Posted by: Patricia Salkin | March 5, 2014

6th Circuit Court of Appeals Upholds Denial of Billboard Permit Where Signs Could Not Meet Size Limitations

International Outdoor, Inc., a billboard-advertising company applied for permission to erect eight billboards on various sites in the City of Southgate (“Southgate”), Michigan, that were adjacent to and visible from a highway. Southgate’s director of building inspections informed International Outdoor that its applications had been denied because the erection of billboards was prohibited by a local ordinance that establishes a blanket prohibition on billboard or off-premise signs. It advised International Outdoor that appealing to the Board of Zoning Appeals (“BZA”) would be fruitless because “any change or variance would require a change be brought about by the legislative process.”

International Outdoor commenced an action in state court, asserting that the ordinance violated the company’s First and Fourteenth Amendment rights and that Southgate had engaged in exclusionary zoning when it denied permission to construct the proposed billboards. Southgate removed the case to federal court. International Outdoor filed for summary judgment contending that the city’s ban violated its First and Fourteenth Amendment rights by favoring on-site commercial speech over off-site noncommercial speech.

In its cross-motion for summary judgment, Southgate asserted that International Outdoor had no standing because no matter what International Outdoor would still be prevented because the billboards would violate the height and size limitations by another provision in the ordinance. Southgate argued that because of this, International Outdoor’s injury was not redressable by the court and therefore lacked standing. The district court awarded summary judgment to Southgate, holding that because the proposed billboards would violate the height and size limitations, International Outdoor’s injuries would not be redressable even were a court to find the other section of the ordinance unconstitutional.

On appeal to the United States Court of Appeals, Sixth Circuit, International Outdoor argued that the district court erred when it concluded that the company’s injuries would not be redressable. International Outdoor did not contest that its proposed billboards would violate the height and size limitations. Instead, International Outdoor challenged the district court’s conclusion that the restriction applied to the billboards constructed in Southgate. In district court, they argued that at no point in the application process did Southgate invoke the language mentioning only the outright ban as a basis for denying the applications. To rebut this argument, they relied exclusively on an unpublished 1977 decision by the Michigan Court of Appeals, Central Advertising Co. v. City of Novi, No. 31153 (Mich. Ct. App. Sept. 14, 1977). International Outdoor argued that this case sets out a general principle for interpreting municipal ordinances. Specifically, regulations in municipal sign ordinances do not, as a matter of Michigan law, apply to signs that the ordinance prohibits.

The court stated that International Outdoor was correct that the interpretation of the Southgate sign ordinance was governed by Michigan’s rules of statutory construction.
Here, they must also look to Michigan’s rules of statutory interpretation to determine whether the size limitation applied to those signs prohibited by the ordinance.
However, the Central Advertising decision was unreported and had not been followed in almost 40 years. The Court’s conclusion to reject deference was supported by other recent decisions by the Michigan Supreme Court that made it clear, Central Advertising’s ruling that the ordinary “rules governing the construction of statutes apply with equal force to the interpretation of municipal ordinances.” One of the rules that govern the interpretation is: “If the statutory language is certain and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.”

Here, the court concluded that the language of the sign ordinance clearly and unambiguously indicated that the height and size restrictions set forth applied even to those signs barred by another section. The court reached this conclusion on the basis of the first sentence of § 1298.18(g): “Free-standing signs in any Commercial or Industrial District shall be not more than twenty feet in height nor more than 100 square feet in area on each side.” The district court interpreted this to mean that all free-standing signs, whether prohibited or permitted, must satisfy these height and size restrictions, and that the restriction therefore applied to International Outdoor’s proposed billboards because they qualified as “free-standing signs.”

Therefore, the court affirmed the judgment of the district court.

Int’l Outdoor, Inc. v. City of Southgate, 2014 WL 521173 (6th Cir. (MI) 2/10/2014)

The opinion can be accessed at:

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