Category: Signs and billboards

Spacing restrictions on digital billboards do not violate First Amendment

by Rachel Greifenkamp

Hucul Advertising, LLC v. Charter Township of Gaines

(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.

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Addition of third support post did not cause billboard to lose nonconforming use status

by Rachel Greifenkamp

Lamar Central Outdoor, LLC v. State of Wisconsin Department of Transportation

(Wisconsin Court of Appeals, February 6, 2014)

Lamar Central Outdoor Advertising owns a sign located along Interstate highway 39/90/94 in the Town of Dekorra. On March 18, 1972 WIS. STAT. §84.30 became effective. This statute generally prohibits construction of signs along state or interstate highways subject to specified exceptions; however, because the sign in question was in existence before the statute was enacted it was granted nonconforming status. Section 84.30(5)(bm) also provides that if a lawful nonconforming sign is enlarged, replaced, relocated, or if additional signs are erected, the sign loses its lawful nonconforming status and is subject to removal. In November, 2010 the Wisconsin Department of Transportation (DOT) ordered Lamar to take down the sign because modifications had been made to the support structure. The DOT said that a third wooden support beam had been added to the sign along with several other modifications. The DOT argued that this modification constituted a substantial change to the structure, causing the sign to lose its legal nonconforming status.

The Division of Hearings and Appeals (DHA) heard the case and determined that the addition of the third wooden post constituted a substantial change but the other modifications did not. The DHA concluded that the sign had therefore lost its legal nonconforming status. A circuit court later reversed the decision made by the DHA because the addition of the third wooden post did not constitute a substantial change.  The DOT appealed the ruling and the Wisconsin Court of Appeals affirmed the circuit court ruling in favor of Lamar. The Court of Appeals decided that the support post constituted maintenance and repair because it did not enlarge or expand the sign, nor change the look or appearance of it, and did not exceed fifty percent of the replacement value of the sign.  “From all that we can glean from the record [the third post was] added to stabilize the sign structure, a maintenance and repair function.”  As a result, the sign did not lose its nonconforming status.

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BZA cannot condition permit on removal of nonconforming billboards when all criteria for granting permit are met

Gary Taylor

by Gary Taylor

Curry Investment Co., et al. v. Kansas City Board of Zoning Adjustment
(Missouri Court of Appeals, Western District, May 7, 2013)

On May 20, 2011, MLB Holdings filed an application with the Kansas City Board of Zoning Adjustment (BZA) requesting a special use permit to operate a pawn shop in Kansas City, Missouri. The landowner, Curry Investment Company, agreed to lease its building and parking lot to MLB.  The property where the building and parking lot are located contains two nonconforming outdoor advertising signs, which Curry Investment leases to CBS Outdoor. The BZA held a hearing on July 12, 2011, concerning MLB’s application. The BZA staff submitted a report at the hearing that cited the requisite special use permit criteria, and concluded that “all of these criteria are met with the proposed application.” The report also stated:

In recent years staff has had a general policy that as property is redeveloped,3 any existing billboards that are on the site are removed within five years of the approval of the development. The City Plan Commission has affirmed that position several times, specifically in the last several months . . . . Staff believes as part of the approval process for a pawn shop that this development be held to the same standard as other developments within other areas of the City.

Curry Investment opposed any condition that required removal of the signs. Ultimately, the BZA approved the special use permit subject to  conditions, including removal of the outdoor advertising signs. Curry Investment and MLB requested a rehearing. The BZA held a hearing on the request for rehearing, and the BZA thereafter denied a rehearing.

Curry appealed the BZA decision to circuit court, which found that the BZA’s decision to require removal of the two outdoor advertising signs for special use permit approval for the pawnshop was not supported by substantial and competent evidence, was unrelated to any impact generated by the pawnshop use at the property, and exceeded the BZA’s authority. The BZA then filed a notice of appeal to the Missouri court of appeals.

The BZA contended that its authority to require removal of nonconforming signs as a condition for a special use permit comes from its mandate to determine if a proposed special use complies with the standards of the Code, whether it is in the interest of the public convenience and will not have a significant adverse impact on the general welfare of the neighborhood or community, and whether it is compatible with the character of the surrounding area in terms of building scale and project design. The Court of Appeals disagreed.  The record reflected that the BZA staff examined all of the special use criteria set forth in the zoning code and concluded that “all of these criteria are met with the proposed application.” Therefore, the staff found the proposed pawn shop, in its proposed location: 1) to be in compliance with the standards of the Code, 2) to be in the interest of public convenience and to not have a significant adverse impact on the general welfare of the neighborhood or community, 3) to be compatible with the character of the surrounding area in terms of site planning and building scale and project design, 4) to be compatible with the character of the surrounding area in terms of operating characteristics, such as hours of operation, outdoor lighting, noise, and traffic generation, and 5) to not have a significant adverse impact on pedestrian safety or comfort. “While the BZA now contends otherwise on appeal, nothing in the record suggests that removal of the nonconforming outdoor advertising signs was related to any of the special use criteria set forth in the Code. To the contrary, the BZA staff stated that all of the special use criteria were met, but that sign removal was recommended based on a ‘general’ staff policy that as property is redeveloped, the removal of existing billboards is required….Once it was determined that the criteria for the special use permit were met, it was unreasonable to require removal of the nonconforming signs as a special use permit condition. While the BZA may want to foster a general policy that, as property is redeveloped, any existing billboards on a site are removed, where the BZA has proven no relation to sign removal with the special use criteria set forth in the zoning code, this policy is in contradiction to [the protection of] nonconforming signs.”

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Regulation of inflatable devices at car dealership withstands First Amendment scrutiny

by Kaitlin Heinen

PHN Motors, LLC v. Medina Township
(Federal 6th Circuit Court of Appeals, September 4, 2012)

PHN Motors  et al. in northeastern Ohio filed a complaint that Medina Township violated their First Amendment right to free expression, their Fifth Amendment rights under the Due Process clause, and their Fourteenth Amendment rights under the Equal Protection Clause. The complaint arose from the interpretation and enforcement of Medina Township Zoning Resolution (MTZR) § 603E, which prohibited PHN Motors from displaying inflatable devices at their car dealership in a commercial district of Medina Township.

PHN Motors displayed 27 inflatables owned and rented by Scherba Industries, Inc. and has been cited several times by the Medina Township Zoning Inspector in violation of MTZR § 603E as a result. PHN Motors claimed that MTZR § 603E is unconstitutionally vague and infringes upon their First Amendment free speech rights. They also alleged that the regulation was “unevenly” enforced because it was only sometimes enforced against PHN Motors and because it was enforced unequally between commercial and residential districts.

The district court ruled in favor of Medina Township on all claims, so PHN Motors appealed  to the U.S. 6th Circuit Court. They challenged the district court’s dismissal of its First Amendment claims, its finding that MTZR § 603E is not unconstitutionally vague thus not violating any due process rights, and its conclusion that Medina Township’s enforcement of MTZR § 603E does not violate any equal protection rights.

In regards to their First Amendment claim, PHN Motors argued that MTZR § 603E consists of a content-based regulation of both commercial and non-commercial speech, which violates the protections for free speech under the First Amendment. To the contrary, Medina Township argues that the regulation is content-neutral, and that PHN Motors’ speech is only commercial in nature. The U.S. 6th Circuit Court found the MTZR § 603E is a content-neutral restriction upon speech. More specifically, MTZR § 603E prohibits certain elements the may be added to signs in Medina Township, such as “elements which revolve, rotate, whirl, spin, or otherwise make use of motion to attract attention” as well as signs that “contain or consist of flags, banners, posters, pennants, ribbons, streamers, spinners, balloons, and/or  any inflatable devices, search light, or other similar moving devices.” Medina Township’s purpose behind the regulation is for an improvement in the aesthetics of the township’s commercial areas and to minimize motorist distractions that can potentially be a safety hazard for passing traffic. The 6th circuit court found that the regulation does not, on its face, regulate speech based upon its content. Additionally, the free speech in question is commercial in nature, which is expressly for the furtherance of economic interests. Even though PHN Motors counter-argues that many of the inflatables displayed depict holiday characters, the court found that they are used nonetheless as a brand-recognition tool, with the intent of attracting business. Commercial speech is provided a lesser protection by the Constitution, for which intermediate scrutiny is the appropriate standard of review to be applied. Intermediate scrutiny requires that the government restriction on speech be narrowly tailored to further a substantial governmental interest. Aesthetics and safety both can be considered substantial governmental interests. In regards to aesthetics, Medina Township has expressed a substantial need to clean up the appearance of its commercial areas. As for safety, minimizing distractions for passing motorists is also substantial. The objectives of MTZR § 603E are “reasonable” and “not more extensive than necessary.” So the regulation is a reasonable means to achieve the ends of improved aesthetics and increases motorist safety. A ban on inflatables is not more extensive than necessary to advance these interests then. In conclusion, no First Amendment violations occurred.

Addressing whether MTZR § 603E is unconstitutionally vague, the 6th circuit court  began with the presumption that local zoning ordinances are valid and applied the standard of whether or not a person of ordinary intelligence would be able to determine what conduct is regulated or prohibited. PHN Motors argues that MTZR § 603E implies that movement is necessary to prohibit the use of inflatables, and that the enforcement of this regulation is inconsistent because it is left solely to the Zoning Inspector, who is unsupervised and enforcement is left to her discretion. The 6th circuit court ruled that the regulation was not vague, confusing, ambiguous, or inconsistent. Rather, the legislative intent behind the regulation was clear in regards to its ban on inflatables, the enforcement of the regulation does not violate PHN Motors’ due process rights, and a person of ordinary intelligence would know that inflatables are prohibited by the plain language used in the regulation. Considering the multiple references to a ban on devices that employ movement and “as inflatables of the type displayed by BDK are soft and often move in even the slightest breeze,” it can reasonably be concluded that all inflatables are banned. As for the Zoning Inspector, she and Medina Township have consistently upheld that inflatables are banned and her enforcement of this is overseen by the Board of Zoning Appeals. All in all, the court concluded that MTZR § 603E is not unconsitutionally vague.

Lastly, the court addressed PHN Motors’ Equal Protection claim in regards to the enforcement of the ban in commercial areas, but not residential. The court found that PHN Motors did not provide adequate evidence that property residing in residential districts is similarly situated to property residing in commercial districts. Medina Township, however, showed that property zoned for residential use is different than property zoned for commercial use in that residential districts draw significantly less traffic compared to commercial districts and that commercial districts are visitors’ first impression of the town. As a result, Medina Township has a greater interest in regulating the aesthetics and safety of these areas. PHN Motors also failed to show that the differential treatment lacks a rational connection to a legitimate government interest. The Zoning Inspector even testified that she does not enforce the inflatable ban in residential areas because MTZR § 603E does prohibit them there, since they are not for purposes of advertisement on residential property. The court concluded that no Equal Protection violations happened.

The ruling of the district court was affirmed.

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Wisconsin county allowed to regulate billboards under general zoning authority, even when town specifically regulated billboards

Gary Taylor

by Victoria Heldt

Adams Outdoor Advertising, L.P., and Town of Madison v. County of Dane
(Wisconsin Court of Appeals, February 2, 2012)

Adams Outdoor Advertising, L.P. (Adams) wanted to construct a billboard on a highway located in the Town of Madison (Town) and within Dane County (County).  Adams obtained permits to build the billboard from the Town and from the Wisconsin Department of Transportation, but not from Dane County.  In order to clarify whether a permit from the County was also necessary, Adams brought a declaratory judgment action in circuit court.  The trial court concluded that the Town’s billboard ordinance preempts the County’s billboard ordinance, so a permit from the County was unnecessary.  The County appealed.

The Court analyzed the various layers of zoning laws governing the area in order to decide whether a billboard in the Town of Madison is subject to both the Town’s zoning ordinance regulating billboards and to Dane County’s similar ordinance.   The County claims it has the authority to regulate billboards pursuant to Wis. Stat. §59.69 (4), which is a broad, general county zoning enabling act.  Wis. Stat. §59.70 (22) is a more specific statute stating that the County has the authority to regulate billboards built next to highways that the County maintains.  Since the highway next to the billboard in question is maintained by the Town, it does not apply to this case.  Wis. Stat. § 60.23 (29) grants authority to the Town to regulate billboards located along highways maintained by the Town or by the County in which the town resides.  The Court identified two issues:  whether the Court has authority to regulate billboards under its general zoning authority (Wis. Stat. §59.69) and, if so, does a Town ordinance preempt any such authority.

Within Wis. Stat. §59.69 the County points to Section 4, which authorizes it to regulate “the location of buildings and structures.”  The Court looked to the Webster’s Dictionary definition of a structure as “something constructed or built…something made up of more or less interdependent elements or parts.”  It also cited the phrase “billboards and other similar structures” which can be found in several zoning statutes as evidence that a billboard is considered as structure.  The court confirmed that a billboard fit the definition of a structure.  Consequently, the County does indeed have the authority to regulate the construction and maintenance of billboards under Wis. Stat. §59.69.

As to the question of preemption, the Court concluded that the Town ordinance does not preempt the County ordinance.  It noted that the Town had indeed approved the County’s ordinance and, therefore, it was in effect within the Town’s boundaries.  Additionally, nothing within the Town’s ordinance explicitly prohibits County regulation of billboards.   Although preemptive languages does exist within the statutory scheme for regulating billboards, it applies only to ordinances pursuant to Wis Stat. §59.70(22).  Dane County draws its billboard regulation power from Wis. Stat. §59.69.  The Court concluded that the Town’s ordinance does not preempt the County’s ordinance and acknowledged that “the County and the Town share regulatory authority over billboards located on property that abuts the subject highway maintained by the Town.”

The Court addressed Adams’ main arguments and rejected them all.  First, Adams claims that the County does not have authority to regulate billboards under Wis. Stat. §59.69 because the statute makes no mention of signs or advertisement of any kind.  The Court referred to its previous discussion of the definition of a structure.  Next, Adams argues that, since Wis. Stat. §59.70 and Wis. Stat. § 60.23 are more specific to billboards, they should prevail over the general zoning enabling statutes.  The Court replied by noting that this rule of statutory construction normally applies when two statutes conflict.  Here, the two statutes do not conflict, but rather allow for shared regulatory authority.  Third, Adams purports that the County manipulated its general zoning ordinance in order to avoid regulating billboards under the more specific Wis Stat. §59.70.  The Court dismissed that claim for lack of evidence.  Lastly, Adams argued that “the County’s interest in promoting aesthetics is not sufficient to warrant its exercise of authority over billboards.”  In response, the Court notes that the statute provides more concerns than simply aesthetic concerns, mainly public health and the safety of structures.  The Court concluded that the County does have authority under Wis. Stat. §59.69 to regulate billboards and that the Town’s billboard regulation ordinance does not preempt that authority.  It reversed the circuit court’s decision and ruled in favor of Dane County.

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St. Louis’s definition of ‘sign’ unconstitutionally content-based

Gary Taylor

by Victoria Heldt and Gary Taylor

Neighborhood Enterprises, Inc.; Sanctuary in the Ordinary; Jim Roos v. City of St. Louis; St. Louis Board of Adjustment
(Federal 8th Circuit Court of Appeals, July 13, 2011)

Neighborhood Enterprises manages the properties of Sanctuary in the Ordinary (SITO), a non-profit organization working with rental properties in St. Louis.  Jim Roos, the founder of both organizations, is involved in the Missouri Eminent Domain Abuse Coalition (MEDAC).  Roos and MEDAC commissioned a sign/mural to be placed on the side of a SITO-owned building.  The sign mural/ was approximately 363 square feet in area and was visible from Interstates 44 and 55.  It read “End Eminent Domain Abuse” inside a red circle with a slash through it.  The sign was similar to the design MEDAC uses in other literature [NOTE: The city of St. Louis had previously condemned 24 buildings owned either by SITO or Neighborhood Enterprises for a private development project] .

In April 2007, the City’s Division of Building and Inspection issued a citation for an “illegal sign” and declared that a permit was required for the sign to be in compliance.  SITO applied and was denied the permit because the sign was painted on a building that was zoned “D” or “Multiple Family Dwelling,” where signs are limited to a maximum 30 square feet, and also because the wall face did not have street frontage and therefore was not allowed to have signage.  SITO appealed to the Board of Adjustment and countered that the sign was, in fact, a “work of art” not required to meet the zoning code’s definition of “sign.” The City justified the requirements in its Zoning Code on concerns for traffic safety and aesthetics.  The Board upheld the zoning administrator’s denial on July 2007.  SITO appealed.

In district court SITO argued, among other things, that the zoning regulations were invalid and unconstitutional pursuant to the First and Fourteenth Amendments to the U.S. Constitution, and as such the Board’s decision should be reversed. The district court granted summary judgment in favor of the City and the Board, finding the zoning regulations were not in violation of the U.S. Constitution and that the Board’s decision was not arbitrary, capricious, unreasonable, unlawful or in excess of the Board’s jurisdiction.  SITO appealed this decision to the 8th Circuit.

On appeal, the 8th Circuit first looked to the issue of standing.  The City and Board argued that SITO only has standing to challenge the provisions within the Zoning Code that were actually applied to the decision to deny the sign permit.  It claimed that SITO could not “show a causal connection between its purported injury and the provisions of the zoning code not applied to it.”  The Court found that SITO had standing to challenge the clauses that were cited in the denial of the permit.  Additionally, it could challenge the sections of the Code that defined a sign and the scope of signs allowed.

SITO’s free speech claim was grounded in the belief that the sign regulations were “riddled with content-based exemptions and restrictions.”  Furthermore, traffic safety and aesthetics were not previously considered “compelling” interests of the government.  The Court found that the Code’s definition of a sign was unconstitutionally content-based because “the message conveyed determines whether the speech is subject to the restriction.”  If a sign/mural of the exact same dimensions and at the same location contained a symbol or crest, or if it were a national, state, religious, fraternal, professional or civic symbol it would not be subject to the city’s regulation.  The Court also found that while the regulations may generally promote aesthetics and traffic safety, the city failed to show how the distinctions between exempt and non-exempt signs found in the code further those goals. The court further held that the code’s exemptions are not narrowly tailored to accomplish goals of traffic safety or aesthetics which, “while significant, have never been held to be ‘compelling’ government interests.

The Court determined the regulation’s definition of a sign to be a violation of the First Amendment but could not rule on whether those clauses could be effectively separated from the Code since the district court never addressed the issue.  It reversed the decision and remanded the case in order for the district court to rule on that matter.

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Township ordinance regulating billboards passes constitutional challenges

Gary Taylor

by Victoria Heldt

Township of Blair v. Lamar OCI North Corporation
(Michigan Court of Appeals, October 27, 2010)

Lamar OCI North Corporation (Lamar) leases property along US highway 31 on which it maintains commercial billboards.  Ordinances in the Blair Township Zoning Ordinance (BTZPO), passed in 2005, prohibit billboards exceeding 300 square feet in area, 30 feet in height, and closer than 2,640 feet to another billboard.  One of Lamar’s billboards was in violation of all three of those stipulations, but was allowed as a nonconforming use since it was constructed before the relevant ordinances in BTZPO were passed.  In 2005, Lamar removed a portion of the sign and installed an LED display face on the remaining portion of the board.  This action brought the sign in compliance with the area and height requirements, yet it still violated the distance requirement.

The Township filed suit in district court claiming that the sign constituted a nuisance and Lamar countered with a claim that the spacing requirement between signs violated the First Amendment.  The district court ruled in favor of the Township, but found a portion of the governing ordinance invalid under the First Amendment due to vagueness and removed it.  The court ordered the removal of the billboard unless it appealed the ruling, in which case it could remain until the resolution of the appeal.

On appeal, Lamar first argued that Michigan law prohibited the Township from disallowing modifications to nonconforming uses if they reduce the nonconformity.  The Court acknowledged that the Township has authority to regulate billboards under Article 20 under the BTZO.  Specifically, the Township governs nonconforming uses under Section 20.08 which states that the ordinance may not prohibit alterations to the nonconforming use unless the cost of the alterations exceeds 30% of the cost to replace the sign.   The Court noted that Lamar’s argument was invalid, since it cited cases that were not factually similar.   The changes to Lamar’s sign exceeded 30% of the cost of replacement, so the BTZO had authority to prohibit them.  Lamar failed to show that the trial court lacked authority to eliminate the nuisance.

Lamar next claimed that, since one sentence of the governing ordinance was stricken due to vagueness, the district court should not have been able to find them in violation of the ordinance.  The sentence removed read:  “If the face, supports, or other parts of a nonconforming sign or billboard is structurally changed, altered, or substituted in a manner that reduces the nonconformity, the Zoning Administrator may approve the change.”  The trial court ruled that the phrase gave unbridled and vague authority to the Zoning Administrator.  The Court found that the sentence was able to be removed without altering the goal or effectiveness of the ordinance.  Another question the Court asked itself was whether the ordinance would have been passed in the first place had it been known that the sentence would be stricken.  They found that it would, so the removal of the sentence did not render the clause ineffective.  Lamar claimed that the Court should have eliminated the need for permission from the Zoning Administrator to solve the problem and retain the ability to reduce nonconformities; i.e., that requiring permission constituted prior restraint of speech.  They based their argument on Shuttlesworth v. Birmingham in which the Court ruled against an ordinance requiring a permit to protest.  The Court rejected Lamar’s argument, stating that Shuttlesworth did not apply to the facts in this case because the Township was not trying to restrict the content of the speech.

Lastly, Lamar challenged the constitutionality of the distance requirement found in the ordinance.  The Township claimed the requirement was in place to “enhance the aesthetic desirability of the environment and reduce hazards to life and property in the township.”  When analyzing restrictions on free speech, the Court considers four factors:  1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading.  A restriction on otherwise protected commercial speech is valid only if it;  2) seeks to implement a substantial governmental interest; 3) directly advances that interest; and 4) reaches no further than necessary to accomplish the given objective.  In this case, the Court found that lawful commercial speech was involved and that “promoting aesthetic desirability of the environment and reducing hazards to life and property in Blair Township are of substantial governmental interest.”  It also found that the ordinances also passed the last two factors of the four-pronged test.  Consequently, the Court affirmed the trial court’s decision.

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Redetermination of high water mark does not invalidate previous permit

by Melanie Thwing

Oneida County v. Collins Outdoor Advertising
(Wisconsin Court of Appeals, April 26, 2001)

Collins Outdoor Advertising began looking into constructing a billboard in the Town of Sugar Camp, Wisconsin in 2003. The Town of Sugar Camp is generally un-zoned, but Oneida County has zoning authority over land within 1,000 feet of the ordinary high water marks of navigable lakes. In this particular area there are two lakes, Jennie Webber Lake and an unnamed lake 34-16.

Keith Carson, a Collins’ employee, obtained a lease from the landowners of the desired location. A signature was given from the Town’s foreman stating the land was un-zoned and the Department of Transportation (DOT) approved a permit application. The DOT also instructed Carson to check with the Department of Natural Resources (DNR) because the land boarded a swamp. The DNR approved the site but then instructed Carson to check with the County to make sure no zoning authority existed.

After meeting with Theresa Kennedy, a permit specialist for the County, and looking at several zoning maps and aerial photographs it was determined the location would not pose a problem with Jennie Webber Lake. It was Carson’s responsibility however to determine the distance from 34-16 which he did with a handheld GPS. This also met the 1,000 foot requirement.

In July 2003 the billboard was erected. Then, in October the County sent a letter indicating there had been complaints that the sign was illegally constructed. This letter referenced a “large wetland complex” attached to Jennie Webber Lake and stated that, when taking these wetlands into account, the sign was only 10 feet from the high water mark.  Collins responded to this complaint in January of 2004 with a letter reciting the above facts.  The County did not respond again until September 2006.  The County stated it had re-determined the high water mark and, as a result, had determined that the sign was 600 feet away from Jennie Webber Lake.  In August 2008 the County filed for injunctive relief and damages in the circuit court. Summary judgment was granted in favor of the County. Collins was ordered to remove the sign and pay $25,000 in forfeitures.

Collins appealed to the Wisconsin Court of Appeals, arguing that when the sign was originally constructed the County’s zoning map identified the shorelines and any redeterminations cannot render the sign unlawful.

Under Wis. Stat. § 59.692(1m),(6) the state is required to adopt and enforce shoreland zoning ordinances. Each county is required to include “[m]apped zoning districts and the recording, on an official copy of such map, of all district boundary amendments.” Wis. Admin. Code § NR 115.05(4)(i). Also the DNR must be given notice for any interpretation of a map or amendment.  The County argued that it was unreasonable for Carson to rely on the zoning map rather than on-site measurements; however the Court rejected this argument.  The Court of Appeals observed that if Carson had determined the measurements of high water mark himself they would have no legal force. The ordinance does not give landowners authority to determine high water marks. That burden is placed on the County and DNR to set ordinary high water mark.  This determination can be very subjective. 

The County’s argument that “[t]he standards for such determinations are clearly set forth in the ordinance,” was found to be unpersuasive.  The County’s argument would require landowners to roam large portions of private property to identify the correct high water marks. Carson followed the ordinance by contacting the zoning department who ultimately provided the map for determination.

Finally there is no conflict between the zoning map and the zoning ordinance. Ordinary high water marks are usually identified on official maps or on aerial photographs. If the public were not allowed to put any reliance on the maps, the Court questions why they are required or why the DNR must be contacted when a question arises about the maps.

It is undisputed that at the time the sign was built it was over 1,000 feet from the shoreline as then determined, and the County does not dispute that the sign would be legal as an existing nonconforming structure using that determination. The decision of the circuit court was reversed and remanded.

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City fails to demonstrate rational basis for prohibition of billboard extensions

by Melanie Thwing

Clear Channel Outdoor v. City of St. Paul
(Federal 8th Circuit Court of Appeals, August 25, 2010)

Clear Channel Outdoor has owned and operated billboards in the City of St. Paul, MN since 1925. They regularly use billboard extensions when the customer’s needs require them. In St. Paul billboards until November 2000 were regulated with the zoning code, but were allowed. Then St. Paul, Minnesota Code §64.420 was passed which does not allow for any new billboards to be constructed. Effectively, the standing billboards were allowed as nonconforming uses. St. Paul Code §66.301(g) at the time still regulated the size and length of time for all extensions.

Then in March 2005 concerns about billboard extensions were brought to the city’s Planning Commission. The options of banning extensions altogether and allowing extensions through a permiting process were both discussed.  A resolution in support of the permitting scheme was ultimately adopted and transmitted to the city council. 

In August 2005 at a public hearing the City Council discussed the billboard extension issue, but laid the discussion over until November. During this time the Planning commission again took up the issue and again rejected the outright prohibition of billboard extensions.  Dispite this, in March 2006 the City Council adopted Ordinance 06-160, which prohibited all billboard extensions. The minutes did not reflect any discussion of costs or benefits of the ordinance.

Clear Channel filed a complaint in federal district court claiming (1) unconstitutional and unreasonable use of police power and (2) violation of Clear Channel’s due process and equal protection laws. After two years of mediation the parties were not able to reach an agreement. In January 2009 the district court ultimately found the ordinance arbitrary and capricious and therefore void because no rationale for the City Council’s decision was presented.

The City appealed the district court decision to the 8th Circuit Court of Appeals, arguing that the district court applied the wrong standard. Honn v. City of Coon Rapids was the precedent cited by the district court. Honn declares, “…[t]he municipal body need not necessarily prepare formal findings of fact, but it must, at a minimum, have the reasons for its decision recorded or reduced to writing and in more than just a conclusory fashion…” Clear Channel countered that the city was originally in favor of using the Honn standard, and originally argued it was controlling.

The 8th Circuit agreed with Clear Channel’s argument, citing specific instances where the city said Honn was controlling. Also, the 8th Circuit concurred that Honn was applicable because the procedure it announced should be followed in ‘any zoning matter, whether legislative or quasi-judicial…” Honn has legislative authority fromMinn. Stat. §462.357, subd 1, which gives a municipality the authority to regulate buildings and structures, which is the core of this case. It is concluded that Honn is applicable.

Secondly, the city argues that even if Honn is applicable, the district court was in err because it did not allow a trial that would have allowed the City to demonstrate the rational basis for its decision. The 8th Circuit noted, however, that the City had assured the district court that the record was complete and that a decision could be made. Honn does state that a trial may be allowed, but not required.  A trial is not made available simply “…to provide local governments with a routinized opportunity for a second bite at the apple by neglecting to provide and adequate record for review.” As long as the record is complete, as was the case here, no trial is necessary. The City failed to prove a rational basis for the ordinance prohibiting billboard extensions in any documents provided. The court refused to remand the case and affirmed the district court decision.

Due Process, Federal courts, Signs and billboards , , ,
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Sign company had no vested right to have permit processed under old ordinance

by Melanie Thwing

Lamar v. City of Kansas City
(Missouri Court of Appeals, November 9, 2010)

In September 2007, the City Council of Kansas City, Missouri passed an amendment to its code of ordinances.  The amendment prohibited outdoor signs with “revolving, moving, flashing, blinking, or animated characteristics.”  The amendment also provided that until the amendment went into effect no permits for altering outdoor signs were to be approved.  

Lamar had filed a permit application with the city two days before the enactment of the ordinance.  Because of the pending ordinance city staff refused to process Lamar’s application until after the ordinance was passed. In district court Lamar argued that the permits should have been processed immediately based on the ordinances that were in effect at the time of application.  The district court disagreed and summary judgment was granted to the City. Lamar appealed to the Court of Appeals.

The court looked to previous rulings which held that “the mere filing of an application gave the applicant no vested right under the old ordinance.” From these the court holds that just filing an application is not enough to provide a vested right. Rather, the owner “must have reasonably relied upon a belief that the existing law would continue to be in force.” This requires not only a reliance on the continuation of the ordinance, but also a reasonable belief.

The Missouri Court of Appeals ultimately held that Lamar had no vested right to have its permit processed under the old ordinancem and dismissed the case.

Missouri Courts, Signs and billboards, Vested Rights , ,
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