Bronco's Entertainment, Ltd. v. Charter Township of Van Buren

No. 03-2242
File Name: 05a0752n.06
Filed: August 25, 2005

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRONCO’S ENTERTAINMENT, LTD., and )
RAWSONVILLE LAND CO., INC., )
)
Plaintiffs-Appellants, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CHARTER TOWNSHIP OF VAN BUREN, ) COURT FOR THE EASTERN
MICHIGAN LIQUOR CONTROL ) DISTRICT OF MICHIGAN
COMMISSION, and JACQUELINE )
STEWART, )
)
Defendants-Appellees. )

Before: NELSON and COOK, Circuit Judges; WEBER, District Judge.*

DAVID A. NELSON, Circuit Judge. This appeal represents the latest round in a

long-running dispute over the regulation of sexually oriented businesses in the Charter

Township of Van Buren, Michigan. The plaintiffs sued the township and the Michigan

Liquor Control Commission on the theory that certain licensing and zoning regulations

adopted by these governmental bodies violate the First and Fourteenth Amendments to the

United States Constitution. The district court initially dismissed the action for lack of

standing, but our court reversed the dismissal. On remand the district court entered judgment

*
The Honorable Herman J. Weber, United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 03-2242
Page 2

for the defendants; again the plaintiffs have appealed. We shall affirm the district court’s

judgment in part and reverse it in part.

We are not persuaded that the township’s site plan and “special” approval

requirements operate as prior restraints that violate the First Amendment. Site plan approval

is a generally applicable requirement that does not seek to limit speech, and the “special”

approval process is subject to procedural safeguards that adequately protect against

censorship. Nor are we persuaded that the Liquor Control Commission’s requirement of a

“topless activity permit” affects this case.

We are satisfied, moreover, that the township’s geographic restrictions on sexually

oriented businesses are aimed at the secondary effects of such businesses, are narrowly

tailored to serve a substantial government interest, and leave open alternative channels for

erotic expression. And we see nothing unconstitutional about a 182-day land use moratorium

adopted by the township; the moratorium was put in place for a proper purpose and not for

suppression of the plaintiffs’ speech.

We conclude, however, that the township’s system of licensing sexually oriented

businesses is unconstitutional insofar as it authorizes discretionary denial of a license without

providing for accelerated judicial review. Absent an appropriate judicial review procedure,

we are compelled to sever and invalidate the discretionary-denial feature of the licensing

ordinance. The rest of the ordinance will be left intact.

I
No. 03-2242
Page 3

The pertinent factual background is outlined in our earlier opinion. See Bronco’s

Entertainment, Ltd. v. Charter Township of Van Buren, 29 Fed. Appx. 310, 311-12 (6th Cir.

2002). In brief, the plaintiffs want to open a topless bar on a site that is ineligible for such

use under the township’s current zoning regulations. The plaintiffs sued the township, the

Liquor Control Commission and the Chair of the Commission on the theory that the

township’s zoning regulations and the state and local procedures for licensing sexually

oriented businesses are unconstitutional. The plaintiffs also challenged the constitutionality

of the township’s 182-day moratorium on the acceptance of new site plans — a moratorium

that prevented the plaintiffs from seeking approval under a more favorable zoning scheme.

After this court’s reversal of the ruling on standing, the district court entered judgment

on the merits in favor of the defendants.1 The court held (1) that the township’s zoning

regulations allow operation of sexually oriented businesses at an adequate number of

alternative sites within the township; (2) that the township’s zoning and licensing regulations

are narrowly tailored to protect the public from harmful secondary effects of sexually

oriented businesses; (3) that the township’s licensing requirements (including requirements

for site plan approval and “special” approval) do not constitute unlawful prior restraints on

1
The plaintiffs refer to the district court’s decision as a summary judgment, but the
court did not in fact act under Rule 56, Fed. R. Civ. P. The court declined to hold an
evidentiary hearing only because the parties agreed that the existing record was sufficient.
The court ordered the parties to file proposed findings of fact, and it resolved disputed issues
by making its own factual findings.
No. 03-2242
Page 4

protected speech; (4) that the state’s procedure for issuing a “topless activity permit” is

constitutional; and (5) that the township’s moratorium on consideration of new site plans did

not violate the First or the Fourteenth Amendment. The plaintiffs perfected a timely appeal.

The challenged regulations can be grouped into three categories: (a) licensing and

approval regulations at the state and local levels; (b) geographic zoning regulations; and (c)

the township’s moratorium on consideration of new site plans. We shall address these

categories seriatim.

The plaintiffs maintain that the challenged licensing and approval regulations

constitute unlawful prior restraints on protected speech.2 “A ‘prior restraint’ exists when the

exercise of a First Amendment right depends on the prior approval of public officials.” Deja

Vu of Nashville, Inc. v. Metropolitan Government of Nashville, 274 F.3d 377, 400 (6th Cir.

2001), cert. denied, 535 U.S. 1073 (2002). Prior restraints are presumptively invalid because

of “the risk of censorship associated with the vesting of unbridled discretion in government

officials” and “the risk of indefinitely suppressing permissible speech when a licensing law

2
The defendants have not challenged the proposition that the commercial display of
bare-breasted women involves constitutionally protected “speech.” Such a challenge, as
reasonable as it might otherwise seem, would fly in the face of binding precedent. See
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (plurality opinion) (“nude dancing
. . . is expressive conduct within the outer perimeters of the First Amendment”).
No. 03-2242
Page 5

fails to provide for the prompt issuance of a license.” Nightclubs, Inc. v. City of Paducah,

202 F.3d 884, 889 (6th Cir. 2000) (internal quotation marks omitted).

To overcome the presumption of invalidity, a scheme for licensing sexually oriented

businesses must incorporate two procedural safeguards. See Deja Vu of Nashville, 274 F.3d

at 400-01; Nightclubs, Inc., 202 F.3d at 890. First, the decision whether to issue a license

must be made within a specified — and brief — time period, and the status quo must be

maintained during that period and during the course of any judicial review. See Deja Vu of

Nashville, 274 F.3d at 400-01. Second, there must be an assurance that a judicial decision,

if sought by the applicant, can be obtained seasonably. See City of Littleton v. Z. J. Gifts D-

4, L.L.C., 124 S. Ct. 2219, 2224 (2004); Deja Vu of Nashville, 274 F.3d at 400-01.

The latter safeguard does not require special rules for accelerated review if the

licensing scheme “applies reasonably objective, nondiscretionary criteria” and “does not seek

to censor content.” Littleton, 124 S. Ct. at 2225-26; see Deja Vu of Cincinnati, L.L.C. v.

Union Township Board of Trustees, 411 F.3d 777, 787-88 (6th Cir. 2005). In those

circumstances, “ordinary court procedural rules and practices . . . provide reviewing courts

with judicial tools sufficient to avoid delay-related First Amendment harm.” Littleton, 124

S. Ct. at 2224-25, 2226; Deja Vu of Cincinnati, 411 F.3d at 787.

If a licensing scheme involves the application of subjective standards, rules requiring

a speedy judicial decision may be necessary. See Freedman v. Maryland, 380 U.S. 51, 59-60

(1965). In Freedman the Supreme Court “considered a [motion picture permitting] scheme
No. 03-2242
Page 6

with rather subjective standards . . . where a denial [of a permit] likely meant complete

censorship.” Littleton, 124 S. Ct. at 2225. The characteristics of that scheme “necessitated

that strict time limits be placed on judicial review.” Deja Vu of Cincinnati, 411 F.3d at 787.

With these principles in mind, we turn to the licensing and approval regulations that

are challenged in the case at bar. The local regulations require site plan approval, “special”

approval, and issuance of a sexually oriented business license. The state regulation requires

issuance of a “topless activity permit” under certain circumstances.

Except for detached one- and two-family dwellings, site plan approval is required for

all new land uses in the township. See Zoning Ordinance, Charter Township of Van Buren,

Michigan § 20.341. After an administrative review to ensure completeness and consistency

with zoning requirements, site plans are placed “on the Planning Commission agenda for

review and action at the earliest available meeting.” Id. Section 20.343 of the township’s

zoning ordinance gives a detailed list of the data that must be included in a site plan, and §

20.347 sets forth factors that “the Planning Commission shall consider” when reviewing a

plan. The factors enumerated in § 20.347 include such matters as “[t]he location and design

of driveways,” “traffic circulation features within the site and location of parking areas,” and

“[t]he installation, erection, and construction of transmission systems for essential services.”

Id. § 20.347.
No. 03-2242
Page 7

The record contains uncontroverted evidence that review and approval of a site plan

is a routine, nondiscretionary function. Gary Wilson, a member of the Planning

Commission’s staff, testified as follows:

“[O]nce a completed application is received and reviewed, it has to appear
before the planning commission. We have to, by state statute, grant or deny
approval, and if the site plan meets the requirements of the ordinance we must
grant approval. We have no discretion in that. It’s essentially an
administrative function.

* * *

As stated in the ordinance, the ordinance requirements for site plan review are
very specific, very, it’s laid out in a section, a clear section in the ordinance.
The information is normal and common. It’s factual information that has to
be in a plan and if it’s on there and it meets the ordinance, it has to be
approved.”

The township’s requirement of site plan approval does not, in our view, constitute a

prior restraint on speech, and it need not incorporate the procedural safeguards described

above. The ordinance is applicable to all commercial uses, not just those that involve

protected speech, and it does not grant government officials discretion to allow or forbid

expressive activity. As the Supreme Court has explained,

“laws of general application that are not aimed at conduct commonly
associated with expression and do not permit licensing determinations to be
made on the basis of ongoing expression or the words about to be spoken,
carry with them little danger of censorship. For example, a law requiring
building permits is rarely effective as a means of censorship. . . . [S]uch laws
provide too blunt a censorship instrument to warrant judicial intervention prior
to an allegation of actual misuse.” City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750, 760-61 (1988).
No. 03-2242
Page 8

Given Mr. Wilson’s testimony, we are satisfied that the township’s procedure for site plan

approval poses little, if any, risk of censorship. It does not, therefore, warrant the protections

that must accompany a scheme directly regulating speech.

“Special” approval is required for sexually oriented businesses and other uses that are

enumerated in the township’s zoning ordinance. See Zoning Ordinance, Charter Township

of Van Buren, Michigan §§ 20.653, 20.763, 20.792a. An application for “special” approval

must accompany the applicant’s site plan. See id. §§ 20.390(C), 20.878(c). The Planning

Commission is required to publish notice, hold a public hearing on the application, and then

recommend denial, approval, or approval with conditions. See id. § 20.390(D), (E).

Ordinarily, a special use must satisfy nine enumerated criteria before the Commission may

recommend its approval. See id. § 20.390(F).

The Planning Commission’s recommendation is forwarded to the township’s Board

of Trustees. See id. § 20.390(E). At least five but no more than 15 days before the Board

considers the matter, it must publish notice of the application. See id. § 20.878(d). Notice

must also be sent by mail or delivered in person to the owner of the property under

consideration and to owners and occupants of property located within 300 feet of that

property. See id. At the request of any of these persons, or upon the Board’s own initiative,
No. 03-2242
Page 9

a public hearing will be held. See id. § 20.878(e). The Board is forbidden to approve the

special use unless the nine enumerated criteria are met. See id. §§ 20.390(F), 20.878(f).

These special approval procedures are modified in two ways when the proposed use

is a sexually oriented business. First, more restrictive time limits apply. The Planning

Commission must conduct its public hearing within 60 days of receiving the completed

application, and it must make a recommendation at its next regularly scheduled meeting after

the hearing. See id. § 20.420(1)(d). (The record reflects that the Planning Commission

meets twice each month.) The Commission must forward its recommendation to the Board

of Trustees within 60 days, and the Board must grant or deny special approval “at this

meeting.” See id. It seems to us that the phrase “this meeting” refers to a Board meeting at

which the Planning Commission’s recommendation is considered, and we interpret the

ordinance as requiring such a meeting to occur within 60 days of the Commission’s making

its recommendation. Failure of the township to comply with any of these time limits “shall

be deemed to constitute granting of special approval.” Id.

Second, the nine criteria that must normally be met for special approval do not apply

to sexually oriented businesses. See id. §§ 20.763(h), 20.792a(a), 20.878(g). Instead, the

Board may only consider whether the proposed sexually oriented business complies with

geographic requirements set forth in the zoning ordinance. See id. §§ 20.878(g), 20.420(3).3

3
These modifications of the township’s special approval procedures were made after
a Michigan appellate court determined that the ordinary procedures were unconstitutional
when applied to sexually oriented businesses. See BRK, Inc. v. Charter Township of Van
No. 03-2242
Page 10

As we have said, special approval is not required for all commercial uses. Insofar as

it directly regulates expressive activity, the township’s special approval requirement poses

a risk of censorship. The procedural safeguards described above — a brief time limit for the

administrative determination, preservation of the status quo, and a mechanism to assure

availability of a prompt judicial decision — must therefore be in place.

We think that the time limits for special approval of a sexually oriented business are

short enough to pass constitutional muster. The maximum allowable time between the

township’s receipt of a completed application and the Board’s decision is 135 days (assuming

a maximum of 15 days between the hearing before the Planning Commission and the

Commission’s making a recommendation). This strikes us as a reasonable length of time,

given the nature of the decision to be made and the type of speech that is at issue. Special

approval depends on compliance with zoning regulations, as mentioned above, and

surveying or other fieldwork might therefore be necessary before the Board can approve a

proposed site. Moreover, public hearings must be held. The resulting delays do not, in our

view, impose an undue hardship on the “speakers” who are awaiting approval. The “speech”

that is being temporarily silenced, after all, is a type of expression in which “society’s interest

. . . is of a wholly different, and lesser, magnitude than the interest in untrammeled political

Buren, Nos. 163835, 170704 (Mich. Ct. App. Mar. 15, 1996) (unpublished). The principal
defects in the unmodified procedures were the lack of specified time limits and the
subjectivity of the criteria for granting approval. See id., slip op. at 9-11.
No. 03-2242
Page 11

debate.” City of Erie v. Pap’s A.M., 529 U.S. 277, 294 (2000) (plurality opinion) (internal

quotation marks omitted).

The status quo is preserved during the special approval process and any subsequent

judicial proceedings. See East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 225 (6th

Cir.) (“The status quo for a business seeking a permit to begin operating a sexually oriented

business . . . is non-operation.”), cert. denied 516 U.S. 909 (1995).

The ordinance does not establish special rules for an accelerated judicial decision, but

such rules are unnecessary under Littleton. As we shall see in section II.B, the zoning

requirements that must be satisfied for special approval to be granted are objective and

nondiscretionary. Ordinary court rules are constitutionally sufficient, therefore, “as long as

the courts remain sensitive to the need to prevent First Amendment harms and administer

those procedures accordingly.” Littleton, 124 S. Ct. at 2224. Michigan has rules that provide

for expeditious granting of injunctive relief, M.C.R. 3.310, “speedy hearing[s]” in actions

seeking declaratory relief, M.C.R. 2.605(D), expedited trials, M.C.R. 2.501(B), and

accelerated appellate review, M.C.R. 7.101(N)(4). The plaintiffs have not shown that

Michigan courts fail to apply these procedures when necessary to protect First Amendment

rights. Accordingly, we are not persuaded that the township’s special approval requirement

is constitutionally deficient.
No. 03-2242
Page 12

In addition to the requirements for site plan approval and special approval, the

township requires the owner or operator of a sexually oriented business to obtain a license

before commencing operations. See Code of Ordinances, Charter Township of Van Buren,

Michigan § 22-402. To obtain a license, the owner/operator must submit an application to

the township clerk. See id. § 22-403. The clerk has 10 business days to determine whether

the application is complete. See id. If it is, the clerk has four business days to forward the

application to any two of the three elected township officials. See id. These officials must

decide within 30 business days whether to approve a license. See id. Within that 30-day

period, “written reviews shall be prepared by the chief of police, fire department, and

building department.” See id.

Subsection 22-403(i) of the township’s code of ordinances identifies nine bases on

which a license to operate a sexually oriented business may be denied. These bases are as

follows:

“(1) An applicant is under 18 years of age.

(2) An applicant is overdue in his or her payment to the Township
of taxes, fees, fines, or penalties assessed against or imposed in
relation to a sexually oriented business.

(3) An applicant has failed to provide information reasonably
necessary for the issuance of the license or has falsely answered
a question or request for information on the application forms.
No. 03-2242
Page 13

(4) An applicant has been convicted of a violation of a provision of
this section, other than the offense of operating a sexually
oriented business without a license, within 2 years immediately
preceding the filing of the application. . . .

(5) The premises to be used for the sexually oriented business has
not been approved by the health department, fire department, or
building official; or the premises is not in compliance with
applicable laws and ordinances.

(6) The license fee required by this section has not been paid.

(7) An applicant has owned, operated, or been employed in a
sexually oriented business in a managerial capacity within the
preceding 12 months and has demonstrated an inability to
operate or manage a sexually oriented business premises in a
peaceful and law-abiding manner.

(8) An applicant has a record of conviction for an offense involving
gambling, narcotics, prostitution, pandering, pornography,
public indecency, sexual assault, or any violation of any
provision of this article within the preceding 2 years. . . .

(9) The applicant is not in compliance with applicable zoning
ordinances.” Id. § 22-403(i).

In addition, subsection 22-403(j) authorizes denial of a license if “the chief of police

determines that the applicant is presently unfit to operate a sexually oriented business due to

the applicant’s overall criminal record, regardless of the date of any criminal conviction.”

Id. § 22-403(j). In making this determination, “the chief of police shall consider the

following factors:

“(1) The extent and nature of past criminal activities;

(2) The age at the time of the commission of the crime;
No. 03-2242
Page 14

(3) The amount of time that has elapsed since the last illegal
activity;

(4) The conduct and work activity prior to and following the illegal
activity;

(5) Evidence of any rehabilitation or rehabilitative effort while
incarcerated or following release; and

(6) Other evidence of present fitness, including letters of
recommendation from prosecution, law enforcement, and
correctional officers who prosecuted, arrested, or had custodial
responsibility for that person, the sheriff and chief of police in
the community where the applicant resides, and any other
persons in contact with the applicant.” Id.

If the township denies an application for a license, the township has 30 business days

within which to seek a declaratory judgment approving the denial. See id. § 22-406. The

applicant “may, at any time, seek prompt judicial review of any act or failure to act by the

Township” in connection with an application for a license. Id.

We believe that the time period within which the township must grant or deny an

application for a license — a total of 44 business days, if the clerk uses the maximum

allowable time to review and forward the application — is sufficiently brief. As with special

approval, the status quo is preserved for an applicant seeking to open a new sexually oriented

business.4

4
The licensing ordinance might not preserve the status quo for some other applicants.
We can find no provision allowing sexually oriented businesses that were in operation at the
time the ordinance became effective to continue operating while applying for a license. Nor
is there a provision allowing continued operation during judicial review of a decision to
suspend or revoke, or not to renew, a license. These issues are not before us here, obviously.
No. 03-2242
Page 15

We are not satisfied, however, that the licensing ordinance assures the requisite

availability of a prompt judicial decision. Although most of the bases for denial of an

application are objective, two of them call for an exercise of discretion by government

officials. First, § 22-403(i)(7) requires a judgment as to whether an applicant who has been

connected with a sexually oriented business during the past year “has demonstrated an

inability to operate or manage a sexually oriented business premises in a peaceful and law-

abiding manner.” (In the case at bar the plaintiffs’ principal has operated other sexually

oriented businesses.) In East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220 (6th Cir.

1995), we held that an almost identical provision “vest[ed] unbridled discretion in the hands

of” the official making that judgment. See id. at 227. Second, § 22-403(j) requires an

assessment of the applicant’s “fitness” by the chief of police. The ordinance lists factors that

the police chief must consider, but the assessment is ultimately a subjective one.

It follows from this that ordinary court rules are not sufficient “to prevent undue delay

resulting in the unconstitutional suppression of protected speech.” Deja Vu of Cincinnati,

411 F.3d at 787 (internal quotation marks omitted). Because of the discretion it grants to

governmental officials, the township’s licensing scheme requires special rules that guarantee

an “unusually speedy judicial decision.” Littleton, 124 S. Ct. at 2226; see Freedman, 380

U.S. at 59-60; Deja Vu of Cincinnati, 411 F.3d at 787. No such rules are provided in the

ordinance or by state law.
No. 03-2242
Page 16

But this does not mean that the township’s licensing ordinance should be struck down

in its entirety. The ordinance contains a severability clause, under which “[e]very word,

sentence, clause and provision . . . is hereby declared to be severable, and if any word,

sentence, clause, provision or part thereof is declared to be invalid by a court of competent

jurisdiction, the remaining provisions shall not be affected.” Code of Ordinances, Charter

Township of Van Buren, Michigan § 22-408. If it is possible to do so, we must “give effect

to the . . . severability clause so as not to invalidate the entire [ordinance].” Deja Vu of

Nashville, 274 F.3d at 389. We see no reason not to give effect to the severability clause

here. See Jott, Inc. v. Charter Township of Clinton, 569 N.W.2d 841, 855 (Mich. Ct. App.

1997) (holding that invalid portions of an ordinance should be severed when “the remaining,

valid portions are sufficiently independent and complete” and consistent with the intent of

the ordinance). With §§ 22-403(i)(7) and 22-403(j) removed, the ordinance satisfies the

requirements of the First Amendment.

Section 916 of Michigan’s Liquor Control Code prohibits certain licensees from

allowing “topless activity” on licensed premises without a “topless activity permit” issued

by the Liquor Control Commission. See Mich. Comp. Laws § 436.1916. A permit will not

be issued without the approval of the Liquor Control Commission, “the local legislative body
No. 03-2242
Page 17

of the jurisdiction within which the premises are located,”5 and “[t]he chief law enforcement

officer of the jurisdiction within which the premises are located or the entity contractually

designated to enforce the law in that jurisdiction.” Id.

The plaintiffs correctly point out that § 916 sets forth no standards or time limits for

the approval and issuance of a topless activity permit. In circumstances other than those

presented here, the absence of standards and time limits might warrant a judicial

determination that the statute is an unconstitutional prior restraint.

By its terms, however, § 916 does not require licensees in Van Buren Township to

obtain a topless activity permit. The permit requirement applies only to “on-premises

licensees located in counties with a population of 95,000 or less.” Mich. Comp. Laws §

436.1916(3); see Ken-N.K., Inc. v. Vernon Township, 18 Fed. Appx. 319, 322 (6th Cir. 2001).

See also Charter Township of Van Buren v. Garter Belt, Inc., 673 N.W.2d 111, 122-23

(Mich. Ct. App. 2003) (quoting the legislative history of § 916), appeal denied, 682 N.W.2d

86 (Mich.), cert. denied, 125 S. Ct. 620 (2004). Van Buren Township is situated in Wayne

County, which has a population in excess of 95,000. See Garter Belt, Inc., 673 N.W.2d at

121. Accordingly, the plaintiffs in this case are not subject to the topless activity permit

requirement of § 916. The statute might restrain other persons’ speech in other counties, but

the plaintiffs cannot assert third parties’ First Amendment rights in a challenge based on the

5
Approval by the local legislative body is not required in cities with a population of
1,000,000 or more. See Mich. Comp. Laws § 436.1916(6)(b).
No. 03-2242
Page 18

lack of procedural safeguards. See Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 835

(6th Cir.) (“[P]laintiffs may not assert third party standing in every First Amendment facial

challenge; rather plaintiffs may only do so in vagueness and overbreadth challenges”), cert.

denied, 125 S. Ct. 98 (2004).

The plaintiffs’ next contention is that the township’s zoning ordinance violates the

First Amendment by unduly restricting expressive activity. The ordinance prohibits

operation of a sexually oriented business within 1,000 feet of a church, a school, a residential

zoning district, a lot or parcel in residential use, a public park, a child care facility, or another

sexually oriented business. It also prohibits sexually oriented businesses from being located

within 500 feet of designated highways and thoroughfares. Finally, the ordinance allows

sexually oriented businesses only in districts zoned for “general industrial” or “airport” uses,

and not in “general business” districts.

An ordinance that imposes geographic restrictions on sexually oriented businesses is

constitutional if (1) the restrictions are aimed at secondary effects of such businesses rather

than the content of the expression occurring there, (2) the restrictions are narrowly tailored

to serve a substantial government interest, and (3) alternative channels of expression remain

available. See Executive Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 796 (6th

Cir. 2004) (citing City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)).
No. 03-2242
Page 19

The district court found that the township adopted the challenged ordinance to combat

the secondary effects of sexually oriented businesses rather than to suppress erotic

expression. The township relied on memoranda prepared by McKenna Associates, Inc., a

community planning and urban design firm, which cited studies showing that sexually

oriented businesses are associated with increased crime rates and reduced property values,

among other societal harms. A municipality is not required to “conduct new studies or

produce evidence independent of that already generated by other cities to demonstrate the

problem of secondary effects, so long as whatever evidence the city relies upon is reasonably

believed to be relevant to the problem that the city addresses.” Erie, 529 U.S. at 296

(plurality opinion) (citation and internal quotation marks omitted); see also Executive Arts

Studio, 391 F.3d at 796. The McKenna memoranda were therefore sufficient to support the

township’s adoption of the ordinance, and we see no error in the district court’s finding on

this score.

It seems clear, moreover, that the challenged ordinance is narrowly tailored to serve

a substantial government interest. The importance of the township’s interest in combating

the secondary effects of sexually oriented businesses is “not debatable.” Wojcik v. City of

Romulus, 257 F.3d 600, 614 (6th Cir. 2001); see also Erie, 529 U.S. at 296 (plurality opinion)

(“The asserted interest[] . . . of combating the harmful secondary effects associated with nude

dancing [is] undeniably important.”). And the ordinance applies only to “that category of

establishments shown to produce the unwanted secondary effects,” i.e., sexually oriented
No. 03-2242
Page 20

businesses. Executive Arts Studio, 391 F.3d at 796 (internal quotation marks and brackets

omitted). The covered businesses are delineated in the ordinance, and the plaintiffs have

never argued that the ordinance’s reach extends to mainstream bookstores or other

establishments that are unlikely to create harmful secondary effects.

The plaintiffs suggest that the ordinance is not narrowly tailored because its

geographic restrictions are more stringent than those that were applied to sexually oriented

businesses under a previous ordinance. The suggestion misapprehends the nature of the

“narrowly tailored” test in this context. A content-neutral regulation, such as the township’s

ordinance, need not be less restrictive than other possible regulations; it need only refrain

from “burden[ing] substantially more speech than is necessary to further the government’s

legitimate interests.” Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989). That test is

met in the case at bar, given that the ordinance applies only to expression occurring in

sexually oriented businesses and, as we are about to explain, preserves a substantial number

of channels for such expression.

The record supports the district court’s finding that numerous channels of expression

are available to sexually oriented businesses in the township. The township presented

detailed maps and other evidence demonstrating that 48 sites could be used for sexually

oriented businesses under the current geographic restrictions and that 27 of these sites are

“easily developed.” (An “easily developed” site, according to a township witness, is one that

is predominantly vacant, is not a wetland, has road access, and has utilities in place or
No. 03-2242
Page 21

reasonable access to utilities.) The township presented additional evidence, in the form of

an affidavit executed by a real estate appraiser and broker, that the physical characteristics

of these sites and their proximity to existing utility lines put them within the relevant real

estate market. There was evidence, moreover, that an owner/operator of sexually oriented

businesses has expressed interest in developing such a business in the township’s airport

district.

The plaintiffs presented countervailing evidence, but we see nothing in it that should

have compelled the district court to reject the township’s position. To the contrary,

significant portions of the plaintiffs’ evidence seem to have been based on misapprehensions

of fact or law. One of the plaintiffs’ witnesses assumed, for example, that parcels situated

within 500 feet of a major thoroughfare would be disqualified in their entirety from use by

sexually oriented businesses. But the township showed that a parcel can be divided to create

a “flag lot” that is set back 500 feet from an adjacent road. The zoning ordinance expressly

excludes access easements and access strips from its separation requirements so as to allow

for such division. See Zoning Ordinance, Charter Township of Van Buren, Michigan §

20.420(3)(d)(7).

Another witness assumed that alternative sites for sexually oriented businesses must

be suitable for “generic commercial” development rather than industrial uses. But the

Supreme Court has made it clear that alternative sites need not be viable commercial

properties. See Renton, 475 U.S. at 53-54. As the Eleventh Circuit observed, “the land
No. 03-2242
Page 22

deemed available for adult businesses in Renton included acreage in all stages of

development from raw land to developed, industrial, warehouse, office, and shopping space.”

David Vincent, Inc. v. Broward County, 200 F.3d 1325, 1334 (11th Cir. 2000) (internal

quotation marks omitted). See also Z. J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683,

688 (10th Cir.) (upholding an ordinance that allowed sexually oriented businesses in industrial

zones only), cert. denied, 525 U.S. 868 (1998).

The plaintiffs’ witnesses also discounted certain sites because the sites are occupied

or because the current owners might be unwilling to sell to a sexually oriented business.

Under Renton, these factors are irrelevant. See David Vincent, Inc., 200 F.3d at 1335;

Woodall v. City of El Paso, 49 F.3d 1120, 1125-26 (5th Cir.), cert. denied, 516 U.S. 988

(1995).

Considering the entire record in the light of the applicable legal principles, we cannot

say that the district court committed clear error in accepting, as it did, the township’s

evidence that 27 “easily developed” sites are available to sexually oriented businesses. And

we agree with the district court’s conclusion that 27 sites — roughly one for every 900

residents of the township — provide adequate alternative channels for expression of the sort

proposed by the plaintiffs. The plaintiffs have offered no persuasive argument to the

contrary.

C
No. 03-2242
Page 23

The plaintiffs’ final challenge is to the township’s resolution suspending for 182 days

“the submission or receipt of projects which would require site plan review, rezoning

petitions, housing developments . . . , special approval uses, and the like.” Those 182 days

were to be used for updating the township’s master plan, revising its zoning regulations, and

otherwise “pursu[ing] the township strategy to create a premier community.” The resolution

prevented the plaintiffs from seeking site plan review and special approval before the

township adopted the licensing scheme and zoning regulations that are at issue here. It is

undisputed, however, that the township did not know about the plaintiffs’ plans to open a

topless bar when it adopted the resolution.

The plaintiffs contend that the 182-day moratorium violated their due process and

First Amendment rights. We disagree. The moratorium was generally applicable, was not

intended to suppress speech, and was of a reasonably short duration. Such “interim

development controls” are “used widely among land-use planners.” Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 337-38

(2002). They do not constitute prior restraints on speech, nor do they violate the Due Process

Clause so long as they are undertaken in good faith. See Phillips v. Borough of Keyport, 107

F.3d 164, 181 (3d Cir.), cert. denied, 522 U.S. 932 (1997). We have no basis on which to

question the township’s good faith here.

At oral argument, the plaintiffs’ attorney suggested that the moratorium was adopted

in violation of state law. “A violation of state law,” however, “is not a denial of due process
No. 03-2242
Page 24

. . . .” Pro-Eco, Inc. v. Board of Commissioners of Jay County, Indiana, 57 F.3d 505, 514

(7th Cir.) (citation and internal quotation marks omitted), cert. denied, 516 U.S. 1023 (1995).

The judgment of the district court is AFFIRMED in part and REVERSED in part,

and the case is REMANDED for entry of an order consistent with this opinion.