ZBA’s denial of variance for billboard did not constitute unlawful prior restraint

by Rachel Greifenkamp

International Outdoor, Inc. v City of Roseville
(Michigan Court of Appeals, May 1, 2014)

In the City of Roseville, Michigan International Outdoor, Inc. (IO) applied to erect a billboard 70 feet high, 672 square feet total, 365 feet from property that was zoned residential. Due to regulations on billboards within city limits, the Building Department denied the application. IO appealed the decision to the Zoning Board of Appeals (ZBA) who also denied the application. IO then appealed to the circuit court, challenging the constitutionality of the ordinances.  After the circuit court also found in favor of the City, IO appealed to the State of Michigan Court of Appeals.

IO argued that the ordinances of the City of Roseville constitute an unconstitutional prior restraint because the city has not applied the stated objective standards for billboards found in the ordinance in a consistent manner. It maintained that the ZBA has ignored or waived those objective standards on an ad hoc basis, and relies solely on subjective criteria such as “in harmony with the general purpose of the sign ordinance,” “injurious to the neighborhood,” and “detrimental to the public welfare” when denying billboard applications.  These criteria, IO argued, have been found in previous court cases to be insufficiently precise and therefore unconstitutional prior restraint. The city countered that the circuit court was correct when it found the regulations on their face to be narrow, objective, and definite,  and that IO’s proposed billboard did not meet the standards of those regulations.

After noting that IO’s challenge was to the application of the ordinances by the ZBA, the court noted the key holdings in previous prior restraint cases:

  • A licensing scheme that gives public officials the power to deny use of a forum in advance of actual expression is a prior restraint on First Amendment liberties.
  • Any system of prior restraints on expression bears a heavy presumption against its constitutional validity.
  • A law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority.
  • Moreover, a licensing law that places “unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.

Because IO could not meet the strict application of the narrow, objective, and definite terms of the city’s Sign Ordinance, it was required to present evidence that a variance from the ordinance was necessary; i.e., that a practical difficulty or unnecessary hardship existed. The record reflected that the ZBA applied this test in determining that a variance could not be granted.  the application of the test meant that the ZBA was not operating with unbridled discretion when it denied the variance.

Additionally, IO argued that commercial speech is protected under the First Amendment.  As such, any restriction or regulation must be advance a substantial government interest, and  the ordinance must be narrowly tailored to meet that interest. IO does not believe that it is narrowly tailored because the ZBA has the discretion to grant one request for a billboard otherwise restricted by the ordinance, but deny others. The court rejected this argument, noting that the stated purpose of the ordinance – “to protect the health, safety and welfare of the citizens of the City of Roseville, including but not limited to defining and regulating signs in order to promote aesthetics, to avoid danger from sign collapse and to regulate sign materials, avoid traffic hazards from sign locations and size, avoid visual blight and provide for the reasonable and orderly use of signs” – is a substantial governmental interest.  The court simply stated that IO provided “no relevant legal authority or factual support for its claim.

The circuit court’s decision in favor of the City of Roseville was affirmed.

Township ordinance regulating billboards passes constitutional challenges

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.

Warren, Michigan adult entertainment restrictions pass constitutional muster

by Melanie Thwing

Big Dipper Entm’t, L.L.C. v. City of Warren

(U.S. Court of Appeals Sixth Circuit, April 13 2011)

In 2006 the City of Warren, Michigan amended the city code to restrict the location of adult businesses. This was in an attempt to “halt property value deterioration,” “eliminate the causes of deterioration,” and “eliminate blight.” Before enacting this ordinance the City received and reviewed 49 studies and reports about secondary effects of adult businesses.

The City published a notice of intent to amend Section 14.01 of the City code, which again was to “prohibit the location of sexually oriented businesses within the boundaries of the Warren Downtown Development Authority.” A temporary ban on all new permits was enacted during the consideration of the proposed amendment.

Big Dipper Entertainment filed a petition to operate a topless bar one day prior to the ban going into effect. The city code specifies that the application must be acted upon within twenty days. The city clerk denied the application after twenty-four. Two years later in 2008 Big Dipper filed this U.S.C. § 1983 action in federal district court, arguing that Section 14.01 of the Warren City Code violates the First Amendment, and that the untimely rejection of the application acted as a prior restraint on protected expression. The district court granted summary judgment for the City and Big Dipper appealed to the Sixth Circuit.

Big dipper first argued that § 14.01 was an unconstitutional restriction on speech, and that the main purpose of § 14.01 was not to limit secondary effects but to prevent new adult businesses from opening. The Sixth Circuit noted that “the speech at issue here was that conveyed by a topless bar” and it is common sense to say that in a democracy “society’s interest in protecting this type of expression is of a wholly different, and lesser magnitude than the interest in untrammeled political debate.”  To satisfy its burden, the city need only show that its “predominate concerns were with the secondary effects” of adult businesses.  The city met this burden through the evidence provided in the collection of studies and reflected in the city council meeting minutes.

Also Big Dipper argued that the district court disregarded their expert’s analysis that showed that § 14.01 restricted locations to only ten potential sights from thirty-nine. The Sixth Circuit noted that Big Dipper did not raise this issue in district court, and that the burden to create a genuine issue of material fact falls to Big Dipper not the district court. Only two applications for adult businesses were filed in the five years leading up to the litigation. Even a reduction from thirty-nine potential sites to ten, as would be the result of § 14.01 still supplies almost thirteen times more sites than the five-year demand. This was “more than ample for constitutional purposes.” The decision of the district court was affirmed.

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