Sun Oil Co. v. City of Madison Heights

199 N.W.2d 525, 41 Mich. App. 47, 56 A.L.R. 3d 1198, 1972 Mich. App. LEXIS 1277
Michigan Court of Appeals·Decided May 25, 1972·No. Docket 11277·Published·Cited by 13 cases

Opinions

Bronson, J.

This suit arises out of defendant city’s Board of Zoning Appeals denying plaintiff’s request for a variance from the applicable zoning ordinance provisions. The matter was appealed to the Oakland County Circuit Court and, after testimony, the trial judge reversed the zoning board of appeals. This appeal follows of right.

Plaintiff, Sun Oil Company, occupies property known as 501 West Fourteen Mile Road, Madison Heights, Michigan. The property is zoned for gasoline station use and is adjacent to the 1-75 Inter[49] state Expressway and the Fourteen Mile Road entrance and exit. Defendant Madison Heights Zoning Board of Appeals refused plaintiff’s request to erect a high-rise sign of sufficient size and height to inform motorists traveling the 1-75 Expressway of plaintiff’s location and its desire to serve them.

Section 10.511(1) of the Madison Heights Zoning Ordinance prohibits free standing signs over 20 feet in height. Plaintiff alleged that the denial of a variance from this prohibition was arbitrary, unreasonable, and unconstitutional. It alleged that such a denial prohibited the highest and best use of the land resulting in irreparable damage to its business. Defendants asserted the board of appeals’ action was proper and within the standards set by the zoning ordinance.

At the trial, plaintiff contended that it purchased the property as an expressway service station expecting to pump 85,000 gallons of gasoline per month and that, although expected traffic counts had been met, only 19,000 gallons per month were pumped in 1969. The parties stipulated that traffic exceeds 52,000 vehicles per day on 1-75 and 37,000 per day on Fourteen Mile Road.

Kermit Bellette, city planner for Sterling Heights, Michigan, testified that one could not safely exit 1-75 after discovering the location of plaintiff’s property. He further testified that it was difficult to exit, knowing the location beforehand, at 65 miles per hour and that the trade a business is trying to attract should determine height limitations on signs.

Elmer Dreim, plaintiff’s assistant regional engineer, testified that a sign up to 100 feet can be constructed without endangering the community and without engineering problems. He also stated [50] that such signs are designed to resist 70-mile-per-hour winds.

Plaintiff’s real estate representative testified that the station 'was opened to serve expressway traffic but had never come close to expected sales. In his opinion, the primary reason for this was lack of proper identification. He conceded that both dealer and traffic affect sales volume, that a great deal of traffic passes the station on Fourteen Mile Road, and that sales at this location are not totally dependent on a high-rise sign. He also conceded that the station was making money, although not as much as expected.

Charles Michalski, a traffic engineering consultant, testified for defendants that the requested sign could create a safety problem as it was only briefly visible to a driver going north and would appear to be on top of J. L. Hudson’s building in the Oakland Mall to a driver going south. He also testified that such a sign could divert a driver’s attention from the road, creating a hazard due to the heavy traffic in the area.

Finally, Todd Kilroy, Madison Heights city planner, testified that the limitation was necessary to prevent a danger to the motoring public and to prevent a forest of such signs in the community. He also stated that, in his opinion, there is a difference between urban and rural areas and that drivers expect to find gasoline stations at freeway exits in urban areas.

The trial judge ruled that the ordinance was unconstitutional both in its total terms and as applied to plaintiff. The basis of his decision was that the 20-foot limitation to all signs was unreasonable since it did not make concessions for businesses which depend on such advertising and provided no means for considering special needs. As [51] to the plaintiff, the judge held that it had a special need justifying such a sign and that to deny its request was unreasonable.

In reviewing this case, we take special note of our function in zoning cases. The ordinance comes to us clothed in every presumption of validity and the party attacking it has the burden of proving it unreasonable and arbitrary. As the Supreme Court said in Brae Burn, Inc v Bloomfield Hills, 350 Mich 425, 432 (1957):

" * * * This is not to say, of course, that a local body may with impunity abrogate constitutional restraints. The point is that we require more than a debatable question. We require more than a fair difference of opinion. It must appear that the clause attacked is an arbitrary fiat, a whimsical ipse dixit, and that there is no room for a legitimate difference of opinion concerning its reasonableness. * * * ”

To stand against appellate review, the ordinance must bear a "reasonable” relationship to the health, safety, convenience, and general welfare. Reid v Southfield, 8 Mich App 553 (1967). In determining whether the ordinance is reasonable, we consider the district’s character, its suitability for particular uses, the conservation of property values and the general trend and character of building and population development. Alderton v Saginaw, 367 Mich 28 (1962).

Involved in the instant case is the businessman’s right to advertise on his property and the city’s right to regulate the proposed advertising method. The ordinance in question prohibits free-standing signs higher than 20 feet. The reason given by defendant for this ordinance is the public safety and aesthetics. The ordinance must fail if it unreasonably deprives property owners of the use of [52] their property. See Brae Burn, Inc v Bloomfield Hills, supra.

A municipality may make reasonable regulations on the use of signs. Wolverine Sign Works v Bloomfield Hills, 279 Mich 205 (1937). This includes limitations on size and height. See General Outdoor Advertising Co v Indianapolis, 202 Ind 85; 172 NE 309 (1930). The trial judge held that plaintiffs evidence proved that high-rise signs can be constructed with complete safety. This is unrebutted in the record, but we do not believe this establishes a prima facie case of unreasonableness.

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Sun Oil Co. v. City of Madison Heights, 199 N.W.2d 525, 41 Mich. App. 47, 56 A.L.R. 3d 1198, 1972 Mich. App. LEXIS 1277 (Mich. Ct. App. 1972).

199 N.W.2d 525 (Sun Oil Co. v. City of Madison Heights) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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Sun Oil Co. v. City of Madison Heights
199 N.W.2d 525 (Michigan Court of Appeals, 1972)