International Outdoor, Inc. v. Troy, City of
Filing
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ORDER denying 12 defendant's Motion for Reconsideration. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
INTERNATIONAL OUTDOOR, INC.,
Plaintiff,
Case No. 17-10335
HON. GEORGE CARAM STEEH
vs.
CITY OF TROY,
Defendant.
__________________________/
ORDER DENYING DEFENDANT’S
MOTION FOR RECONSIDERATION (DOC. 12)
Plaintiff International Outdoor, Inc. filed a complaint alleging that
defendant City of Troy violated the First Amendment. (Doc. 1). Defendant
filed a motion to dismiss on March 7, 2017. (Doc. 6). The Court issued an
order granting in part and denying in part defendant’s motion to dismiss on
June 30, 2017. (Doc. 10). This matter is presently before the Court on
defendant’s motion for reconsideration of that order. (Doc. 12).
I. Legal Standard
E. D. Mich. LR 7.1(h)(3), which governs motions for reconsideration,
provides:
Generally, and without restricting the court’s
discretion, the court will not grant motions for
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rehearing or reconsideration that merely present the
same issues ruled upon by the court, either
expressly or by reasonable implication. The movant
must not only demonstrate a palpable defect by
which the court and the parties and other persons
entitled to be heard on the motion have been misled
but also show that correcting the defect will result in
a different disposition of the case.
See Hansmann v. Fid. Invs. Institutional Servs. Co., 326 F.3d 760, 767 (6th
Cir. 2003) (A motion for reconsideration is granted only “if the movant
demonstrates that the district court and the parties have been misled by a
palpable defect, and correcting the defect will result in a different
disposition of the case”). “A palpable defect is a defect which is obvious,
clear, unmistakable, manifest or plain.” Fleck v. Titan Tire Corp., 177 F.
Supp. 2d 605, 624 (E.D. Mich. 2001) (internal citations and quotations
omitted). “The decision whether to grant reconsideration lies largely within
the discretion of the court.” Yuba Natural Res., Inc. v. United States, 904
F.2d 1577, 1583 (Fed. Cir. 1990). It is well established, however, that “a
motion for reconsideration is not properly used as a vehicle . . . to advance
positions that could have been argued earlier but were not.” Smith ex rel.
Smith v. Mount Pleasant Public Schools, 298 F. Supp. 2d 636, 637 (E.D.
Mich. 2003). See also Sommer v. Davis, 317 F.3d 686, 691 (6th Cir. 2003).
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II. Analysis
A. Prior Restraint
Preliminarily, the Court shall address defendant’s interpretation of the
Order’s conclusion. Defendant repeatedly asserts that the Court
determined that the Ordinance is an unconstitutional prior restraint.
Defendant’s interpretation is misguided. The Court did not rule that the
Ordinance is an unconstitutional prior restraint. It merely concluded that
plaintiff had not failed to state a claim upon which relief could be granted.
Judgment has not been entered in favor of the plaintiff regarding Count I
and defendant may continue to litigate this issue by means of a motion for
summary judgment or trial.
Defendant makes several allegations of error in the Court’s analysis
of the criteria in section 85.01.08(B)(1). First, it argues that the Court erred
by “analyz[ing] the appellate or sign permit variance process instead of
focusing on the initial sign application review.” (Doc. 12 at PageID 408).
Defendant asserts that the initial sign application review, which determines
whether a proposed sign exceeds the specified height, size, and setback
limitations, does not empower the Troy Zoning Administrator with any
discretion. While this may be true, plaintiff did not challenge the initial sign
application review alone. The complaint alleges that the entirety of Chapter
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85 of the Sign Ordinance is unconstitutional. (Doc. 1 at PageID 10).
Moreover, the complaint specifically alleges that “Chapter 85 of the Sign
Ordinance unconstitutionally grants unfettered discretion to Troy’s Building
Code Board of Appeals because it does not contain narrow, objective, and
definite standard to guide the decision of the Building Code Board of
Appeals.” (Doc. 1 at PageID 10). As such, it was proper for the Court to
analyze the variance process.
Second, defendant asserts that Count I should be dismissed because
the Ordinance’s variance criteria are substantially similar to a Michigan
statute and case law permitting zoning variances. It seeks to relitigate
whether the Ordinance’s variance provision gives the Board of Appeals
unbridled discretion to grant variances. This issue was expressly ruled
upon in the Court’s order. Defendant’s argument is inappropriate at this
stage. E.D. Mich. LR 7.1(h)(3) (“the court will not grant motions for
rehearing or reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable implication.”).
Moreover, while defendant now relies on new citations to Mich. Comp.
Laws § 125.3604 and additional case law, defendant could have
referenced these sources in its previous motion. Smith, 298 F. Supp. 2d at
637 (“a motion for reconsideration is not properly used as a vehicle . . . to
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advance positions that could have been argued earlier but were not.”).
Finally, defendant’s citations do not alter the Court’s analysis.
Mich. Comp. Laws § 125.3604 permits the availability of variances for
practical difficulties or unnecessary hardship. It does not, however,
illustrate that defendant’s Ordinance is constitutional. The statute does not
set forth requirements governing a zoning board of appeals, but instead
notes that each local unit of government’s “ordinance shall establish
procedures for the review and standards for approval of all types of
variances.” Mich. Comp. Laws § 125.3604(7). The Court must, therefore,
address the specific procedures and standards included in defendant’s
Ordinance.
Further, Norton Outdoor Advertising, Inc. v. Pierce Township, No.
1:05cv401, 2007 WL 1577747 (S.D. Ohio May 30, 2007), Midwest Media
Property, L.L.C. v. Symmes Township, Ohio, No. 1:04-CV-604, 2006 WL
2347489 (S.D. Ohio May 22, 2006), and International Outdoor, Inc. v. City
of Roseville, No. 313153, 2014 WL 1778381 (Mich. Ct. App. May 1, 2014)
are distinguishable. These courts did not uphold the challenged ordinances
merely because they required the applicant to show a practical difficulty or
unnecessary hardship. Instead, the courts analyzed the evidence
presented in each specific case in light of the entire variance provision;
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none of which appear substantially similar to 85.01.08(B)(1). As such, it is
inappropriate to apply the conclusions these courts reached when
addressing motions for summary judgment to the matter presently before
the Court.
Third, defendant erroneously interprets the Order’s statement that the
Ordinance does not identify how the Board of Appeals determines whether
the three criteria in 85.01.08(B)(1) are met. It is clear that the applicant
bears the burden to satisfy these criteria. But it is not clear what an
applicant must show to satisfy this burden. The Board of Appeals does not
define general concepts like “public interest,” “adverse[ ] affect,” “hardship”
and “practical difficulty.” Moreover, it is unclear whether an applicant will
receive a variance even if they establish a showing of all of these criteria.
Public hearings and appeals do not remedy this lack of clarity. As such, the
Court concluded that plaintiff had sufficiently alleged that the provision was
not narrow, objective, and definitive.
For the reasons stated above, defendant’s arguments to reconsider
the Court’s analysis regarding the criteria in section 85.01.08(B)(1) fail.
Defendant also challenges the Court’s analysis regarding time limits.
In its motion to dismiss, defendant argued that time limits were not
applicable to the content neutral Ordinance. Defendant now argues, for the
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first time, that the Ordinance is valid because it imposes time restrictions.
Defendant does not cite to language within the Ordinance, but rather, Mich.
Comp. Laws § 125.1514(1), which states:
A construction board of appeals for each
governmental subdivision shall hear the appeal and
render and file its decision with a statement of
reasons for the decision with the enforcing agency
from whom the appeal was taken not more than 30
days after submission of the appeal.
“[A] motion for reconsideration is not properly used as a vehicle . . . to
advance positions that could have been argued earlier but were not.”
Smith, 298 F. Supp. 2d at 637. The Court therefore rejects defendant’s
argument to reconsider the analysis regarding time limits. Defendant may
subsequently raise this argument if it chooses to file a motion for summary
judgment, which grants plaintiff the opportunity to respond.
B. Severability
Defendant argues that the Court incorrectly determined that Section
85.01.08(B)(1) is not severable. Defendant asserts that the provision
should be severed because, in 2005, when defendant first adopted a sign
ordinance, it included a severability clause stating that if any section of the
ordinance is held invalid, the remaining portion shall remain in full force and
effect. (Doc. 6-1 at 155). The current Ordinance, however, does not contain
a severability clause. The decision to repeal this language may be
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reasonably interpreted to support the idea that the City of Troy no longer
wanted an invalid or unconstitutional provision to be severed. As such,
defendant’s argument does not demonstrate palpable error.
Defendant also argues that failing to sever this provision makes the
entire Ordinance invalid, which is erroneous because it severely prejudices
the public interest. The Court has not ruled that the entire Ordinance is
invalid. The Court’s June 30, 2017 Order merely concludes that Count I
does not fail to state a claim upon which relief can be granted. As such,
defendant’s prejudice argument fails.
III. Conclusion
For the reasons stated above, defendant’s motion is DENIED.
IT IS SO ORDERED.
Dated: December 20, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
December 20, 2017, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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