by Rachel Greifenkamp
(Federal 6th Circuit Court of Appeals, February 5, 2014)
Hucul Advertising, LLC applied for permission to construct a billboard in the Charter Township of Gaines, MI. The application was denied by the Township on the ground that the billboard would violate Chapter 17 of the Gaines Township Zoning Ordinance. At the time, the ordinance permitted billboards only on property that was adjacent to the M-6 highway, and Hucul’s property did not satisfy the adjacency requirement. Hucul Advertising then applied to build a digital billboard on the same property. That application was also denied, both because of the adjacency requirement, and because the proposed digital billboard would be located within 4,000 feet of another digital billboard, which would also be a violation of the ordinance. Hucul then applied to the Zoning Board of Appeals (“ZBA”) for relief seeking approval to install the digital billboard, which the ZBA denied. The Township later amended the ordinance to require that any proposed billboard be built within 100 feet of the M-6 and to clarify that, in order for a parcel to be “adjacent” to the M-6, it must “abut and have frontage on the M-6.”
Hucul challenged the ZBA decision claiming that the ordinance violated the First Amendment, claiming that the requirement of 4,000 feet between billboards is an impermissible restriction on commercial speech in violation of the First Amendment, that the Township treated land adjacent to public property differently from land adjacent to private property in violation of Equal Protection, and that Hucul’s civil rights by enforcing the ordinance. The Township removed the case from state court to federal district court. The district court held that the 4,000-foot spacing requirement constituted a valid “time place, and manner” restriction on speech and did not violate the First Amendment, and also dismissed the other claims.
The Sixth Circuit Court of Appeals agreed that the “time, place, and manner” test was appropriate in this situation. Hucul argued that the Central Hudson test for the regulation of commercial speech was the appropriate test; however, the Court recognized that the Township’s regulation did not distinguish between commercial and non-commercial billboards. in applying the “time, place and manner” test the Court affirmed that aesthetics and traffic safety are significant interests that warrant government regulation. The Court refused to invalidate the 4,000 foot spacing requirement, stating that just because state law would permit a lesser spacing requirement, evidence presented in district court supported a greater spacing for digital billboards because their increased visibility and changing copy make them greater distractions to motorists. Finally, the regulation leaves open ample alternative avenues of expression because the regulations do not prohibit handing out leaflets or public speech in this or other locations. The Court of Appeals affirmed the district court decision in favor of the Township.