Central Advertising Co. v. City of Ann Arbor

218 N.W.2d 27, 391 Mich. 533, 1974 Mich. LEXIS 152

Opinions

Levin, J.

I

The trial judge found, and the record supports this finding, that the interplay of diverse restrictions in the Ann Arbor Sign Ordinance effectively outlaws billboards. In the guise of regulation, the City Council of Ann Arbor has proscribed billboards altogether.

The home-rule act authorizes a charter provision "[f]or licensing, regulating, restricting and limiting the number and locations of billboards within the city”. MCLA 117.4i(5); MSA 5.2082(5).

The charter of the city authorizes "[licensing, regulating, and limiting the number and location of billboards and advertising signs”.¹

Neither the home-rule act nor the charter of the city authorizes the council to eliminate billboards. In combination, the various restrictions, tantamount to a proscription of billboards, exceed the authority of the council under the home-rule act and charter.

II

The ordinance does not ban all signs — as distinguished from billboards — either in terms or in practical effect.

The 177 sign plaintiffs who joined in the complaints filed in these consolidated proceedings are affected differently by the multifarious sign limitations in the ordinance.

The trial judge’s opinion does not contain particularized findings of fact. His findings were conclusory: "the Sign Ordinance is a transparent attempt to exclude billboards, and other forms of signs, from the entire City, in time, and not to exclude such merely from residential areas”. While the record clearly supports this conclusion as to billboards, it is manifest that the ordinance, although it places innumerable restrictions on signs, does not ban them altogether.

The plaintiffs do not contend that all signs are proscribed presently or in time. They claim, rather, that certain provisions of the sign ordinance are unreasonable or unreasonable as applied to them. They rely on the "finding” just quoted and the following also copclusory "finding”:

"[I]t is the opinion of this court, and the court finds as a matter of fact and law that the City of Ann Arbor Sign Ordinance (so called) is and was an unreasonable police power regulation of said City, is too general, too broad in its attempted application, confiscatory (under the De Mull² case), zoning legislation in nature which did not comply in its enactment to statutory regulation and an unconstitutional violation of freedom of speech, press and religion.”

The opinion of the trial court sweeps as broadly as the ordinance so roundly condemned. We are left to speculate what specific provisions of the sign ordinance — what sign restrictions — are "too general, too broad”.

Our colleagues’ opinion cites various examples of "unreasonable” provisions of the ordinance. These examples are not derived from findings of the trial judge — there are, to repeat, no specific findings. A few of the examples are mentioned in the brief of the billboard plaintiff, Central Advertising Company. Most of the examples are derived from the record without the benefit of adversary briefing in this Court.³

The joint brief of the sign plaintiffs makes three arguments, one of which is adopted by our colleagues:⁴ "The Ann Arbor Sign Ordinance constitutes an unconstitutional exercise of the police power”. In support, counsel argues that the ordinance is an "attempted wholesale proscription of certain types of signs”. (Emphasis supplied.) No example is given other than a fleeting reference focusing on the amortization issue (see fn 2): "In the instant case, of course, for moving signs, such as Ann Arbor Bank’s signs, there is only a 75 day amortization period and no compensation provision whatsoever is provided”.

While some provisions of the sign ordinance may be unreasonable — e.g., outlawing moving signs, the one example cited in the brief of counsel — it is doubtful whether each and every sign restriction in the Ann Arbor Sign Ordinance can properly be said to be unreasonable or unreasonable as applied to 177 separate plaintiffs.⁵

It is not apparent which of the 177 plaintiffs are adversely affected by the "unreasonable” provisions of the sign ordinance adverted to in our colleagues’ opinion or how many might be similarly situated. Yet all 177 plaintiffs are to be granted relief, and not just the "offending” provisions of the ordinance but the entire ordinance is declared unreasonable and unconstitutional.

An appellate court may, indeed, properly make an independent search of the record. However, when an appellate court does so without the guidance of adversary presentation directed to the record it runs the risk of overlooking a fact lurkiifg in the record or, although not of record, known to, and recognized by, counsel. If the ordinance were not so complex and if there were not so many plaintiffs with seemingly different complaints, we might join our colleagues in an independent search of the record.

We have concluded, however, on the same principles that preclude us from attempting to decide this intricate litigation on the allegations of the complaint and the traverse in the answer., which preclude us from deciding an abstract, generalized controversy without supporting evidence, that we should defer decision in this case. We are presented with a record concerning a number of issues undifferentiated by fact-finding and with briefs which make no reference to evidence which would support and counter specific findings.

Before grappling with the constitutionality of the sign restrictions in this ordinance,⁶ *8 we should require specific fact-finding, plaintiff by plaintiff, and briefing focused on the evidentiary support for such findings.

We remand for specific fact-finding and direct report to us on the record already made, supplemented as the parties desire, and further briefiñg after such fact-finding. On receipt of that report and further briefs we can then appraise the reasonableness of the provisions of the sign ordinance in the context of the facts as they affect the individual sign plaintiffs.

T. M. Kavanagh, C. J., and T. G. Kavanagh and Williams, JJ., concurred with Levin, J.

1

Ann Arbor Charter, § 3.1(2)(f).

2

De Mull v City of Lowell, 368 Mich 242, 250; 118 NW2d 232 (1962).

This Court stated, "Whatever the law may be in other States, law stemming as it does from specific and variant statutory zoning enactments and judicial construction thereof, the fact remains that the cities of Michigan have not as yet been authorized, by requisite legislative act, to terminate nonconforming uses by ordinance of time limitation”.

The Court of Appeals rejected the city’s efforts to distinguish De Mull stating, "De Mull is controlling in its holding that amortization of nonconforming uses is improper”. Central Advertising Co v Ann Arbor, 42 Mich App 59, 73; 201 NW2d 365 (1972).

3

The brief filed in behalf of the sign plaintiffs accepts the facts as stated by Central Advertising Company. Central Advertising’s statement of facts focuses primarily on its principal concern — the billboard provisions of the ordinance.

4

The other two arguments are that Michigan law does not authorize amortization of nonconforming uses (see fn 2); and that the sign ordinance is in reality a zoning ordinance which was not enacted in a manner conforming to the requirements of the city and village zoning-enabling act. MCLA 125.584; MSA 5.2934. The reenactment of the ordinance as Chapter 61A in a manner conforming to those requirements appears to have mooted this latter issue in this action for a declaratory judgment.

5

Among the types of signs prohibited by § 5:504 of the sign ordinance are:

"(e) Any sign or sign structure which (a) is structurally unsafe, or (b) constitutes a hazard to safety or health by reason of inadequate maintenance, dilapidation or abandonment, or (c) is not kept in good repair, or (d) is capable of causing electrical shocks to persons likely to come in contact with it.

"(f) Any sign which, by reason of its size, location, content, coloring or manner of illumination, constitutes a traffic hazard or a detriment to traffic safety by obstructing the vision of drivers, or by obstructing, or detracting from the visibility of any traffic sign or control device on public streets and roads.

"(g) Any sign which obstructs free ingress to or egress from a required door, window, fire escape or other required exit way.

"(h) Signs which make use of words such as 'Stop’, 'Look’, 'Danger’, or any other words, phrases, symbols or characters, in such a manner as to interfere with, mislead or confuse traffic. * * *

"(k) Any sign now or hereafter existing which no longer advertises a bona fide business conducted, or a product sold.”

6

The sign plaintiffs, except for intervenor John Lee Oldsmobile, Inc., do not appear to have availed themselves of an administrative remedy set forth in the ordinance by applying to the Sign Board of Appeals for a variance. John Lee Oldsmobile sought and was granted a variance and then withdrew from the action subsequent to the judgment of the trial court.

Relief obtained through the administrative process might render constitutional adjudication unnecessary or premature.