Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

1407 LLC v. City of Fort Wayne

United States District Court, N.D. Indiana, Fort Wayne Division

January 25, 2019

1407, LLC, Plaintiff,
v.
CITY OF FORT WAYNE, INDIANA and FORT WAYNE BOARD OF ZONING APPEALS, Defendants.

          OPINION AND ORDER

          THERESA L. SPRINGMANN, CHIEF JUDGE

         This matter is before the Court on the Plaintiff's, 1407, LLC, Motion for Preliminary Injunction and Request for Evidentiary Hearing [ECF No. 3] and the Defendants', City of Fort Wayne (the City) and the Fort Wayne Board of Zoning Appeals (the BZA), Motion for Partial Summary Judgment [ECF No. 25]. For the reasons stated below, the Court DENIES the Plaintiff's Motion for a Preliminary Injunction and Request for Evidentiary Hearing [ECF No. 3] and GRANTS the Defendants' Motion for Partial Summary Judgment [ECF No. 25].

         STATEMENT OF FACTS

         The Plaintiff, 1407 LLC, is the purchaser and occupant of the property at 1407 S. Calhoun Street in Fort Wayne, Indiana (the Property) under a land contract with Fort Wayne Building, LLC (FWB). The Plaintiff's proposed use for the Property is categorized as either an “adult cabaret”[1] or an “adult nightclub”[2] under the Fort Wayne Zoning Ordinance (the FWZO), which qualifies as a “Sexually Oriented Business.”[3] The Property was used as a Sexually Oriented Business from approximately 1976 to October 2016.

         The Property is in an area of the City zoned as Downtown Core (DC Zoning District). Sexually Oriented Businesses are not permitted within the DC Zoning District but are permitted within the City's Intensive Commercial Zoning District (C4 Zoning District). The Property's previous use as a Sexually Oriented Business from 1976 to October 2016 in the DC Zoning District was permitted and grandfathered under Section 157.504(C)(1) of the FWZO, which states: “Except as otherwise provided in this section, a use that existed as of March 2, 1988, or that subsequently becomes nonconforming as a result of an amendment to this ordinance, may be continued.” The FWZO permits nonconforming use to continue, but this right is not absolute and may be lost under certain circumstances, including the discontinuation of use for twelve consecutive months. FWZO Section 157.504(F)(1)(a) provides: “Any nonconforming use that has been discontinued for a period of twelve (12) consecutive months as determined by the Zoning Administrator shall be deemed abandoned and shall not be permitted to be reestablished. Any subsequent use of the lot shall only conform to the use provisions in this ordinance.”

         Around October 2016, the tenant operating a Sexually Oriented Business on the property lost its tenancy. In November 2016, FWB obtained permits to remodel the interior of the building to prepare to re-open it as an adult cabaret/nightclub. Between November 2016 and December 2017, neither FWB nor the Plaintiff sought an Improvement Location Permit or Certificate of Use within the 12-month period under FWZO § 157.504(F)(1)(a) to continue a Sexually Oriented Business at the Property. In November 2017, the proposed new tenant's, Fort Wayne's Finest DT, Inc., counsel contacted city officials to ascertain the status of final inspections for the building. Counsel for Fort Wayne's Finest DT, Inc., stated that it understood that the Property was a grandfathered facility and that it wanted to reopen before November 25, 2017, the one-year anniversary of the prior business's closing.

         Subsequently, on December 1, 2017, the Fort Wayne Zoning Administrator wrote to the FWB, the owner of the Property, and the proposed operator of the Sexually Oriented Business, to inform them that the nonconforming use for the Property had been abandoned for twelve months pursuant to FWZO § 157.504(F)(1)(a). The Zoning Administrator advised the parties that it could appeal this determination to the Fort Wayne Board of Zoning Appeals (BZA) within thirty days, but neither FWB nor the proposed operator of the Sexually Oriented Business did so.

         Fort Wayne's Finest DT, Inc., was unable to finalize its improvements to the property and the Plaintiff, 1407, LLC, assumed occupancy in February 2018. On March 27, 2018, the Plaintiff, as the new purchaser of the Property and proposed operator of a Sexually Oriented Business, applied for a Certificate of Use to operate an “adult bar” on the Property. The Zoning Administrator denied the Plaintiff's application as a Sexually Oriented Business is not a permitted use in a DC Zoning District. The Plaintiff and FWB appealed the zoning determination to the BZA, which affirmed the Zoning Administrator's decision on June 21, 2018.

         On July 19, 2018, the Plaintiff filed a Complaint [ECF No. 1]. The Plaintiff contends that: (1) the FWZO violates its rights under the First and Fourteenth Amendments and seeks declaratory relief thereof (Count I); (2) the Plaintiff has suffered and will continue to suffer harm due to the Defendants' violations of the First and Fourteenth Amendment and is thus entitled to a permanent injunction (Count II); (3) the Defendant is entitled to a declaration that the Defendants' treated the Plaintiff disparately in violation of the Fourteenth Amendment (Count III); (4) the Plaintiff is entitled to a preliminary injunction (Count IV); (5) the Plaintiff is entitled to recover compensatory damages of $500, 000 due to the Defendants' violations of the First and Fourteenth Amendment (Count V); (6) the case merits an order reversing and setting aside the BZA decision pursuant to Ind. Code § 36-7-4-1600, et seq., and compelling the Defendants to issue the Plaintiff a certificate of use for an adult cabaret/nightclub at its premises (Count VI).

         On July 19, 2018, the Plaintiff filed a Motion for Preliminary Injunction and Request for Evidentiary Hearing [ECF No. 3]. On September 7, 2018, the Defendants filed a Motion for Partial Summary Judgment [ECF No. 25]. The Defendants argue that they are entitled to summary judgment as a matter of law on all the Plaintiff's federal law claims brought in Counts I, II, III, IV, and V of the Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 56 and N.D. Ind. L.R. 56-1. The Defendant filed a combined brief [ECF No. 26] in support of summary judgment and in opposition to Plaintiff's preliminary injunction motion. On October 1, 2018, the Plaintiff filed a Reply [ECF No. 28] in further support of their motion for preliminary injunction. Separately, on the same day, the Plaintiff filed a Response [ECF No. 29] to the Defendants' Motion for Partial Summary Judgment. On October 19, 2018, the Defendants filed a Reply in Support of their Motion for Partial Summary Judgment [ECF No. 31].

         STANDARD OF REVIEW

         Summary judgment is proper where the evidence of record shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the non-movant to “go beyond the pleadings” to cite evidence of a genuine factual dispute precluding summary judgment. Id. at 324. “[A] court has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). If the non-movant does not come forward with evidence that would reasonably permit the finder of fact to find in its favor on a material issue, then the Court must enter summary judgment against it. Id.

         ANALYSIS

         The Plaintiff alleges that the Defendants violated its rights pursuant to the First and Fourteenth Amendment in denying its application for a Certificate of Use to operate an adult cabaret or nightclub at its premises, while issuing a permit to a similarly situated entity. The Plaintiff therefore requests that the Court issue an order reversing and setting aside the BZA decision pursuant to Ind. Code § 36-7-4-1600, et seq. and seeks declaratory relief as well as both a preliminary and permanent injunction.

         A. Plaintiff's First Amendment Claims

         The Plaintiff argues that the Defendants violated its First Amendment rights in three ways: first, the FWZO is a content-based restriction on expression; second, the Defendants limit Sexually Oriented Businesses to an unconstitutionally small number of parcels and do not allow sufficient alternative avenues of communication and; third, the Defendants' definition of adult cabaret and adult nightclub is unconstitutionally overbroad.

         1. Content-Based or Content-Neutral

          The Plaintiff argues that the FWZO is a content-based restriction and thus subject to a strict scrutiny analysis. (Pl.'s Resp. Br. in Opp. of Defs.' Mot. for Summ. J. at 16.) The Defendants argue that the FWZO should be subject to intermediate scrutiny analysis. (Defs.' Reply in Supp. of Mot. for Summ. J. at 4.) Regulations designed to restrain speech based on its content are subject to strict scrutiny and are presumptively invalid under the First Amendment. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Stromberg v. California, 283 U.S. 359, 368-69 (1931). Such regulations draw strict scrutiny “because their purpose is typically related to the suppression of free expression and thus contrary to the First Amendment ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.