a substantive due process claim, the claimant must show that the action
was so arbitrary (in the constitutional sense) as to shock the conscience.” Id. at 197, 200. See
also Co of Sacramento, 523 US at 845-847 (explaining the standards in detail).
However, similar to the standards stated in Kyser v Twp, 486 Mich 514, 521-522; 786
NW2d 543 (2010), the case on which plaintiffs rely, opinions issued by this Court have applied
the following standards in reviewing a ZBA decision for a denial of substantive due process: To
prevail, the plaintiff must prove either “(1) that there is no reasonable governmental interest
being advanced by the present zoning classification or (2) that an ordinance is unreasonable
because of the purely arbitrary, capricious, and unfounded exclusion of other types of legitimate
land use from the area in question.” Frericks v Highland Twp, 228 Mich App 575, 594; 579
NW2d 441 (1998). Frericks also restated the following “basic rules of judicial review” with
regard to substantive due process claims:
(1) the ordinance is presumed valid; (2) the challenger has the burden of proving
that the ordinance is an arbitrary and unreasonable restriction upon the owner’s
use of the property; that the provision in question is an arbitrary fiat, a whimsical
ipse dixit; and that there is not room for a legitimate difference of opinion
concerning its reasonableness; and (3) the reviewing court gives considerable
weight to the findings of the trial judge. [Id. (quotation marks and citation
omitted).]
Regardless of the specific standard applicable here, plaintiffs’ substantive due process
claim fails. Plaintiffs’ arguments with regard to this issue are nearly identical to their previous
arguments challenging the ZBA’s construction of the ordinance. In contending that their right to
substantive due process was denied, they focus on the reasoning used by the ZBA and the circuit
court in interpreting the ordinance, which, according to plaintiffs, consisted of acknowledging
-17-
the dictionary definition of “club” and then proceeding to ignore it, instead developing an
arbitrary interpretation that was not consistent with the dictionary definition. For the reasons
previous discussed, the ZBA’s interpretation was not “an arbitrary fiat” or “a whimsical ipse
dixit,” see id., as it reasonably concluded that plaintiffs’ proposed land use was not consistent
with the plain, ordinary, common, and standard definition of “club,” when considered in the
context of the STZO. Further, and most importantly, plaintiffs again fail to recognize the
evidence in the record demonstrating the actual nature of their proposed use, which was not a
mere “private membership club.” The ZBA’s interpretation was reasonable, and the circuit court
did not err in affirming the ZBA’s determination.
Therefore, for the same reasons already discussed, the ZBA’s decision did not violate
plaintiffs’ right to substantive due process, and the circuit court did not err or otherwise violate
plaintiffs’ substantive due process rights in affirming the ZBA’s decision.
4. FIRST AMENDMENT
The United States Supreme Court recently explained the principles applicable to First
Amendment challenges to a law on the basis that it constitutes a contest-based restriction on
speech:
The First Amendment, applicable to the States through the Fourteenth
Amendment, prohibits the enactment of laws “abridging the freedom of speech.”
U.S. Const., Amdt. 1.[11] Under that Clause, a government, including a municipal
government vested with state authority, “has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.” Police Dept.
of Chicago v. Mosley, 408 U.S. 92, 95 (1972). Content-based laws—those that
target speech based on its communicative content—are presumptively
unconstitutional and may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests. R.A.V. v. St. Paul, 505 U. S.
377, 395 (1992); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims
Bd., 502 U.S. 105, 115, 118 (1991).
Government regulation of speech is content based if a law applies to
particular speech because of the topic discussed or the idea or message expressed.
E.g., Sorrell v. IMS Health, Inc., 564 U.S. ___, ___ – ___, 131 S.Ct. 2653, 2663–
2664, 180 L.Ed.2d 544 (2011); Carey v. Brown, 447 U.S. 455, 462 (1980);
Mosley, supra, at 95. This commonsense meaning of the phrase “content based”
11
Michigan’s Constitution includes an analogous provision. See Const 1963, art 1, § 5. “The
rights of free speech under the Michigan and federal constitutions are coterminous. Therefore,
federal authority construing the First Amendment may be considered in interpreting Michigan's
guarantee of free speech.” In re Contempt of Dudzinski, 257 Mich App 96, 100; 667 NW2d 68
(2003) (citations omitted).
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requires a court to consider whether a regulation of speech “on its face” draws
distinctions based on the message a speaker conveys. Sorrell, supra, at ___, 131
S.Ct. at 2664. Some facial distinctions based on a message are obvious, defining
regulated speech by particular subject matter, and others are more subtle, defining
regulated speech by its function or purpose. Both are distinctions drawn based on
the message a speaker conveys, and, therefore, are subject to strict scrutiny.
Our precedents have also recognized a separate and additional category of
laws that, though facially content neutral, will be considered content-based
regulations of speech: laws that cannot be “ ‘justified without reference to the
content of the regulated speech,’ ” or that were adopted by the government
“because of disagreement with the message [the speech] conveys,” Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989). Those laws, like those that are content
based on their face, must also satisfy strict scrutiny. [Reed v Town of Gilbert,
Ariz, ___ US ___; 135 S Ct 2218, 2226–27; 192 L Ed 2d 236 (2015).]
Thus, “[a]s a general principle, the First Amendment bars the government from dictating
what we see or read or speak or hear.” Ashcroft v Free Speech Coal, 535 US 234, 245; 122 S Ct
1389, 1399; 152 L Ed 2d 403 (2002). Notably, First Amendment protections only extend to
speech or “conduct that is inherently expressive.” Rumsfeld v Forum for Acad & Institutional
Rights, Inc, 547 US 47, 66; 126 S Ct 1297, 1310; 164 L Ed 2d 156 (2006). As the United States
Supreme Court explained in Texas v Johnson, 491 US 397, 404; 109 S Ct 2533, 2539; 105 L Ed
2d 342 (1989):
The First Amendment literally forbids the abridgment only of “speech,”
but we have long recognized that its protection does not end at the spoken or
written word. While we have rejected the view that an apparently limitless
variety of conduct can be labeled “speech” whenever the person engaging in the
conduct intends thereby to express an idea, we have acknowledged that conduct
may be sufficiently imbued with elements of communication to fall within the
scope of the First and Fourteenth Amendments.
In deciding whether particular conduct possesses sufficient
communicative elements to bring the First Amendment into play, we have asked
whether [a]n intent to convey a particularized message was present, and [whether]
the likelihood was great that the message would be understood by those who
viewed it. [Quotation marks and citations omitted; alteration in original.]
First, and most importantly, plaintiffs failed to explain in the circuit court, and they
similarly fail to explain on appeal, what exactly is the speech or expressive conduct that was
restricted by the STZO or the ZBA’s decision. See id. Plaintiffs have not identified any speech
or conduct that was intended to convey a particular message, and, contrary to plaintiffs’
conclusory claims on appeal, a review of the ZBA’s opinion shows that the ZBA’s decision was
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not based on, and did not implicate, any expressive speech or conduct.12 Although the ZBA’s
findings inferred from the information on plaintiffs’ website, including the link to “The Swing
Lifestyle” network, that the proposed land use would be for a “Swingers Club,” and thereafter
referred to plaintiffs’ proposed use as a “Swingers Club,” there is no indication that the STZO—
whether on its face or as applied—or the ZBA’s decision functioned as a restriction on
“expression because of its message, its ideas, its subject matter, or its content.” Reed, ___ US
___; 135 S Ct at 2226 (quotation marks and citation omitted).
Plaintiffs also claim that “it is clear [from the ZBA’s opinion] that the sole basis for the
ZBA’s decision is its opposition to the use of the building ascribed to [plaintiffs] by the
Township.” Plaintiffs again fail to recognize that the evidence in the record, including plaintiffs’
own website advertising the forthcoming “club” and the emails proffered by plaintiffs in support
of their land use, contradicted their circumscribed and vague description of their proposed land
use (i.e., a “private membership club”) and support the ZBA’s findings regarding plaintiffs’
proposed land use. The argument presented by defendant’s attorney during the ZBA hearing
may have included brief comments regarding his conceptualization of plaintiffs’ proposed use
that were speculative or exaggerated, but those statements on behalf of defendant do not
undermine the documentation before the ZBA and do not demonstrate that the ZBA’s findings
were inaccurate, especially given the fact that there is absolutely no indication that the ZBA’s
decision was based on the characterization presented by defendant’s attorney. See Edw C Levy
Co, 293 Mich App at 340.
Further, to the extent that plaintiffs base this claim on (1) the ZBA’s use of the term
“Swingers Club” to reference plaintiffs’ proposed use in its decision and (2) the ZBA’s
explanation that the name attributed to a given land use does not dictate or change the underlying
characteristics of the use, it is clear, in reading the entirety of the ZBA’s decision in context, that
the ZBA used the phrase “Swingers Club” as a term to reference plaintiffs’ proposed use as a
whole, and that the ZBA’s decision was not based on restricting expressive conduct typically
associated with adherents to a “swingers lifestyle.” Again, no such conduct was referenced in
the ZBA’s opinion. Furthermore, through its reasoning under the “A Name Does Not Make It
So” section of its decision, it is apparent that the point that the ZBA was trying to make was that
merely characterizing or referring to something as a “club” does not make it a “club” for
purposes of the “clubs and lodges” designation under § 150.145 of the STZO.
In sum, the ZBA did not determine that plaintiffs’ proposed use failed to qualify under
the “clubs and lodges” category based on speech or expressive conduct associated with plaintiffs
or with the anticipated patrons of plaintiffs’ proposed “club.” Neither the STZO nor the ZBA’s
12
Compare, e.g., Truckor v Erie Twp, 283 Mich App 154; 771 NW2d 1 (2009) (discussing First
Amendment protections afforded to adult entertainment businesses); Jott, Inc v Charter Twp of
Clinton, 224 Mich App 513; 569 NW2d 841 (1997) (recognizing that “[n]onobscene, erotic
entertainment, such as topless dancing, is a form of protected expression under the First
Amendment, but enjoys less protection than other forms of First Amendment expression . . . ,”
and discussing permissible zoning regulations with regard to adult entertainment businesses).
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decision was content-based in terms of “target[ing] speech based on its communicative content.”
Reed, ___ US ___; 135 S Ct at 2226.
IV. DOCKET NO. 329060
Plaintiffs argue that the trial court improperly granted defendant’s motion for summary
disposition because they were not required to pursue administrative remedies for a variety of
reasons, including, inter alia, that they had a “vested right” in their proposed land use. We
conclude that it is no longer necessary for us to consider whether the trial court properly
dismissed plaintiff’s complaint without prejudice in Docket No. 329060 (LC No. 15-001519-
CH).
As previously mentioned, the trial court dismissed plaintiffs’ complaint without prejudice
solely because plaintiffs filed a lawsuit instead of appealing the administrative zoning decision to
the ZBA. Plaintiffs then filed their claim of appeal in Docket No. 329060, ultimately arguing
that the trial court’s dismissal of the complaint was improper (1) because plaintiffs were not
required to exhaust their administrative remedies for several reasons (including that a dismissal
for failure to exhaust administrative remedies is improper when a party has a vested right in a
particular land use), and (2) because the principles in Paragon Properties Co v Novi, 452 Mich
568; 550 NW2d 772 (1996), were not otherwise applicable in this case. Accordingly, the
gravamen of plaintiffs’ appeal in Docket No. 329060 is that they should not be required to take
any action before the ZBA and, instead, this Court should reinstate the prior circuit court action
and enter a judgment in favor of plaintiffs. Nevertheless, shortly after filing the claim of appeal
contesting the trial court’s conclusion that they were required to exhaust their administrative
remedies, plaintiffs did, in fact, file an appeal with the ZBA, seeking interpretation of the STZO
based on their claim that defendant erroneously interpreted the STZO and, therefore, improperly
issued a stop-work order. Because all of plaintiffs’ claims in Docket No. 329060 specifically
contested the trial court’s ruling that dismissal was proper based on plaintiffs’ failure to appeal
defendant’s interpretation of the ordinance and related administrative action to the ZBA, the
appeal in Docket No. 329060 is moot. Alternatively, at the very least, it is no longer appropriate
for us to analyze plaintiffs’ claims in that matter given the factual and legal findings made by the
ZBA and the circuit court after plaintiffs filed their appeal.
In People v Richmond, 486 Mich 29, 34-35; 782 NW2d 187 (2010), reh granted in part
486 Mich 1041 (2010), amended by 784 NW2d 204 (2010), the Michigan Supreme Court
provided an overview of the mootness doctrine:13
It is well established that a court will not decide moot issues. This is
because it is the “principal duty of this Court . . . to decide actual cases and
controversies.” Federated Publications, Inc v City of Lansing, 467 Mich 98, 112;
649 NW2d 383 (2002), citing Anway v Grand Rapids R Co, 211 Mich 592, 610;
179 NW 350 (1920). That is, “ ‘[t]he judicial power . . . is the right to determine
13
Although Richmond is a criminal case, the Court’s reliance on civil caselaw for each
proposition demonstrates that this overview is equally applicable in civil cases.
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actual controversies arising between adverse litigants, duly instituted in courts of
proper jurisdiction.’ ” Anway, 211 Mich at 616 (citation omitted). As a result,
“this Court does not reach moot questions or declare principles or rules of law
that have no practical legal effect in the case before” it. Federated Publications,
467 Mich at 112. Although an issue is moot, however, it is nevertheless
justiciable if “the issue is one of public significance that is likely to recur, yet
evade judicial review.” Id. It is “ ‘universally understood . . . that a moot case is
one which seeks to get a judgment on a pretended controversy, when in reality
there is none, . . . or a judgment upon some matter which, when rendered, for any
reason, cannot have any practical legal effect upon a then existing controversy.’ ”
Anway, 211 Mich at 610, quoting Ex parte Steele, 162 F 694, 701 (ND Ala,
1908). Accordingly, a case is moot when it presents “nothing but abstract
questions of law which do not rest upon existing facts or rights.” Gildemeister v
Lindsay, 212 Mich 299, 302; 180 NW 633 (1920).
In general, because reviewing a moot question would be a “ ‘purposeless
proceeding,’ ” Stern v Stern, 327 Mich 531, 534; 42 NW2d 737 (1950) (citation
omitted), appellate courts will sua sponte refuse to hear cases that they do not
have the power to decide, including cases that are moot, In re MCI Telecom
Complaint, 460 Mich 396, 434 n 13; 596 NW2d 164 (1999), citing Ideal Furnace
Co v Int’l Molders Union of North America, 204 Mich 311; 169 NW 946 (1918).2
Whether a case is moot is a threshold issue that a court addresses before it
reaches the substantive issues of the case itself. In re MCI, 460 Mich at 435 n 13.
[Emphasis added.]
2
Indeed, because a court should, on its own motion, recognize and reject claims
that it does not have the power to decide, defendant’s failure to raise the mootness
argument at the Court of Appeals is irrelevant to this Court’s analysis. See In re
MCI, 460 Mich at 434-435 n 13.
See also AFT Michigan v State of Michigan, ___ Mich App ___, ___; ___ NW2d ___
(2016) (Docket Nos. 303702, 303704, 303706); slip op at __.
If we were to issue a decision determining whether the trial court erred in dismissing the
first circuit court case based on the fact that plaintiffs had failed to pursue their administrative
remedies with the ZBA at that time, that decision would constitute “a judgment upon some
matter which, when rendered, for any reason, cannot have any practical legal effect upon a then
existing controversy.” Richmond, 486 Mich at 34-35 (quotation marks and citation omitted).
Plaintiffs now have performed the task that served as the basis of the dismissal, and a separate
factual and procedural record has been developed.
Therefore, to the extent that plaintiffs maintain in Docket No. 329060 that their proposed
use is permitted under the ordinance and, in addition, raise a series of claims related to
defendant’s interpretation of the zoning ordinance and issuance of the stop-work order, the
proper place for those claims to be decided is in an appeal of the ZBA’s determination, which is
currently before us in Docket No. 334355 and which we have considered in detail. Likewise,
given the significant procedural history that developed after the appeal in Docket No. 329060
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was filed, and the findings made by the ZBA and circuit court during the proceedings giving rise
to the appeal in Docket No. 334355, it would be inappropriate for us to decide the myriad of
subclaims that plaintiff raises in Docket No. 329060 arising from the trial court’s dismissal of
their case based on their failure to exhaust their administrative remedies.
Further, these claims were not developed or decided in the circuit court given the limited
basis of the trial court’s dismissal, which would make it extremely difficult, if not impossible, for
us to review them on appeal, especially given the lack of clarity in the record regarding the
specific nature of the zoning-related filings and administrative decisions that were made before
defendant ultimately issued the stop-work order. See Gen Motors Corp v Dep't of Treasury, 290
Mich App 355, 387; 803 NW2d 698 (2010) (“Although this Court need not address an
unpreserved issue, it may overlook preservation requirements when the failure to consider an
issue would result in manifest injustice, if consideration is necessary for a proper determination
of the case, or if the issue involves a question of law and the facts necessary for its resolution
have been presented.”)
The circuit court case in Docket No. 329060 was dismissed without prejudice. Thus, to
the extent that plaintiffs continue to possess viable claims against defendant that were not raised
or resolved in the proceedings and appeal related to the ZBA’s decision in Docket No. 334355,
and could not have been resolved during these proceedings, the appropriate place for resolution
of those claims is in a separate case, not in this appeal of the trial court’s dismissal of plaintiffs’
complaint without prejudice. See Thomas v Michigan Employment Sec Comm’n, 154 Mich App
736, 742; 398 NW2d 514 (1986) (“The inclusion of the term ‘without prejudice’ in a judgment
of dismissal ordinarily indicates the absence of a decision on the merits, and leaves the parties
free to litigate the matter in a subsequent action, as though the dismissed action had not been
commenced.”) (quotation marks and citation omitted).
V. CONCLUSION
Plaintiffs have failed to establish that they are entitled to relief based on any of the claims
raised in Docket No. 329060 and Docket No. 334355.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Henry William Saad
/s/ Michael J. Riordan
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