Planet Aid v. Ypsilanti, Township of

Filing 18

ORDER DENYING PLAINTIFF'S 4 MOTION FOR PRELIMINARY INJUNCTION. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PLANET AID,
a Massachusetts nonprofit corporation,
Plaintiff,
V.

Case No. 14-CV-11472
Honorable Denise Page Hood

YPSILANTI TOWNSHIP,
a Michigan municipal corporation,
Defendant.
/

ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION [#4]
This matter is before the Court on Plaintiff Planet Aid’s motion for a preliminary
injunction. This case concerns Plaintiff’s allegation that the Defendant’s zoning
ordinance interferes with the Plaintiff’s use of donation bins to collect items for its
business. Now before the Court is the Plaintiff’s Motion for a Preliminary Injunction
[Docket No. 4, Filed April 14, 2014] in which Plaintiff moves the Court to prevent
the Defendant from forcing the removal of the Plaintiff’s donation bins from the
Township.
On April 16, 2014, the Court entered an Order Granting Plaintiff’s Motion for a
Temporary Restraining Order. The Court held a hearing on the instant Motion on

May 23, 2014. Prior to the hearing, Defendant filed a Response to this Motion
[Docket No. 11, filed May 9, 2014] and Plaintiff filed a Reply. [Docket No. 12, filed
May 16, 2014] Plaintiff also filed Supplemental Authority on May 20, 2014. [Docket
No. 13] Following the hearing, Defendant filed two additional affidavits. [Docket
Nos. 15, 16] For the reasons discussed below, Plaintiff’s Motion for Preliminary
Injunction is DENIED as the Court determines that Plaintiff has failed to show a
likelihood of success on the merits of its claim that the Defendant’s zoning ordinance
violates the Plaintiff’s constitutional rights.
I. BACKGROUND
Planet Aid is a nonprofit corporation that operates and maintains donation
collection bins at which individuals can donate their clothing, shoes and textiles.
[Docket No. 4, p. 3] Planet Aid distributes the items collected in its bins to
organizations in other countries. [Id.] Planet Aid began placing donation bins
throughout the Township in 2008. [Docket No. 11, p. 1] Planet Aid’s donation bins
are placed on private business properties after obtaining permission from a property
owner or business partner. [Docket No. 4, p. 3-4]1 Since 2008, the Plaintiff has
In contention with this assertion by Plaintiff, Defendant filed an affidavit
from Seung Kang who is “the owner of Chick Inn Drive In restaurant located at
501 Holmes Rd, in the Charter Township of Ypsilanti.” [Docket No. 15, p. 1]
Kang stated that she “had not given Planet Aid permission to place the donation
1

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placed sixteen donation bins on eleven properties in the Township. [Docket No. 4,
p. 5] The Plaintiff has rental contracts with two property owners, Grenadier
Properties Paint Creek North LLC and Hutton Management Services LLC, to place
seven of the sixteen donation bins on these properties. [Id.]
The Township enacted a zoning ordinance prior to Planet Aid’s presence in the
Township. The Township Zoning Ordinance, Section 2101.Scope provides:
No building or structure, or part thereof, shall hereafter be
erected, constructed or altered and maintained, and no new use or
change shall be made or maintained of any building, structure or
land, or part thereof, except in conformity with the provisions of
this ordinance.
The Ordinance institutes site plan review procedures which state:
provide a consistent and uniform method for review of proposed
development plans, to ensure full compliance with the standards
contained in this section, other applicable local ordinances,
standard engineering practices, and county, state, and federal
rules, and laws. The procedures set forth herein are further
intended to:
(a) Achieve efficient use of the land;
(b) Protect natural resources;
(c) Minimize adverse impacts on adjoining or nearby
properties;
(d) Provide a mechanism for review of new
development and redevelopment or reuse of existing

box in the parking lot of [her] business.” [Id.]
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sites to ensure compliance with current standards;
and,
(e) Encourage cooperation and consultation between
the township and the applicant to facilitate
development in accordance with the township’s land
use objectives.
[Docket No. 11, Ex. I, Zoning Ordinance Section 2115(1)]
The Ordinance further states that unless a project is exempt from site plan
review, “a building permit shall not be issued until a site plan or sketch plan [has
been] approved in accordance with” the zoning ordinance. [Docket No. 11, Ex. I,
Zoning Ordinance Section 2115(2)] The Ordinance expounds that it is the
“responsibility of the owner of a property for which site plan approval has been
granted to maintain the property in accordance with the approved site design on a
continuing basis until the property is razed, or until new regulations supersede the
regulations upon which site approval was based, or until a new site design approval
is sought.” [Docket No. 11, Ex. I, Zoning Ordinance Section 2115(3)(k)(3)] The
Ordinance notes that “[s]uch maintenance shall include all building and site elements
depicted on the site plan including parking configuration [and that] [a]ny owner who
fails to maintain a site as approved shall be deemed in violation of the applicable use
provisions of this section and shall be subject to penalties.” [Id.]

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The ordinance allows for appeal of a site plan denial. “Either the township
community and economic development department or the applicant shall have the
option to request sketch plan review by the planning commission.” [Docket No. 11,
Ex. I, Zoning Ordinance Section 2115(4)] “Appeals may be taken by the person,
firm or corporation aggrieved” and “a variance in the zoning ordinance may be
applied for and granted under section 4 of the Uniform Condemnation Procedures
Act.” [Docket No. 11, Ex. I, Zoning Ordinance Section 2402]
The Zoning Ordinance requires all accessory structures installed by property
owners to comply with the ordinance. [Docket No. 11, p. 1] Under the Township’s
existing zoning regulations, donation bins require site plan approval. [Docket No.
11, p. 2] As noted above, in order to obtain site plan approval, a property owner with
a donation bin on its property can either request a variance from his or her site plan
or challenge the enforcement of the planning commission’s decision to remove the
bins. [Docket No. 11, p. 5]
On April 8, 2014, the Defendant’s Community Ordinance Officer, Mark
Heppner, contacted the Operations Manager for Planet Aid in Michigan, Brian
Hinterleiter, to inform him that the Township investigated several donation bins in
the Township and found that none of the property owners sought site plan approval

5

for the donation bins. [Docket No. 11, p. 3-4] Following Hinterleiter’s discussion
with Heppner, Hinterleiter contacted the Township Supervisor, Brenda Stumbo, and
the Township Attorney, Angela King, to set up meetings to discuss the Township’s
enforcement of the zoning ordinance. [Docket No. 4, p. 7-8] There is a dispute as
to whether the Township’s representatives told Hinterleiter that the zoning
ordinance’s enforcement was intended to ban all donation bins because there were too
many in the area. [Docket No. 4, p. 6]
Plaintiff claims that it made several attempts to set up a meeting between the
two parties. Following these attempts, Plaintiff filed a complaint on April 11, 2014,
alleging that the Defendant-Township’s ban on donation bins constitutes several
violations of the Plaintiff’s constitutional rights. [Docket No. 1] Following the filing
of Plaintiff’s Complaint, Plaintiff filed a Motion for Temporary Restraining Order on
April 14, 2014. [Docket No. 4] The Court granted this motion on April 16, 2014.
[Docket No. 6]

Now before the Court is Plaintiff’s Motion for Preliminary

Injunction.
II.

ANALYSIS
A. Standard of Review

Federal Rule of Civil Procedure 65(a) reads, in relevant part, as follows:

6

(a)

Preliminary Injunction
(1) Notice. The Court may issue a preliminary injunction
only on notice to the adverse party.
(2) Consolidating the Hearing with the Trial on the
Merits. Before or after beginning the hearing on a motion
for preliminary injunction, the Court may advance the trial
on the merits and consolidate it with the hearing. Even
when consolidation is not ordered, evidence that is
received on the motion and that would be admissible at
trial becomes part of the trial record and need not be
repeated at trial. But the Court must preserve any party’s
right to a jury trial.

When determining whether to issue a preliminary injunction, the Court considers four
factors: (1) whether the movant has a ‘strong’ likelihood of success on the merits; (2)
whether the movant would otherwise suffer irreparable injury; (3) whether issuance
of a temporary restraining order or preliminary injunction would cause substantial
harm to others; and (4) whether the public interest would be served by issuance of the
temporary restraining order or preliminary injunction. Suster v. Marshall, 149 F.3d
523, 528 (6th Cir. 1998); In re Eagle-Pitcher Industries, Inc., 963 F.2d 855, 858 (6th
Cir. 1992). These factors are not prerequisites, but must be balanced in determining
whether to deny or grant injunctive relief. Leary v. Daeschner, 228 F.3d 729, 736 (6th
Cir. 2000). The first factor is the most critical inquiry of the four criteria. Mason
County Med. Ass’n v. Knebel, 563 F.22d 256, 261 (6th Cir. 1977).
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B. Discussion
i.

Likelihood of Success on the Merits

First, the Court must consider whether the Plaintiff has a strong likelihood of
success on the merits of its claims. After review of the documents provided to the
Court, the Court concludes that the Plaintiff has not shown a strong likelihood of
success on its Free Speech claim, its Dormant Commerce Clause claim, its
Impairment of Contracts claim, or its claim under 42 U.S.C. §1983.
a. Free Speech
Plaintiff alleges that the Defendant’s zoning ordinance violates its right to free
speech under the First Amendment of the U.S. Constitution. U.S. Const. amend. I.
The Court finds that the Plaintiff has not shown that it is likely to prevail on this
claim because the language of the zoning ordinance does not create a complete ban
on donation bins within the Township.
The Plaintiff argues that the Defendant’s zoning ordinance violates its First
Amendment right to solicit charitable donations thereby violating Plaintiff’s rights
to free speech. [Docket No. 4, p. 12] It is well established that charitable donations
qualify as a form of constitutionally protected speech, and that a governmental entity
may restrict this right only with narrowly drawn regulations. Schaumburg v. Citizens
for a Better Environment, 444 U.S. 620 (1980). Neither party disputes that the
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Plaintiff’s solicitation of charitable donations is protected free speech or that the
Defendant-Township has some authority to regulate this type of activity. [Docket
No. 4, p. 13; Docket No. 11, p. 11, 13] The Plaintiff argues that the Court should
subject the Defendant’s zoning ordinance to strict scrutiny because the regulation
restricts constitutionally protected free speech. [Docket No. 4, p. 12] Under the
strict scrutiny standard, an ordinance that restricts free speech must be narrowly
tailored to achieve an important government interest without unnecessarily infringing
on First Amendment freedoms. [Docket No. 4, p. 13] The Plaintiff argues that the
Defendant’s zoning ordinance is not narrowly tailored because it bans all donation
bins, and the ordinance is not the least restrictive means of achieving the Defendant’s
goals. [Docket No. 4, p. 15-16]
In response, the Defendant argues that the language of the zoning ordinance
does not ban all donation bins within the Township. [Docket No. 11, p. 8] The
Defendant argues that the donation bins constitute accessory structures which are
permissibly regulated by the Defendant’s zoning ordinance. [Docket No. 11, p. 3]
The Defendant denies that the enforcement of the zoning ordinance bans all donation
bins. [Docket No. 11, p. 8] The Defendant argues that the Plaintiff’s facial challenge
to the zoning ordinance is invalid because the Plaintiff cannot establish that the

9

Defendant’s zoning ordinance itself is unconstitutionally invalid. [Docket No. 11,
p. 13] The Defendant urges the Court to rely on Jobe v. City of Catlettsburg in
deciding if the Defendant’s zoning ordinance can survive a First Amendment
challenge. Defendant contends that the Ordinance is constitutional and should
survive Plaintiff’s First Amendment challenge because it is: (1) content neutral; (2)
serves a significant government interest; (3) is narrowly tailored to serve that
governmental interest; and (4) leaves open ample alternative channels of
communication. Jobe v. City of Catlettsburg, 490 F.3d 261, 267 (6th Cir. 2005).
The Court determines that Plaintiff has not shown it will prevail on this claim.
The zoning ordinance does not place an outright ban on all donation bins in the
Township. The Court is unpersuaded that the strict scrutiny standard should be
applied to determine the constitutionality of the Defendant’s zoning ordinance
because the Plaintiff has not cited any language in the Defendant’s zoning ordinance
that places a total ban on all donation bins. [Docket No. 11, p. 11] It is well
established that municipalities are allowed to place direct and substantial limitations
on protected free speech activity. Schaumburg, 444 U.S. 620. The Court is satisfied
that a complete ban on the placement of donation bins within the Township would
likely require a strict scrutiny analysis as Plaintiff’s fundamental first amendment
right to free speech would be challenged. However, here, the Ordinance limiting the
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placement of donations bins within the Township does not constitute a complete ban
and does not restrict Plaintiff’s fundamental right to free speech in a manner not
allowed by the law.
Finding that strict scrutiny is not applicable because the Defendant has not
placed a complete ban on the placement of donation bins,2 the Court will rely on Jobe

The Court notes that even assuming, arguendo, strict scrutiny applies in
this situation, it is still unpersuaded that Plaintiff has a likelihood of success on the
merits of its claims on the information currently before the Court. Based on what
has been provided to the Court, Plaintiff has failed to show how the Zoning
Ordinance is not justified by a compelling state interest and narrowly tailored to
achieve that goal. Further, Plaintiff has not shown that Defendant fails to provide
alternate means for Plaintiff to place its donation bins within the Township.
Plaintiff has not argued that it applied to place bins within the township (or that a
property owner asked on its behalf) and was denied access. Additionally, Plaintiff
does not contend that following denial, it appealed and was again denied. Plaintiff
has not availed itself of the alternate means available to place donation bins within
the Township and because Defendant’s Ordinance appears on its face to be a
content neutral, time, place, and manner regulation on placement of bins within
the Township, on the information now before the Court, Plaintiff has not shown
that the Ordinance cannot survive strict scrutiny analysis.
2

The Court also notes that the instant case is distinguishable from the case
that Plaintiff provided to the Court, Planet Aid v. City of St. Johns, No. 1:14-CV149 (W.D. Mich. 2014). In St. Johns, the City of St. Johns notified Planet Aid that
its donation boxes must be removed because they were “both a public nuisance
and a violation of [the] zoning ordinance re accessory uses.” At that time, the city
did not have any ordinances in place that supported their contention that the bins
required permission to be placed or that they were deemed to be a nuisance in all
instances. During a meeting on December 9, 2013, the St. Johns City Commission
recommended “a total prohibition” on donation bins within the city which the
Commission voted unanimously to introduce at its next meeting. On January 27,
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v. City of Cattlesburg to determine whether the Defendant’s zoning ordinance is a
reasonable regulation of speech that survives the Plaintiff’s constitutional challenge.

2014, the City Commission voted unanimously to adopt an ordinance regarding
the placement of donation bins within the city. The Ordinance stated in relevant
part that “[n]o person, business or other entity shall place, use or allow the
installation of a donation box within the City of St. Johns.” Title VX, Chapter 155
of the St. John’s Zoning Ordinance.
In her Opinion and Order Granting Plaintiff Planet Aid’s Motion for
Preliminary Injunction, the Honorable Janet T. Neff noted that “[c]haritable
appeals for funds, on the street or door to door, involve a variety of speech
interests—communication of information, the dissemination and propagation of
views and ideas, and the advocacy of causes—that are within the protection of the
First Amendment.” Schaumburg, 444 U.S. at 633. The court further asserted that
“public receptacles are not mere collection points for unwanted items, but are
rather silent solicitors and advocates for particular charitable causes.” Nat’l Fed’n
of the Blind of Texas, Inc. v. Abbott, 647 F.3d 202, 213 (5th Cir. 2011). The court
determined that the “balance of factors weigh[ed] in favor of preliminary enjoining
the City from enforcing [the] Ordinance . . . against Planet Aid” because Plaintiff
met its “burden of proving a substantial likelihood of succeeding on the merits of
its free speech claim.” City of St. Johns, Case No. 14-CV-149, *9, 10.
This case is also distinguishable from this Court’s previous case, Society of
St. Vincent v. Amer. Textile, Case No. 13-CV-14004 (E.D. Mich. 2013). There,
the Court granted Plaintiff’s Motion for Preliminary Injunction preventing the
Defendant from removing donation bins that Plaintiff placed throughout the
Eastern District of Michigan. In Society of St. Vincent, Plaintiff made various
claims that included RICO violations, trespass to chattels, conversion, and tortious
interference with business relationships. There, however, neither party claimed
that there was an ordinance in place that purported to limit the placement of the
bins. Additionally, regulation or removal of donations bins was not alleged to
have been done by a municipality but by what Plaintiff claimed to be a competing
organization.

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Jobe, 490 F.3d at 267. First, the Defendant’s zoning ordinance is content neutral,
requiring all accessory structures to abide by the ordinance. Under the Defendant’s
Zoning Ordinance, all structures, with minor exceptions, require cite plan approval.
[Docket No. 11, p. 14] Second, the Ordinance allows the Township to regulate
communicative structures within its borders, which is a recognized legitimate
purpose. See City of Ladue v. Gilleo, 512 U.S. 43, 48 (1994); Prime Media, Inc. v.
City of Brentwood, Tenn, 398 F. 3d 814, 819 (6th Cir. 2005) (holding that a city was
allowed to regulate the dimensions and placements of billboards to further the
municipal interests of aesthetics and traffic safety). Third, the Ordinance is narrowly
tailored because it furthers the governmental interest of making sure that accessory
structures comply with existing health, safety, and welfare regulations, see Ward v.
Rock Against Racism, 491 U.S. 781, 798 (1989), and provides Plaintiff with
alternative routes to make sure that its donation bins comply with the zoning
ordinance, none of which were utilized before filing this action. [Docket No. 11, p.
16] Plaintiff has not shown a likelihood of success on the merits of its claim that the
Township’s Ordinance violates its First Amendment right to solicit charitable
contributions because in this case, Plaintiff’s claim that the Ordinance bans all
donation bins is unsupported. Enforcement of the Defendant’s preexisting Ordinance
may be shown to further a legitimate government interest, and the Ordinance appears
13

to include alternative means to secure the placement of contribution bins within the
Township.
b. Dormant Commerce Clause
Plaintiff alleges that the Defendant’s zoning ordinance violates the Commerce
Clause of the U.S. Constitution which gives Congress the power to regulate
commerce among the several states. U.S. CONST. art. I, §8, cl. 3. The Dormant
Commerce Clause allows states to regulate local issues as long as those regulations
do not interfere with interstate commerce. S. Pac. Co. v. State of Ariz. Ex rel.
Sullivan, 325 U.S. 761, 770 (1945). Plaintiff is unlikely to succeed on the merits of
this claim because the Defendant’s zoning ordinance does not place a complete ban
on the donation bins used to solicit the Plaintiff’s donations and, therefore, does not
inhibit interstate commerce.
Plaintiff argues that the Defendant’s zoning ordinance violates the Dormant
Commerce Clause because it burdens interstate commerce, and this burden makes the
zoning ordinance unconstitutional. [Docket No. 4, p. 16-17] The Plaintiff contends
that the Zoning Ordinance burdens interstate commerce because the donated items are
distributed and resold to other states and countries. [Docket No. 4, p. 17-18] The
Plaintiff urges the Court to focus on whether the burden imposed by the zoning
ordinance is excessive in light of the benefits it produces and whether the same
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government interest can be promoted with a lesser impact on interstate activities.
Mason & Dixon Lines, Inc. v. Steudle, 761 F. Supp. 2d 611, 626-27 (E.D. Mich,
2011); Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). The Plaintiff asserts the
Defendant’s restriction on donation bins “materially restricts the flow of commerce
across state lines” by preventing the Plaintiff from soliciting charitable donations
through its donation bins. [Docket No. 4, p. 18] This, Plaintiff claims, creates an
undue burden that outweighs the benefits the Defendant receives from enforcing the
zoning ordinance. [Docket No. 4, p. 18-19] The Plaintiff also argues that the
ordinance favors in-state entities because permanent facilities that place donation bins
indoors are not burdened by the regulation. [Docket No. 4, p. 19]
The Defendant reiterates that the enforcement of its zoning ordinance does not
place an overarching ban on all outdoor donation bins. [Docket No. 11, p. 21] The
Township argues that the Court should decide if the regulation violates the Dormant
Commerce Clause by focusing on whether the regulation discriminates on its face
against out of state interests. [Docket No. 11, p. 20] Defendant claims that the zoning
requirements for accessory structures apply to all property owners within the
Township, regardless of in state or out of state interests and that because there is no
differential treatment, Plaintiff cannot succeed on this claim. [Docket No. 11, p. 21]

15

The Court determines that Plaintiff has not shown it is likely to succeed on the
merits of its Dormant Commerce Clause claim because the Township’s zoning
ordinance does not specifically burden interstate commerce. To determine whether
a law violates the Dormant Commerce Clause, the Court must look at whether the
regulation discriminates on its face against interstate commerce. United Haulers
Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgt. Auth., 550 U.S. 330, 338 (2007).
The Defendant-Township’s Zoning Ordinance appears to apply equally to all property
owners within its boundaries. [Docket No. 11, p. 21] Plaintiff has not shown that the
Ordinance is being enforced in a discriminatory fashion against out of state economic
interests or owners of charitable donation bins. Without this showing, Plaintiff is not
likely to succeed on the claim that the Defendant’s zoning ordinance violates the
Dormant Commerce Clause of the Constitution.
c. Impairment of Contracts
The Plaintiff claims that the Defendant’s zoning ordinance violates the
Contract Clause of the United States Constitution which provides that states should
not pass laws that impair the obligation of contracts. U.S. Const. art. I, §10, cl. 1.
The Plaintiff has not shown a strong likelihood of success on the merits of this claim
because its contracts did not comply with Township’s zoning laws at the time of their
creation.
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Plaintiff argues that the Ordinance interferes with contracts between the
Plaintiff and property owners who were paid to place the Plaintiff’s donation bins on
their property. [Docket No. 4, p. 11] The purpose of the constitutional prohibition
against the impairment of contracts is to prohibit states from impairing existing
contractual obligations. Home Bldg. & Loan Assoc. v. Blaisdell, 290 U.S. 398, 428
(1934). Plaintiff relies on Allied Structural Steel Co. v. Spannaus, 438 U.S. 234
(1978), and urges the Court to consider whether the Ordinance operates as a
substantial impairment of a contractual relationship and whether the Township’s
justification is a legitimate exercise of its police powers. Id. at 244. Plaintiff argues
that the Ordinance affects two preexisting contracts that it has with Grenadier
Properties Paint Creek and Hutton Management Services LLC, and that the
Ordinance serves no greater public purpose. [Docket No. 4, p. 12, Ex. 2]
In response, Defendant argues that the contracts made between the Plaintiff and
other property owners are invalid. [Docket No. 11, p. 17-18] The Defendant
contends that in order to establish a violation of the Contract Clause, the Plaintiff
must demonstrate that a change in state, and in this case Township law, has
substantially impaired a contractual relationship. [Docket No. 11, p. 17] The
Defendant relies on Mascio v. Pub. Employees Ret. Sys. Of Ohio, 160 F.3d 310, 313
(6th Cir. 1998), which prompts the Court to determine if the Contract Clause has been
17

violated by deciding whether: (1) a contract exists; (2) a change in the law impairs the
contract; and (3) the impairment is substantial. The Defendant argues that the Plaintiff
did not create legal contracts to place donation bins in the Township because the
placement of the donation bins did not receive site plan approval. [Docket No. 11, p.
18] Because the donation bins were negotiated and placed in a manner that may
violate the Defendant-Township’s zoning ordinance, the Defendant argues that the
Plaintiff’s contracts were illegal.
The Court determines that the Plaintiff is also unlikely to succeed on the merits
of this claim because Plaintiff’s entry into contractual agreements for placement of
donation bins may be in violation of the Township’s pre-existing Zoning Ordinance
for accessory structures. The Court appreciates that Defendant did not strictly enforce
the existing Ordinance, but Plaintiff has not argued that the Ordinance was not
already in place at the time that any of the claimed contracts were signed. Relying
on Mascio, the Court finds that Plaintiff has not shown that it is likely to succeed on
this claim because any contracts for placement of donation bins between the Plaintiff
and property owners may not have been in compliance with then-existing ordinances
within the Township. There was no change in the law that affected the Plaintiff’s
agreements with property owners. The ordinance existed prior to any of the
Plaintiff’s contractual agreements or placement of its donation bins. Additionally,
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there is no substantial impairment of the Plaintiff’s contractual interests. Plaintiff has
alternative means, as previously discussed, to secure the placement of its donation
bins. Plaintiff has not shown it is likely to prevail on the merits of this claim.
d.

42 U.S.C. § 1983

Lastly, Plaintiff claims that it has a cause of action against the Defendant
pursuant to 42 U.S.C. §1983 and §1988 because the Defendant infringed on its
constitutional rights. [Docket No. 4, p. 19-20] 42 U.S.C. §1983 allows citizens to
hold liable any party that infringes on their constitutionally guaranteed rights.
Plaintiff cites to Monell v. Department of Social Services, 436 U.S. 658 (1978) for its
position that municipalities can be sued directly for implementing ordinances that are
discriminatory. The Plaintiff asserts that the Zoning Ordinance bans all donation bins,
thereby violating its constitutional rights. [Docket No. 4, p. 20]
In opposition, Defendant argues that the Ordinance does not place a ban on
donation bins within the Township; therefore, there has been no violation of the
Plaintiff’s constitutional rights. [Docket No. 11, p. 22] Defendant contends that
Plaintiff has failed to produce any portion of the Zoning Ordinance that explicitly
bans donation bins. Defendant further argues that Plaintiff has not shown that it has
made any effort to seek site plan approval and that, if it sought site plan approval, it

19

would be outright denied.3 Defendant contends that Plaintiff cannot prevail on this
claim because the Ordinance does not deprive Plaintiff of any of its constitutional
rights.
The Court determines that Plaintiff has not shown it is likely to succeed on the
merits of this claim. Plaintiff has not shown, on the information presented to the
Court at this time, that the Zoning Ordinance bans all donation bins or that the
Ordinance is being enforced in a discriminatory fashion against donation bins. It is
within the Defendant-Township’s authority to produce zoning regulations for the
public welfare so long as the regulation does not violate constitutions rights. Plaintiff
has not shown that it is likely to succeed in the merits of these claims.
ii.

Irreparable Injury

In addition to the likelihood of success on the merits, the Court must consider
whether the Plaintiff will suffer irreparable injury if the preliminary injunction is

The Court notes that in its Motion, Plaintiff states that during a
conversation between Mr. Hinterleiter and Officer Heppner, Heppner told Plaintiff
that it “could apply [for site plan approval] but would most likely be denied by the
Planning Commission.” [Docket No. 4, p. 7] At the Court’s hearing on this
Motion, Defendant denied that this occurred and further stated that Officer
Heppner did not have the authority to make such a statement. Further, in its
Response to Plaintiff’s Motion, Defendant states that “[a]t no time did . . . any
representative of the Township advise Mr. Hinterleiter that the Township had
banned donation bins.” [Docket No. 11, p. 5]
3

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denied. The Court concludes that though Plaintiff has shown that it may suffer some
injury, it has not shown that it will suffer an irreparable injury.
Plaintiff claims that it has no adequate remedy at law and will suffer irreparable
harm if injunctive relief is not granted. [Docket No. 4, p. 21] The Plaintiff argues
that the Defendant’s infringement on its First Amendment right to free speech
constitutes an irreparable injury that the Plaintiff will suffer indefinitely if the
Defendant prevails in this case. Here, Plaintiff claims its injury is the prohibition of
its ability to solicit charitable donations through its donation bins. Plaintiff argues
that it does not have an adequate remedy at law because money damages will not
remedy its indefinite deprivation from exercising its right to free speech by collecting
charitable donations within the Township.
Defendant responds that Plaintiff does have an adequate remedy at law, which
would require the Plaintiff to follow the procedures set forth in the DefendantTownship’s zoning ordinance to seek site plan approval for its donation bins. [Docket
No. 11, p. 22-23] Defendant argues that the Plaintiff did not try to receive approval
for its donation bins before filing this action. [Docket No. 11, p. 23] Defendant
contends that Plaintiff has not shown that it will suffer irreparable harm because
Plaintiff has not presented any evidence that the Ordinance bans donation bins and,
further, that the enforcement of the Zoning Ordinance only requires Plaintiff to follow
21

some procedures before placing the bins throughout the Township. Defendant asserts
that Plaintiff’s donation bins were set up illegally, in violation of the Township’s
zoning ordinance, and that the Court should not allow the Plaintiffs to benefit from
this illegal activity.
It is well settled that “[t]he loss of First Amendment freedoms, for even
minimal periods of time unquestionably constitutes irreparable injury.” Elrod v.
Burns, 427 U.S. 347, 373 (1976); Newsome v. Norris, 888 F.3d 371, 378 (6th Cir.
1989). The Sixth Circuit Court of Appeals has stated that “solicitations to pay or
contribute money, because they are so intertwined with speech, are entitled to
protection under the First Amendment.” Dayton Area Visually Impaired Persons,
Inc. v. Fisher, 70 F.3d 1474, 1481 (6th Cir. 1995) (citing Riley v. National Federation
of the Blind of North Carolina, Inc.,487 U.S. 781, 787-89 (1988).
Plaintiff has not shown that its constitutional rights, namely its First
Amendment rights, have been violated by the enforcement of Defendant’s Zoning
Ordinance. Though the Court appreciates that it may become more difficult for
Plaintiff to place bins within the Township and, further, that requiring property
owners to apply for site plans creates an additional hurdle for both the property
owners and for the Plaintiff that was not there before, the Court is not persuaded that
Plaintiff’s injury is irreparable as adequate remedies at law exist. Defendant’s zoning
22

ordinance has procedures in place that would allow bin holders (through property
owners) to apply for site plan approval or challenge the enforcement of the planning
commission’s decision to remove bins. Because there are alternative measures that
the Plaintiff could use to prevent the removal of its donation bins, the Court cannot
find that the Plaintiff has suffered an irreparable injury. Further, the Court notes that
Plaintiff’s claim for irreparable injury may be somewhat immature as at this point,
Plaintiff has not applied for site approval and does not know whether efforts to seek
site plan approval for its donation bins would be successful. The Court determines
that Plaintiff has not suffered an irreparable injury because the process in place to
grant Plaintiff relief has not been fully explored by the Plaintiff.
iii.
Substantial Harm To Others & Serving the Public
Interest
Lastly, to be granted injunctive relief, the Plaintiff has to show that an
injunction should be entered in order to prevent substantial harm to others and to
serve the public interest. The Court concludes that the Plaintiff has not made such
a showing.
Here, Plaintiff argues that it is in the public interest to prevent the Defendant
from violating its constitutional rights. [Docket No. 4, p. 23] Conversely, Defendant
contends that Plaintiff’s violation of the Zoning Ordinance constitutes a nuisance per

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se. [Docket No. 11, p. 24] Further, Defendant argues that the Court should not grant
the preliminary injunction because the Plaintiff’s donation bins have not been
reviewed for compliance with the Township’s zoning ordinance. Defendant claims
that compliance is necessary in order to make sure that all structures fit with public
health, safety, and welfare regulations which are within its duty as a municipality to
maintain and provide. Reviewing the pleadings, the Court is satisfied that though
some harm may befall Plaintiff with the additional duty to seek site approval, the
harm is not such that requires injunctive relief. The Court is also unpersuaded that
the public interest is best served by circumventing the ordinances that a Township has
in place when the ordinance has not been shown to be in violation of the
constitutional rights of its constituents.
III.

Conclusion

Determining that Plaintiff has not shown it is likely to succeed on the merits of its
claims that Defendant’s Zoning Ordinance is violative of its rights, accordingly,
IT IS ORDERED that Plaintiff’s Motion for a Preliminary Injunction [Docket
No. 4, Filed April 14, 2014] is DENIED.
S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: June 18, 2014
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I hereby certify that a copy of the foregoing document was served upon counsel of
record on June 18, 2014, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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