Outdoor advertising company Hucul Advertising LLC applied for zoning approval from the Gaines Townships, Kent County, Michigan, to install a digital billboard. The Gaines Township Planning Director declined to issue the approval, stating that the property upon which Hucul intended to install the billboard was not eligible because of town ordinances requiring that a digital billboard be adjacent to an M-6 right-of-way, not within 4,000 feet of an eligible digital billboard.
Hucul appealed the decision to the Zoning Board of Appeals, challenging the Planning Director’s interpretation of “adjacent to” and his interpretation of the 4,000-foot spacing requirement. The ZBA upheld the Planning Director’s decision. Hucul filed an action in Kent County Circuit Court, arguing the ZBA’s decision was arbitrary, an abuse of discretion, and not based on competent, material, substantial evidence on the record, and that it was inconsistent with approvals given to other commercial billboard advertisers. Defendants successfully got the action removed to the Western District of Michigan, and this decision followed.
On the question of whether the Planning Director had improperly interpreted the phrase “adjacent to,” the court held that the challenge was moot, since the Township had since passed a resolution in April 2011 replacing the words “adjacent to” with “abut and have frontage on the M-6 right-of-way.” Since, under Michigan law, an applicant does not have a vested right unless he has a valid building permit and has completed substantial construction, the court held that there was nothing protecting Hucul from needing to adhere to the new zoning change.
However, even if the question hadn’t been moot, the court held that the Planning Director’s interpretation of the phrase adjacent to was reasonable. Hucul had argued it was improper because the ZBA had looked to another chapter of the zoning code for the definition of adjacent, because roadways such as M-6 rights-of-way are not parcels of property to which that chapter’s zoning definitions can apply, and because the interpretation was inconsistent with previous interpretations of the same ordinance. The court held that the “workable” definition of “adjacent to” located by the ZBA in another chapter of the zoning law was an acceptable interpretation of the billboard ordinance, and reasonable as applied to an M-6. Further, the court rejected Hucul’s examples of other billboards that had been more favorably treated by the Township, distinguishing them on the basis that they were all located on state-owned property which was intended to serve as part of an M-6 highway in the future.
Further, the Court rejected Hucul’s argument that the digital billboard spacing requirements were improperly applied. The ZBA had reasoned that, while the proposed billboard was not within 4,000 feet of an existing digital billboard, it was within 4,000 feet of a billboard which was subject to a consent judgment with the Township. Under the consent judgment, the billboard owner had the option, any time after the judgment was signed, to change its billboard from a static face to a digital billboard. The court agreed with the township that this gave the other billboard owner a vested right to install a digital billboard at any time over the duration of the consent judgment without needing additional permission from the Township. While a digital billboard did not yet exist at that location, the court upheld the Township’s reasoning that allowing Hucul to erect a digital billboard could cause both billboards to eventually be in noncompliance with the billboard laws, thwarting the intent of the billboard regulations.
The court further upheld the Township’s decision not to issue a variance to Hucul, and upheld the ZBA’s decision in full.
Hucul Advertising LLC v. Charter Township of Gaines, 2012 WL 1118638 (W.D. Mich. 4/2/12)