Posted by: Patricia Salkin | March 10, 2012

Fed. Dist. Court in Michigan Permits Billboard First Amendment Case to Proceed

In the City, Billboards are permitted as a special land use in the general industrial land use district.  In order to obtain authorization to erect a billboard, the interested party must submit a special land use application and obtain a permit.  The permit may be granted upon the discretion of the planning commission, after a public hearing.  In making this determination, the planning commission must establish whether the land us will: be harmonious and in accordance with the objectives of the master plan; be harmonious with the surrounding area; not be hazardous; improve the area; be served by public services; not create excessive public costs; and, be consistent with the zoning law.

CBS followed the required procedure and paid the requisite fees for a permit application.  The planning department reviewed the application and found it met or exceeded the requirements of the code.  However, following a public hearing, the application was denied by the planning commission, essentially finding it was not in accordance with the requirements previously mentioned.  Following this denial, CBS filed a claim against the City, asserting the permit application process constituted a facially unconstitutional prior restraint on free speech.

In addressing the sufficiency of the plaintiff’s claim of prior restraint, the court provided that “Regardless of whether the ordinance is content-based or content-neutral, it cannot place unduly broad discretion in the hands of a licensing official or agency to determine whether to grant or deny a permit.”  The complaint alleged that the City’s code gave the planning commission unbridled discretion in making their permit determination.  Accepting the allegations in the complaint to be true, the court found the pleadings were sufficient to constitute a valid claim upon which relief could be granted.  Thus, the Eastern District of Michigan denied the City’s motion for judgment on the pleadings.

CBS Outdoor v. City of Royal Oak, No. 11-13887, 2012 WL 527720 (U.S.D.C. E.D. Mich., 2/17/2012)

 The opinion can be accessed at: http://scholar.google.com/scholar_case?case=10301252336663722603&hl=en&as_sdt=2&as_vis=1&oi=scholarr.


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