Outdoor Sys., Inc. v. City of Clawson

686 N.W.2d 815
CourtMichigan Court of Appeals
DecidedSeptember 15, 2004
Docket245069
StatusPublished
Cited by2 cases

This text of 686 N.W.2d 815 (Outdoor Sys., Inc. v. City of Clawson) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Outdoor Sys., Inc. v. City of Clawson, 686 N.W.2d 815 (Mich. Ct. App. 2004).

Opinion

686 N.W.2d 815 (2004)
262 Mich.App. 716

OUTDOOR SYSTEMS, INC., doing business as Infinity Outdoor, Plaintiff-Appellant,
v.
CITY OF CLAWSON, Defendant-Appellee.

Docket No. 245069.

Court of Appeals of Michigan.

Submitted May 12, 2004, at Detroit.
Decided July 6, 2004, at 9:25 a.m.
Released for Publication September 15, 2004.

*817 Bodman, Longley & Dahling L.L.P. (by James J. Walsh, Thomas G. Cecil, and Luttrell D. Levingston), Ann Arbor, for the plaintiff.

Howard & Howard Attorneys, P.C. (by Jon H. Kingsepp, James H. Geary, and Brad Rayle), and Johnson, Rosati, Labarge, Aseltyne & Field, P.C. (by Carol A. Rosati), Bloomfield Hills, Farmington Hills, for the defendant.

Before: SCHUETTE, P.J., and JANSEN and BANDSTRA, JJ.

BANDSTRA, J.

Plaintiff challenges the legality of defendant's ordinance that prohibits "billboards," meaning readily changeable signs unrelated to the principal use of the premises upon which they are located. We conclude that, because it advances no governmental interest, the ordinance's prohibition of readily changeable signs violates plaintiff's First Amendment right of free speech. We reverse and remand.

BACKGROUND FACTS

Plaintiff, now known as Viacom Outdoor, Inc., engages in outdoor advertising. Specifically, it erects and maintains signs, commonly known as billboards, on property that it owns or leases, and then sells advertising space on those signs. It leased the right to erect and maintain billboards at a number of locations in Clawson. However, Clawson has a zoning ordinance that regulates signs and specifically prohibits billboards. Accordingly, when plaintiff applied for building permits to erect billboards on the leased locations, defendant denied the requests largely on the basis of the billboard prohibition. In addition, the signs that plaintiff sought to erect[1] exceeded the size and height restrictions of the ordinance.

Plaintiff filed this action and moved for a preliminary injunction, alleging that defendant's total prohibition of the billboards *818 violated the City and Village Zoning Act (CVZA), MCL 125.592, and the free speech protection of the First Amendment. The trial court granted defendant's motion for summary disposition and denied plaintiff's motion for a preliminary injunction. Plaintiff appeals as of right.

STANDARD OF REVIEW

This appeal presents questions of statutory construction and constitutional interpretation, both of which we review de novo. Harvey v. Michigan, 469 Mich. 1, 6, 664 N.W.2d 767 (2003); Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 62, 642 N.W.2d 663 (2002). We also review de novo a trial court's ruling on a motion for summary disposition. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999).

ANALYSIS

Defendant's sign ordinance, Clawson Code § 34-1111, allows large outdoor signage within various zoning districts. In B-1 and B-2 districts, it allows wall-mounted signs of up to 150 square feet and freestanding signs, not more than 20 feet tall, of up to 80 square feet. In O-2, B-3, I-1 and I-2 districts, it allows wall-mounted signs up to 300 square feet and freestanding signs, not more than 30 feet tall, of up to 150 square feet. This section of the ordinance does not specify that any sign permitted by the section must be an accessory sign, i.e., a sign "which pertains to the principal use of the premises upon which such sign is located." Clawson Code, § 34-1102. Instead, there is no limitation whatever on the messages that can be placed on the allowed signs.

The main issue presented here is not, therefore, that Clawson does not allow large outdoor advertising signs. Instead, plaintiff challenges the provision of the Clawson ordinance that prohibits "billboards" throughout the city.[2] Clawson Code, § 34-1110(13). A billboard is defined, in pertinent part, as a "nonaccessory sign ... on which a display can be posted, painted or otherwise affixed in a manner which is readily changed." Id., § 34-1102. A nonaccessory sign is defined as "a sign which does not pertain to the principal use of the premises on which such sign is located." Id. Because of the prohibition of billboards, so defined, plaintiff is prevented from doing business within the city of Clawson.

Plaintiff argues that the trial court erred in granting summary disposition to defendant because there is a genuine issue of material fact concerning plaintiff's claim that, by prohibiting billboards, defendant violated § 12 of the CVZA, MCL 125.592, which provides:

A zoning ordinance or zoning decision shall not have the effect of totally prohibiting the establishment of a land use within a city or village in the presence of a demonstrated need for that land use within either the city or village or the surrounding area within the state, unless a location within the city or village does not exist where the use may be appropriately located or use is unlawful.

To establish a claim[3] that defendant engaged in unlawful exclusionary zoning under *819 this section, plaintiff had to show, among other things, that "there is a demonstrated need for the land use within either [sic] the city or village or the surrounding area." Adams Outdoor Advertising, Inc. v. Holland, 463 Mich. 675, 684, 625 N.W.2d 377 (2001) (Adams II). Under the terms of the statute, this showing is a threshold for application of the statute in the sense that a total prohibition of a lawful land use is only proscribed "in the presence of a demonstrated need for that land use...." MCL 125.592.

Although the trial court did not reach this question, we conclude that plaintiff failed to meet this burden.[4] Plaintiff supported its assertion of need by presenting the affidavit of a sales manager, Robert Brown, which indicated that demand for billboards in southeast Oakland County exceeds supply. However, we are bound under MCR 7.215(J)(1) by the holding in Adams Outdoor Advertising, Inc. v. Holland, 234 Mich.App. 681, 698, 600 N.W.2d 339 (1999) (Adams I), aff'd on other grounds in Adams Outdoor Advertising, 463 Mich. at 677-678, 625 N.W.2d 377 that, "while the desire by national, state, and local advertisers for billboards may well demonstrate a demand for the billboards, such proofs are not sufficient to demonstrate the requisite public need for new billboards." Further, we agree with this reasoning. It extended the analysis of precedents extending back to Fremont Twp. v. Greenfield, 132 Mich.App. 199, 204-205, 347 N.W.2d 204 (1984) (holding that the CVZA was not violated in the absence of evidence that there was need for additional junkyards within a township). See Adams I, supra

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