Maages Auditorium et al v. Prince George's County, Maryland

Filing 72

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/3/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MAAGES AUDITORIUM, et al.
:
v.

:

Civil Action No. DKC 13-1722

:
PRINCE GEORGE’S COUNTY, MARYLAND
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case
raising a constitutional challenge to zoning ordinances is a
motion for summary judgment filed by Defendant Prince George’s
County, Maryland (the “County”).

(ECF No. 61).1

The issues have

been fully briefed, and the court now rules, no hearing being
deemed necessary.

Local Rule 105.6.

For the following reasons,

the County’s motion for summary judgment will be granted.
I.

Background
A

complete

recitation

of

the

factual

background

can

be

found in a prior memorandum opinion issued on March 5, 2014.
(ECF

No.

36,

at

presumed,

and

only

discussed here.

1

1-6).
facts

An

understanding

relevant

to

this

of

the

opinion

facts

is

will

be

At issue in this case are two County laws: CB-

Plaintiffs also filed an emergency motion to stay closure
of establishment.
(ECF No. 60).
As discussed during a
teleconference the undersigned held with the parties on June 5,
2015, this motion is unrelated to the current action. Moreover,
the entry of judgment for the County renders this motion moot.

46-2010 (“CB-46”) and CB-56-2011 (“CB-56”) (collectively, the
“zoning ordinances”), which were enacted on September 7, 2010
and November 15, 2011, respectively.
banned

adult

anywhere

in

entertainment
the

County

industrial zone.

In relevant part, CB-46

businesses

other

than

from

on

being

land

zoned

located
I-2,

an

In addition, adult entertainment businesses

must be located at least 1,000 feet from any school, residential
zone, or other adult entertainment business.

CB-46 required

that adult entertainment businesses conform to its requirements
by May 1, 2013.

CB-56 removed the May 1 deadline, instead

permitting adult entertainment businesses existing and operating
with a valid use and occupancy permit in certain commercial and
industrial

zones

to

continue

to

operate

provided they obtain a Special Exception.

as

nonconforming

Applications for a

Special Exception were due by June 1, 2012.
Plaintiffs
(collectively,

Maages
the

Auditorium,

CD15CL2001,

“Plaintiffs”),

Inc.,

operators

and

of

D2

adult

entertainment businesses in the County, filed a complaint on
June 14, 2013.
denied

(ECF No. 6).

Plaintiffs’

motion

Following a hearing, the court

for

a

preliminary

injunction

and

entered judgment for the County on six counts of the complaint,
leaving only the following two issues unresolved: whether the
zoning

ordinances

communication

to

leave
satisfy

open
the

adequate
First
2

alternative

Amendment

to

avenues
the

of

United

States Constitution; and whether the zoning ordinances satisfy
Maryland’s amortization doctrine.

(See ECF Nos. 36; 37).

On

June 11, 2015, the County filed the pending motion for summary
judgment.

(ECF No. 61).

Plaintiffs responded (ECF Nos. 67;

68), and the County replied (ECF No. 71).
II.

Standard of Review
Summary judgment is appropriate under Federal Rule of Civil

Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.

entitled

In

to

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court
of the United States explained that, in considering a motion for
summary judgment, the “judge’s function is not himself to weigh
the

evidence

determine

and

whether

determine

the

there

a

is

truth

genuine

of

the

issue

matter

for

but

trial.”

to
A

dispute about a material fact is genuine “if the evidence is
such

that

nonmoving

a

reasonable

party.”

jury

Id.

at

could

248.

return
Thus,

a

“the

verdict
judge

for

the

must

ask

himself not whether he thinks the evidence unmistakably favors
one

side

return

a

or

the

verdict

presented.”

other
for

but
the

whether
[nonmoving

a

fair-minded
party]

on

jury

the

could

evidence

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
3

favorable to the party opposing the motion.”

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

support

The mere existence of a “scintilla” of
of

the

nonmoving

party’s

case

is

not

sufficient to preclude an order granting summary judgment.

See

Liberty Lobby, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
III. Analysis
A.

Adequate Alternative Avenues of Communication

The prior memorandum opinion in this case summarized the
ultimate test for the existence of adequate alternative avenues
of communication as: “The number of sites available for adult
businesses under the new zoning regime must merely be greater
than or equal to the number of adult businesses in existence at
the time the new zoning regime takes effect.”
4

(ECF No. 36, at

22 (internal quotation marks omitted) (citing Bigg Wolf Discount
Video Movie Sales, Inc. v. Montgomery Cnty, Md., 256 F.Supp.2d
385, 398 (D.Md. 2003))).
most,

fourteen

within
enacted.

the

puts

adult

County

It is undisputed that there were, at

entertainment

at

the

time

businesses

the

zoning

in

ordinances

(See ECF Nos. 36, at 22-23; 61-1, at 4).

forth

an

affidavit

and

report

from

operation

an

were

The County

expert

witness

averring that there are approximately sixty-two sites in the
County that could accommodate adult entertainment businesses in
conformance with the zoning ordinances.

(ECF No. 61-3 ¶ 14).

Plaintiffs do not provide expert rebuttal to the County’s expert
calculations.

Plaintiffs

instead

argue

that

the

County’s

utilization of a “door-to-door” measurement to determine sites
in

compliance

with

the

zoning

restrictions is misplaced.

ordinances’

1,000

foot

(See ECF No. 68, at 2-7).

Plaintiffs’ argument is fatally flawed for several reasons.
First,

Plaintiffs

have

already

raised

this

argument

unsuccessfully. The court thoroughly analyzed the County’s doorto-door interpretation, and nothing warrants a departure from
the

previous

undersigned

analysis.
explained,

(ECF

No.

“Plaintiffs

36,
have

at

18-36).

failed

to

As

the

make

any

allegation that such an interpretation harms them in any way.”
(Id. at 26).
County’s

Instead, Plaintiffs continue to argue that the

interpretation

is

prone
5

to

abuse

and

impermissible

“reinterpretations.”

Plaintiffs argue that such a change in

interpretation

theoretically

could

harm

them

arbitrarily what qualifies as a permissible site.

by

modifying

At this time,

however, Plaintiffs have not shown any inconsistency or abuse in
the County’s interpretation, an interpretation that indisputably
favors
“If

Plaintiffs

and

when

emerges,

a

that

by

providing

pattern

will

be

of

additional

abuse

the

time

or
to

permissible

inconsistent
deal

with

sites.

treatment
dishonest

applications of the regulations, not on a facial challenge.”
(Id. at 27 (citing Thomas v. Chicago Park Dist., 534 U.S. 316,
324-25 (2002))).
Plaintiffs’ contention that the County utilized vague and
indefinite

measurement

methods

is

also

unpersuasive,

particularly given the sheer number of conforming sites found
using the County’s calculations (62) compared with the number of
adult

entertainment

businesses

(14).

Much

of

Plaintiffs’

argument speculates how the County might change its methodology
in

the

future

and

ignores

the

County’s

fairly

detailed

explanation of its actual methodology and calculations.
No. 61-3, at 10-12).
in

its

calculations

(ECF

In addition, the County was conservative
whenever

possible.

For

example,

if

a

property did not currently have a structure, the County assumed
the door of a hypothetical structure would be as close to the

6

property line as possible, thereby reducing the area available
for permissible sites.
Moreover,

and

(Id. at 11).
perhaps

most

importantly,

Plaintiffs’

argument ignores their own expert’s calculations.

Plaintiffs’

expert, Mr. Mark Ferguson, calculated the number of conforming
sites using the straight-line measurement between property lines
that Plaintiffs have suggested is more appropriate.
No. 61-5, at 6).

(See ECF

Mr. Ferguson initially determined that there

are 12 possible sites that conformed to the zoning ordinances’
requirements.

(Id. at 8).

This calculation, however, did not

include possible sites subject to a restrictive covenant that
may prohibit adult entertainment businesses.

(See id. at 9).

Such an omission runs directly counter to this court’s prior
ruling, which stated, “Going forward, land otherwise available
but encumbered by a restrictive covenant between private parties
against

adult

‘available.’”

entertainment

businesses

(ECF No. 36, at 36).

will

be

considered

When all sites are properly

included, Mr. Ferguson’s calculations indicate that there are 15
possible sites.

(ECF No. 61-5, at 12).

Thus, even utilizing

Plaintiffs’ preferred methodology, the number of sites available
(15) exceeds the number of adult entertainment businesses within
the county at the time the zoning ordinances were enacted (14).2

2

In his deposition, Mr. Ferguson includes the caveat that
not all 15 sites may be physically suitable to accommodate an
7

Accordingly, any dispute as to the number of available sites is
immaterial, and the County is entitled to summary judgment on
this claim.
B.

See Bigg Wolf, 256 F.Supp. at 398.

Amortization

In its prior memorandum opinion, the court summarized the
Maryland amortization doctrine as follows:
The law in Maryland is clear that if
there is a valid use of property, and a
subsequent change in zoning would render the
use invalid, that new regime does not apply
to the “nonconforming use.”
See, e.g.,
Amereihn v. Kotras, 194 Md. 591, 601 (1950).
A “nonconforming use is a vested right and
entitled to constitutional protection.” Id.
“A nonconforming use may be reduced to
conformance or eliminated in two ways: by
‘amortization,’
that
is,
requiring
its
termination over a reasonable period of
time, and by ‘abandonment,’ i.e. non-use for
a specific [] time.”
Trip Assocs., Inc. v.
Mayor and City Council of Balt., 392 Md.
563,
575
(2006).
“True
amortization
provisions almost if not universally call
for a termination of non-conforming uses
after the lapse of a reasonable, specified
period in order that the owner may amortize
his investment (the reasonableness of the
period depends upon the nature of the nonconforming use, the structures thereon, and
the investment therein).”
Mayor & City
Council of Balt. v. Dembo, Inc., 123 Md.App.
adult entertainment business in their existing state due to
parking, size of the existing building, and similar limitations.
(ECF No. 61-5, at 12-14).
Such a caveat is irrelevant because
economic feasibility and other issues relating to the physical
status of available sites are irrelevant to the constitutional
question.
See Bigg Wolf, 256 F.Supp.2d at 397 (“Plaintiff’s
claims
regarding
insufficient
parking
spaces
and
other
structural deficiencies at some of the proposed sites are also
clearly irrelevant.”).
8

527, 538-39 (1998) (quoting Stevens v. City
of Salisbury, 240 Md. 556, 570-71 (1965)
(internal quotation marks omitted)).
“So
long as it provides for a reasonable
relationship between the amortization and
the nature of the nonconforming use, an
ordinance prescribing such amortization is
not unconstitutional.”
Trip Assocs., 392
Md. At 575 (citing Gough v. Bd. of Zoning
Appeals for Calvert Cnty., 21 Md.App. 697,
704-05 (1974)).
(ECF No. 36, at 50-51).
The County argues that the zoning ordinances provided a
reasonable amortization period under Maryland law.

Plaintiffs

generally counter that any amortization period provided was not
reasonable.

Plaintiffs

appear

argument,

alleging

the

Exception

process

period.”

to

County

(ECF No. 68, at 12).

“remov[es]

misunderstand

believes

the

need

that

for

any

the

County’s

the

Special

amortization

In reality, the County argues

that the six months “from the time CB-56 was passed on November
15, 2011, until the June 1, 2012 deadline for filing the Special
Exception constitutes an amortization period, the combination of
which with the Special Exception option and the sheer number of
available

alternative

sites

is

sufficient

constitutional concerns over vested rights.”
7

(emphasis

added)).

Moreover,

CB-46,

to

satisfy

any

(ECF No. 61-1, at
the

ordinance

that

initially restricted adult entertainment businesses, was enacted
in

September

2010,

meaning

that

nonconforming

adult

entertainment businesses such as Plaintiffs’ had approximately
9

21

months

before

they

were

required

to

apply

for

a

Special

Exception or be in violation of the zoning ordinances.3

In

addition, the Court of Appeals of Maryland has considered the
time spent litigating a matter as relevant to the reasonableness
of

an

amortization

period.

Eutaw

Enters.,

Inc.

v.

City

of

Balt., 241 Md. 686, 697-98 (1966) (“In the present case the
reasonableness of the eighteen months’ period of grace need not
be passed on a basis of decision.
the

litigation

has

dragged

on,

Because the length of time

during

which

[the

plaintiffs

remained in business, the plaintiffs] have had some five and a
half years . . . to enjoy and profit from [the nonconforming
use].”).
“An ordinance is not arbitrary and unconstitutional on its
face

if

it

reveals

a

reasonable

relationship

between

the

amortization period and the nature of the nonconforming use.”
Dembo, 123 Md.App. at 539.

Here, nonconforming businesses had

nearly two years from the passage of CB-46 to amortize, a length
of time which courts have held as reasonable.

Eutaw, 241 Md. at

697 (noting that an amortization period “of eighteen months for
the elimination of [the plaintiff’s] business is as long as many
which have been judicially approved as reasonable”); see also

3

CB-46 initially provided an express amortization period
until May 1, 2013.
CB-56 removed this deadline, instead
mandating that nonconforming adult entertainment businesses
apply for a Special Exception by June 1, 2012.
10

Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821 (4th Cir. 1979)
(holding a six month period reasonable for an ordinance that
required adult entertainment establishments to reduce in size);
Northend Cinema, Inc. v. City of Seattle, 90 Wash.2d 709 (1978)
(sustaining three-month amortization period for adult theater
that permitted non-adult theater use thereafter).

CB-56 then

gave nonconforming businesses another option — to apply for a
Special Exception within six months.

In all, more than five

years have passed since the passage of CB-46 and more than four
years have passed since the enactment of CB-56, during which
time

Plaintiffs

Such

a

amount

time
of

have

period

been
is

investment

operating

reasonable

Plaintiffs

in

have

in

nonconforming

relation
made

to

to
the

the

status.
modest

premises,

particularly because the zoning ordinances prohibit only adult
entertainment.

(See ECF No. 61-1, at 11-14 (citing deposition

transcripts)).

Furthermore,

Plaintiffs’

corporate

representatives testified that they would be able to remove most
of the investment that Plaintiffs have made, such as technology
and furniture.

(Id.).

Accordingly, the zoning ordinances do

not violate Maryland’s amortization doctrine.4

4

Because the amortization period was reasonable, it is not
necessary to analyze the County’s argument that Plaintiffs’ were
not lawfully using the property at the time the zoning
ordinances were passed.
11

Plaintiffs

make

two

additional

arguments

discussion, but ultimately are unpersuasive.
scrutinize
Special

the

County’s

Exception.

process

Maryland

and

warrant

First, Plaintiffs

criteria

courts

that

have

for

granting

recognized

a

that

a

locality’s zoning and licensing powers are distinct and should
be

analyzed

Thus,

the

separately.

Special

See

Exception

Dembo,
process

123
is

Md.App.
not

at

534-37.

relevant

to

the

amortization period of the zoning ordinances, or to the County’s
argument that such a period was reasonable.

Second, Plaintiffs

contend that Md. Code, Land Use § 22-113 prohibits the County’s
actions in this case.

Section 22-113 states: “A person may

continue, and appropriate licenses may be issued to the person
for, a lawful nonconforming use existing on the effective date
of the respective zoning laws in the metropolitan district.”

As

the County notes, the use of the word “may” is permissive, and
the

statute

nonconforming

plainly

does

use.

See

not

mandate

that

Maryland-National

the

County

Capital

allow

Park

and

Planning Comm’n v. Silkor Dev. Corp., 246 Md. 516, 522 (1967)
(holding that the word “may” as used in a statute was “to be
construed in the permissive sense”).
the

legislature

intended

§

22-113

Plaintiffs’ arguments that
to

alter

substantially

Maryland’s long-standing amortization doctrine are unpersuasive.

12

IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Defendant Prince George’s County will be granted.
motion

for

Plaintiffs

a

stay

will

be

of

closure

denied

as

of

an

moot.

establishment
A

separate

filed

order

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

13

The
by

will