CITY OF ALBION V CLK PROPERTIES LLC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
CITY OF ALBION,
UNPUBLISHED
July 14, 2011
Plaintiff-Appellee,
v
No. 298069
Calhoun Circuit Court
LC No. 2009-002156-CZ
CLK PROPERTIES, L.L.C.,
Defendant-Appellant,
and
BANK ONE MICHIGAN,
Defendant.
Before: SAAD, P.J., and JANSEN and DONOFRIO, JJ.
PER CURIAM.
Defendant CLK Properties, LLC (“defendant”)1 appeals as of right the trial court’s order
denying its motion for summary disposition and granting plaintiff City of Albion’s motion for
summary disposition in this dispute over application of a sign ordinance to require removal of an
empty sign frame from defendant’s property. Because plaintiff’s sign ordinance is a valid and
enforceable exercise of plaintiff’s police power under the home rule city act to which prior
nonconforming use analysis is inapposite, there is no dispute that defendant’s sign violates the
ordinance, and, because defendant did not establish the necessary elements of the affirmative
defense of laches, we affirm.
The facts underlying this appeal are not in dispute. On June 20, 2000, defendant
purchased commercial property located in the City of Albion. At the time of purchase, and at all
times since the purchase, the property has been vacant. Defendant’s efforts to sell or lease the
1
Bank One Michigan is the mortgagee of the property at issue and was originally named in
plaintiff’s complaint as a codefendant. However, Bank One was dismissed without prejudice
prior to service of the complaint and never appeared in this action. Therefore, the term
“defendant” refers solely to CLK Properties, LLC.
-1-
property have been unsuccessful. Plaintiff takes issue with a large sign from which the front and
back advertising panels have been removed that remains on the property. To be specific, the
record indicates that there actually are two sign frames on the property. The smaller of the two
appears customary in size and design for signs typically found along city streets. The second
sign frame is substantially larger. Defendant describes it as a “giant lighted edifice designed to
be seen from the nearby expressway.” The front and back panels have been removed from each
of the signs, leaving only the sign frames with attendant lighting fixtures and supporting polls in
place. But, plaintiff takes issue, apparently, with only the continued presence of the larger sign
frame.
In May 2002, plaintiff enacted a sign ordinance, section 64-21 which provides in
pertinent part:
(a) Abandoned signs. Any business sign or sign structure now or
hereafter existing which no longer advertises a bona fide business conducted or
product sold, or an abandoned sign, shall be removed at the expense of the
property owner within 120 days after the cessation of business. However, this
requirement shall not apply where under the provisions of this chapter an existing
conforming sign may be altered to advertise a new business or product sold and
the property owner has made a written request within said 120 days to the
planning department for a 90-day extension to finalize arrangements for the
establishment of a new business at said location. Prior to requesting said
extension, the property owner shall have removed or covered in an appropriate
manner the previously existing advertising sign copy. For the purpose of this
section, the word “removed” shall mean:
(1) All parts of a sign including columns and supports of any pole
sign or wall sign.
On or about September 8, 2008, plaintiff sent defendant a Notice of Sign Violation.
Defendant did not take any action, and on July 6, 2009, plaintiff filed the instant action seeking
removal of the sign.
The parties filed cross-motions for summary disposition. Plaintiff, relying on Adams
Outdoor Advertising v City of East Lansing, 439 Mich 209; 483 NW2d 38 (1992) (“Adams I”),
asserted that its sign ordinance constituted a valid and enforceable exercise of its police power
and that defendant’s sign was in plain violation of that ordinance. Defendant characterized the
sign ordinance as a zoning ordinance and asserted that the sign constituted a vested and valuable
prior nonconforming use. Defendant argued that Adams I is distinguishable from the instant case
because Adams I was premised on a provision in the home rule city act that permits cities to
regulate “billboards,” and the instant sign is not a “billboard” as that term is defined by any
Michigan statute. Defendant argued further that plaintiff had notice of the existence of the empty
sign frame on the property since before enactment of the sign ordinance and accordingly,
plaintiff was estopped, and/or barred by the doctrine of laches, from now seeking to enforce the
ordinance.
-2-
The trial court granted plaintiff’s motion for summary disposition ruling pursuant to
Adams I, that a city has the authority to enact a sign ordinance that includes a provision
eliminating nonconforming signs over a period of time. It further determined that the doctrine of
laches did not prohibit enforcement of the ordinance. The trial court ordered that defendant
remove the sign or otherwise bring the sign into conformance with the ordinance.
This Court reviews a trial court’s decision on a motion for summary disposition de novo
on the basis of the entire record to determine if the moving party is entitled to judgment as a
matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Statutory
interpretation also presents a question of law that this Court reviews de novo, Detroit v
Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008), as does the interpretation and
application of a municipal ordinance, City of Riverview v Sibley Limestone, 270 Mich App 627,
630; 716 NW2d 615 (2006). Likewise, a trial court’s decision regarding the equitable defense of
laches is reviewed de novo. Yankee Springs Twp v Fox, 264 Mich App 604, 611; 692 NW2d 728
(2004). However, any findings of fact supporting that decision are reviewed for clear error. Id.
“A decision is clearly erroneous where, although there is evidence to support it, the reviewing
court is left with a definite and firm conviction that a mistake has been made.” Kitchen v
Kitchen, 465 Mich 654, 661-662; 641 NW2d 245 (2002).
Defendant first argues that the trial court erred by failing to recognize that defendant’s
sign constitutes a valid prior nonconforming use, which may be continued pursuant to MCL
125.3208(1), despite plaintiff’s enactment of the sign ordinance. At the outset, defendant does
not assert that the enactment of the sign ordinance was beyond plaintiff’s authority, or that it was
invalid or irregular in any way. Instead, the issue raised is whether the sign ordinance is a zoning
ordinance, subject to well-established limitations on plaintiff’s zoning authority and permitting
the continuation of prior nonconforming uses, or whether the sign ordinance was enacted under
the authority afforded to plaintiff under the home rule city act such that nonconforming use
analysis is inapposite.
In Adams I, 439 Mich 211-212, 218-219, our Supreme Court specifically held that
Michigan cities have the authority under the home rule city act, MCL 117.1, et seq., to regulate
signage within their city limits. The Court also held that this authority permits a city to eliminate
nonconforming signs over a designated period of time. Id. at 219. The plaintiffs in Adams I
owned varying types of billboards and signs, located both on-premises and off-premises.2 After
their attempts to seek variances from the sign code were unsuccessful, the plaintiffs filed suit,
arguing that the amortization provision of the sign code was enacted without statutory authority.
Our Supreme Court held that enactment of the sign code, including the provision requiring
removal of nonconforming signs over a period of time, was a legitimate exercise of the city’s
2
Adams I identified off-premises signs as those signs advertising “a use, business, commodity,
service or activity not conducted, sold, or offered upon the premises where the signs were
located.” Adams I, 439 Mich at 213-214.
-3-
police power under the home rule city act, and specifically MCL 117.4i(f), 3 id. at 218-219,
which the Court noted “enables cities the authority to regulate signs and billboards in the interest
of the health, safety, and welfare of the community and to promote the aesthetic value of the
city,” id. at 218 n 14. Further, the Court explicitly stated that a city’s authority under the home
rule city act to regulate signs, including the authority to amortize nonconforming signs, is
“without limitation by the statutory protection of nonconforming uses under the zoning enabling
act . . . .” Id. at 219.
In a subsequent decision, Adams Outdoor Advertising v East Lansing, 463 Mich 17, 22;
614 NW2d 634 (2000) (“Adams II”), the Supreme Court acknowledged that Adams I established
that enactment of a sign code was a legitimate exercise of the city’s police power. The Court
then further observed that,
there is no issue regarding nonconforming use because nonconforming use
analysis only applies in the context of zoning regulations. Adams I held that the
sign code is not a zoning regulation, but a police power regulation in the interest
of public health and safety. Accordingly, nonconforming use analysis is
inapposite here. To understand this distinction (that nonconforming use analysis
applies only to zoning regulations and not to public health and safety regulations),
one need only consider the unprecedented handcuffing of the government that
would ensue if public health and safety regulations were subject to
nonconforming use analysis. This would leave governments powerless to
immediately terminate existing hazardous or dangerous activities because any
preexisting facility engaged in these activities would be able to claim
nonconforming use status and continue indefinitely in spite of the regulation. [Id.
at 22 n 2.]
Our Supreme Court’s decisions plainly establish that a sign code or ordinance is “a police
power regulation,” the enactment of which is within the authority afforded to a city by the home
rule city act, and that nonconforming use analysis is inapposite to the enforcement of such codes
or ordinances. Adams II, 463 Mich 22 n 2; Adams I, 439 Mich at 218-219. Accordingly,
plaintiff’s sign ordinance constitutes a valid and enforceable exercise of its police power, and
defendant’s assertion that it is entitled to maintain its sign as a prior nonconforming use lacks
merit.
Defendant argues that Adams I does not control the instant case because the home rule
city act only provides for the regulation of “billboards,” and thus, Adams I only addressed a
city’s authority to regulate off-premises signs. Defendant also points out that the home rule city
act does not define “billboard,” but that the term is defined under the Highway Advertising Act
3
At the time Adams I was decided, the relevant subsection of the home rule city act was
MCL § 117.4i(5). Subsequent legislative amendments relabeled, without altering, the pertinent
subsection as 4i(f). See Adams II, 463 Mich at 682. MCL 117.4i(f) allows a city to provide for
the “[l]icensing, regulating, restricting and limiting [of] the number and location of billboards
within the city.”
-4-
of 1972, MCL 252.302(r), as “a sign separate from a premises erected for the purpose of
advertising a product, event, person or subject not related to the premises on which the sign is
located.” Defendant specifically asserts that its sign does not meet the definition of a
“billboard,” and thus, it cannot be regulated under the city’s authority pursuant to the home rule
city act. Contrary to defendant’s argument, however, Adams I does not provide for any
difference in the existence or extent of a city’s authority to regulate on-premises and offpremises signs. As we acknowledged previously, the plaintiffs in Adams I owned varying types
of billboards and signs, located both on-premises and off-premises. The Court did not limit its
ruling in any manner to suggest that the sign code was authorized only insofar as it applied to
off-premises signs. Indeed, the Court specifically stated that the home rule city act, and
specifically MCL 117.4i(f), “enables cities the authority to regulate signs and billboards in the
interest of the health, safety, and welfare of the community and to promote the aesthetic value of
the city.” Adams I, 439 Mich at 218 n 14 (emphasis added).
Defendant next contends that the trial court erred by failing to apply the doctrine of
laches to bar plaintiff’s enforcement of the sign ordinance in this case. As this Court recently
explained in Attorney General v PowerPick Players’ Club of Mich, LLC, 287 Mich App 13, 51;
783 NW2d 515 (2010):
Laches is an affirmative defense primarily based on circumstances that
render it inequitable to grant relief to a dilatory plaintiff Yankee Springs Twp v
Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004). The doctrine of laches is
triggered by the plaintiff’s failure to do something that should have been done
under the circumstances or failure to claim or enforce a right at the proper time.
Schmude Oil Co v Omar Operating Co, 184 Mich App 574, 583; 458 NW2d 659
(1990). “The doctrine of laches is founded upon long inaction to assert a right,
attended by such intermediate change of conditions as renders it inequitable to
enforce the right.” Angeloff v Smith, 254 Mich 99, 101; 235 NW 823 (1931). But
“[i]t has long been held that the mere lapse of time will not, in itself, constitute
laches.” Dep’t of Treasury v Campbell, 107 Mich App 561, 570; 309 NW2d 668
(1981). “The defense, to be raised properly, must be accompanied by a finding
that the delay caused some prejudice to the party asserting laches and that it
would be inequitable to ignore the prejudice so created.” Id. The defendant bears
the burden of proving this resultant prejudice. Yankee Springs Twp, 264 Mich
App at 612.
Laches applies only when there has been both an unexcused or unexplained delay in
commencing an action and a corresponding change of material condition that results in prejudice
to a party. Dep’t of Pub Health v Rivergate Manor, 452 Mich 495, 507; 550 NW2d 515 (1996);
Wayne Co v Wayne Co Retirement Comm, 267 Mich App 230, 252; 704 NW2d 117 (2005).
Defendant argues that it will be prejudiced by the enforcement of plaintiff’s ordinance to
require removal of the sign. However, to support a defense of laches, defendant is required to
show harm arising from plaintiff’s delay in pursuing removal of the sign, and not merely harm
arising from the removal itself. Defendant has made no such showing. If anything, it could be
argued, based on defendant’s representations regarding the sign’s impact on the value and
marketability of the property, that the delay in enforcement actually aided defendant, by
-5-
affording it with substantial additional time in which to find a lessee or purchaser of the property
with the sign as an available feature. Defendant has not identified any action it has taken, or not
taken, in reliance on plaintiff’s lack of enforcement, nor any material change in its condition
resulting from plaintiff having not enforced its ordinance sooner. Consequently, there being no
prejudice arising to defendant from plaintiff’s delay in enforcement of the ordinance, laches does
not bar plaintiff’s claim. Attorney General, 287 Mich App at 51.
We affirm. Plaintiff, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
