Central Advertising Co. v. City of St. Joseph

309 N.W.2d 613, 107 Mich. App. 488

• Court: Michigan Court of Appeals
• Decided: June 19, 1981
• Docket: Docket 49529
• Status: Published

Opinion

Per Curiam.

In September or October of 1974, plaintiff filed an application with defendant City of St. Joseph to construct a billboard at 1127 Main Street. The application was denied. Plaintiff appealed to the city’s board of appeals which tabled the matter in January of 1975. Plaintiff apparently had wanted to erect three additional billboards at 1021 Main, 342 Main, and 1719 Lake Shore; however, no applications for construction at these sites were filed.

On February 3, 1975, defendant adopted the sign ordinance in question, § 81.05(a) of the Code of Ordinances of the City of St. Joseph, which reads in part:

"No person shall erect any billboard, advertising sign or structure having an area of more than 100 square feet in the City of St. Joseph without first obtaining a permit to do so from the Building Inspector or other authorized agent and no such billboard, advertising sign or structure which is not attached to or a part of a building shall be erected within 100 feet of any public street or highway. No such billboard, advertising sign or structure shall be attached to any building or structure unless it advertises a firm, building or activity located in the same building.”

Plaintiff commenced the instant action in circuit court, seeking an order directing the city to issue a permit for the erection of the billboard at 1127 Main Street. After a trial on the merits, the court ruled against plaintiff.

On appeal, plaintiff has raised six separate issues; however, when all of the camouflage is stripped away, the real question is whether or not the city’s sign ordinance, which requires a 100-foot setback for advertising signs, is reasonable. The trial court found that the setback was reasonable.

We disagree. The practical effect of the 100-foot setback requirement for advertising signs is to exclude advertising signs in the City of St. Joseph. Central Advertising Co v City of Ann Arbor, 391 Mich 533; 218 NW2d 27 (1974), held that such actions were not permissible.

As to the question of damages, we find that the refusal to issue the permit for the 1127 Main Street location was improper under the ordinance in effect at that time. Refusal to issue a permit is a ministerial act upon which liability can be predicated. Armstrong v Ross Twp, 82 Mich App 77; 266 NW2d 674 (1978). It was error for the trial court to rule that plaintiff was not entitled to damages for the denial of the permit at the 1127 Main Street location. At the time plaintiff applied, there was no setback requirement nor did the zoning ordinance exclude it.

Reversed and remanded for proceedings consistent with this opinion.