ADAMS OUTDOOR ADVERTISING V CITY OF HOLLAND
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Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED MAY 1, 2001
ADAMS OUTDOOR ADVERTISING, INC.,
Plaintiff-Appellant,
v
No. 114919
CITY OF HOLLAND,
Defendant-Appellee.
___________________________________
BEFORE THE ENTIRE BENCH
KELLY, J.
The issue in this case is whether §§ 39-348(g) and 39
350(b) of defendant city of Holland's Zoning Ordinance No.
1100 are invalid under either the Michigan Home Rule City Act
(HRCA)1 or the Michigan City and Village Zoning Act (CVZA).2
The circuit court ruled in favor of plaintiff, Adams Outdoor
Advertising, Inc., holding the sections invalid. The Court of
Appeals reversed. 234 Mich App 681; 600 NW2d 339 (1999).
We hold that §§ 39-348(g) and 39-350(b) are valid because
defendant enacted them as part of its zoning ordinance under
the CVZA. Hence, the HRCA's provision authorizing cities to
regulate billboards in their charters, subsection 4i(f), need
not be considered. Also, whereas subsection 4i(c) provides to
a city the authority to exercise zoning powers, it is the
CVZA that furnishes the details of that exercise. It contains
specific restrictions on the city's authority to zone. Here,
because plaintiff failed to establish that the sections in
question completely ban billboards, the sections are not
invalid under the provisions of the CVZA.
Therefore, we
affirm the decision of the Court of Appeals.
I. FACTS AND PROCEDURAL BACKGROUND
Defendant is a municipal corporation organized under the
HRCA. Effective January 5, 1994, it enacted Ordinance No.
1100, which amended Article IX of its zoning ordinance and
1
MCL 117.1 et seq.; MSA 5.2071 et seq.
2
MCL 125.581 et seq.; MSA 5.2931 et seq.
2
covered numerous matters involving signs.3 It is undisputed
that, in enacting Ordinance No. 1100, defendant followed the
procedures set forth in the CVZA.4
The first of the two sections of the ordinance at the
center
of
this
dispute
provides
that
"[b]illboards
and
advertising signs are not permitted." The second states that
"[n]onconforming signs, billboards or advertising signs may
not be expanded, enlarged, or extended; however, said signs
may be maintained and repaired so as to continue the useful
life of the sign."5
3
Section 39-345 of Article IX states its intent and
purpose:
This Article is intended to protect and
further the health, safety, and welfare of the
residents of the City of Holland; to further the
intent of the City of Holland Zoning Ordinance and
its zoning districts; to prevent traffic hazards;
to provide safer conditions for pedestrians; to
improve community appearance; and to promote
economic
development
by
regulating
the
construction, alteration, repair, maintenance,
size, location and number of signs.
4
Ordinance No. 1100 was originally numbered § 39-152
through § 39-171. The sections in dispute were originally
codified as § 39-155(g) and § 39-157(b). In early 1996, the
entire ordinance was recodified as § 39-345 through § 39-364.
With the recodification, the two sections in dispute were
renumbered § 39-348(g) and § 39-350(b), respectively.
5
Section 39-346 of the ordinance defines "[b]illboard or
advertising sign" as "[a] sign which contains a message or
advertises an establishment, product, service, space or
(continued...)
3
In June of 1994, plaintiff applied to defendant for a
permit to construct a new billboard on a right of way in the
city. Defendant rejected the application, saying billboards
are not permitted, citing the first of the disputed sections,
§ 39-348(g). Plaintiff then sought a variance from the city of
Holland's Zoning Board of Appeals, without success.6
Thereafter, plaintiff filed the present suit in the
Allegan
Circuit
Court.7
In
its
first
amended
complaint,
plaintiff alleged that, because they forbade the erection of
billboards,
the
contested
sections
violated
the
HRCA.
Plaintiff alleged, also, that the sections violated § 12 of
the CVZA because they prohibited the establishment of a land
use. After a bench trial, the circuit court concluded that §§
5
(...continued)
activity not available on the lot on which the sign is
located."
6
In its cross application for leave to appeal, defendant
claims that, because plaintiff failed to present the zoning
board with certain information it had requested, its complaint
is not ripe. Given our disposition in this case today, we need
not reach the merits of the cross application.
7
Before filing this action, plaintiff sued in the United
States District Court for the Western District of Michigan,
challenging the ordinance under the First Amendment of the
United States Constitution, the Michigan Home Rule City Act,
and the Michigan City and Village Zoning Act. The court
abstained and dismissed the case without prejudice. 883 F Supp
207, 208, 210 (WD Mich, 1995).
4
39-348(g) and 39-350(b) violated both the HRCA and the
CVZA.8
Regarding the HRCA, the circuit court found that the
sections
had
"the
chilling
effect
of
eliminating
all
billboards over time," and that defendant had "failed to offer
sufficient
evidence
to
justify
such
a
stringent
zoning
regulation," its aesthetic concerns being "unpersuasive when
weighed against the gradual elimination of all billboards."
Regarding plaintiff's claims under the CVZA, the court
articulated the test set forth in Eveline Twp v H & D Trucking
Co, 181 Mich App 25; 448 NW2d 727 (1989).
It stated:
[Plaintiff] has met its Eveline burden. The
ordinance will result in the gradual elimination of
all billboards within Holland city limits. [Its]
billboards are an inexpensive and widespread method
to carry political, ideological, religious, public
service
and
editorial
messages
as
well
as
commercial
advertisements.
The
United
States
Supreme Court has recognized billboards as a viable
medium to publish political and social ideas and
messages to the public. Metromedia v City of San
Diego, 453 US 490; 101 S Ct 2882; 69 L Ed 2d 800
(1981).
[Defendant's]
goals
in
respect
to
the
residential zones, historic districts, and restored
business and commercial areas are laudable and
legitimate. However, the broad prohibition of the
zoning sign provisions appear [sic] to be a policy
8
Plaintiff's complaint also included a claim that the
Highway Advertising Act (HAA), MCL 252.301 et seq.; MSA
9.391(101) et seq., preempted defendant's ordinance. After an
adverse trial court ruling, plaintiff abandoned the claim on
appeal. See Singerman v Municipal Service Bureau, 211 Mich
App 678, 684; 536 NW2d 547 (1995), aff'd on other grounds 455
Mich 135; 565 NW2d 383 (1997).
5
and philosophical decision that are [sic] the
result of an impermissible fiat; a whimsical ipsi
[sic] dixit. See generally Kirk [v Tyrone Twp, 398
Mich 429; 247 NW2d 848 (1976).]
The court then enjoined defendant from enforcing the disputed
sections
but
left
intact
the
remaining
portions
of
the
ordinance.
On appeal, the Court of Appeals found that the lower
court had erred in concluding that the ordinance
sections
violated the HRCA and the CVZA. 234 Mich App 684. It reasoned
that the sections can be distinguished from those we declared
invalid in Central Advertising Co v Ann Arbor.
391 Mich 533,
536; 218 NW2d 27 (1974).
Also, the appellate court found that the trial court had
erroneously placed the burden of proof on defendant. Moreover,
plaintiff had failed to overcome its burden of showing that
the
ordinance
did
not
advance
a
legitimate
governmental
interest, given the aesthetic concerns underlying it.
Regarding § 12 of the CVZA, the Court of Appeals first
noted that other billboards existed in the city. Plaintiff's
evidence that it would be able to sell advertising space on
the proposed new billboards was insufficient to demonstrate
the requisite public need for them. 234 Mich App 698. The
appeals court found clearly erroneous the circuit court's
conclusion that plaintiff had met its burden of proving
6
illegal exclusionary zoning under § 12.
We granted plaintiff's application for leave to appeal,
held in abeyance defendant's application for cross-appeal, and
granted motions to file briefs amicus curiae. 461 Mich 994
(2000).
II. STANDARD OF REVIEW
Statutory
interpretation
and
the
applicability
of
a
statute are questions of law that this Court reviews de novo.
See Oakland Co Bd of Rd Comm'rs v Michigan Property & Casualty
Guaranty Ass'n, 456 Mich 590, 610; 575 NW2d 751 (1998); Alex
v Wildfong, 460 Mich 10, 21; 594 NW2d 469 (1999). We review
findings of fact using the clearly erroneous standard. See
Sands Appliance Services v Wilson, 463 Mich 231, 238; 615 NW2d
241 (2000); MCR 2.613(C).
III.
A.
ANALYSIS
The Home Rule City Act
Plaintiff asserts that subsection 4i(f) of the Home Rule
City Act invalidates §§ 39-348(g) and 39-350(b) of defendant's
zoning ordinance. Subsection 4i(f) provides:
Each city may provide in its charter for 1 or
more of the following:
* * *
(f) Licensing, regulating, restricting, and
limiting the number and locations of billboards
7
within the city. [MCL 117.4i(f); MSA 5.2082(f).9]
Plaintiff concludes that defendant's ordinance is violative of
subsection 4i(f) because the ordinance sections completely
prohibit billboards.
Plaintiff's argument fails to recognize the existence of
a city's zoning power independent of subsection 4i(f). The
sections involving billboards that plaintiff challenges are
found in defendant's zoning ordinance. Defendant enacted them
pursuant to and following the requirements set forth in the
CVZA.
Therefore, subsection 4i(f) of the HRCA, the provision
authorizing cities to regulate billboards in their charters
need not be considered. Cf., Adams Outdoor Advertising v East
Lansing, 439 Mich 209, 214; 483 NW2d 38 (1992).
While we do not consider whether the ordinance provisions
at issue were authorized by subsection 4i(f), the HRCA does
have some relevance to this case. That limited relevance is
best understood when one considers the history behind a city's
zoning authority.
As stated, the challenged provisions in the instant case
are part of the city of Holland's zoning code. Yet over eighty
years ago, this Court held that cities do not possess an
9
Although plaintiff cited the relevant subsection of the
HRCA as MCL 117.4i(5); MSA 5.2082(e), legislative amendments
have relabeled it subsection 4i(f).
8
inherent power to zone. See Clements v McCabe, 210 Mich 207,
216; 177 NW 722 (1920). In response to this Court's ruling in
Clements, the Legislature passed two acts: Act 207 and Act 348
of Public Acts of 1921, approved on May 17 and May 18, 1921,
respectively. The first, 1921 PA 207, the CVZA, established
the statutory zoning scheme in detail. This includes the
extent and limits of municipal zoning power and the procedures
under
which
municipalities
may
exercise
that
power.
The
second, 1921 PA 348, amended what is now subsection 4i(c) of
the HRCA, authorizing cities to provide themselves with zoning
powers in their charters. See Korash v Livonia, 388 Mich 737,
742; 202 NW2d 803 (1972).
Here, the city of Holland has included in its charter a
provision that grants itself the power to zone, as permitted
under subsection 4i(c) of the HRCA. Holland City Charter, §
2.1(10). Pursuant to it, defendant enacted the regulations at
issue as part of its zoning code. Therefore, the city of
Holland's power to enact its zoning code is derived from
subsection 4i(c) of the HRCA.
That fact notwithstanding, the HRCA's reference to zoning
was enacted as a complementary or companion act to the CVZA
for the purpose of correcting the deficiencies pointed out in
Clements. See Korash, supra at 742. Therefore, the reference
9
to zoning in the HRCA must be read in conjunction with the
CVZA. See id. at 744. More particularly, given that the CVZA
complements the HRCA by placing specific restrictions on
cities' zoning authority, the validity of defendant's zoning
ordinance provisions at issue must be analyzed under the CVZA.
See East Lansing, supra at 218, stating that "[t]he zoning
authority
under
the
[HRCA]
is
clearly
subject
to
many
restrictions, enumerated by the Legislature in the zoning
enabling act;" see also Saylor v Kingsley Area Emergency
Ambulance Service, 238 Mich App 592, 597; 607 NW2d 112 (1999).
B. The Exclusionary Zoning Claim Under the Zoning Enabling Act
Plaintiff
argues
that
defendant's
zoning
ordinance
violates § 12 of the CVZA. That section provides:
A zoning ordinance or zoning decision shall
not have the effect of totally prohibiting the
establishment of a land use within a city or
village in the presence of a demonstrated need for
that land use within either the city or village or
the surrounding area within the state, unless a
location within the city or village does not exist
where the use may be appropriately located or use
is unlawful. [MCL 125.592; MSA 5.2942.]
Accordingly, to sustain a claim that a city engaged in
unlawful exclusionary zoning under § 12 of the CVZA, one must
show that: (1) the challenged ordinance section has the effect
of totally prohibiting the establishment of the land use
sought within the city or village, (2) there is a demonstrated
10
need for the land use within either the city or village or the
surrounding area, (3) a location exists within the city or
village where the use would be appropriate, and (4) the use
would be lawful, otherwise.10
Regarding the first requirement, plaintiff asserts that
defendant's ordinance constitutes a complete prohibition of
billboards.
In
determining
whether
a
zoning
ordinance
constitutes a complete prohibition, a party must show that the
prohibition is city-wide in scope. See Fremont Twp, supra at
204, where no violation existed under MCL 125.297a; MSA
5.2963(27a) of the Township Zoning Act, unless the prohibition
was township-wide. See also Guy v Brandon Twp, 181 Mich App
775, 785; 450 NW2d 279 (1989); Mount Elliott Cemetery Ass'n v
City of Troy, 171 F3d 398, 407 (CA 6, 1999).
It is undisputed
that, when plaintiff sought permission without success to
erect
a
billboard
in
Holland,
a
significant
number
of
billboards already had been erected and were in use there.
Moreover, on its face, the challenged ordinance sections
do not currently completely prohibit billboards in Holland.
While
new
billboards
are
banned,
current
billboards
may
remain. Section 39-350(b) specifically permits a billboard
10
Defendant contends that billboards in general do not
constitute a "use" within the zoning context. Because of our
resolution in this case, we can assume without deciding that
billboards constitute such a "use."
11
owner to maintain and repair existing signs so as to continue
their useful life. Also, § 39-350(e) authorizes a billboard
owner to remove a sign from its location for repair and
maintenance and then to replace it.
Therefore, we hold that, although the ordinance sections
do limit the number of billboards within the city, they do not
constitute an impermissible total prohibition of billboards.
See Ann Arbor, supra;
Mount Elliott Cemetery Ass'n, supra at
407; Gustafson v City of Lake Angelus, 76 F3d 778, 790 (CA 6,
1996), cert den 519 US 823 (1996); Guy, supra at 785.11
Because plaintiff failed to show that the challenged
ordinance constitutes a total prohibition on the proposed use,
its exclusionary zoning claim must fail.
We need not discuss
the remaining requirements of an exclusionary zoning claim.
The Court of Appeals properly held that the trial court erred
when
it
concluded
that
plaintiff
had
met
its
burden
to
demonstrate exclusionary zoning under § 12 of the CVZA.
IV.
CONCLUSION
We hold that §§ 39-348(g) and 39-350(b) of defendant's
11
We note plaintiff's contention that, with the passage
of time, the ordinance might effectively eliminate all
billboards. If that eventuality arises, our opinion should not
be construed as foreclosing an "as applied" challenge to the
ordinance. However, we need not address that contention
because the present case involves a facial challenge to the
validity of the ordinance sections under consideration.
12
Zoning Ordinance No. 1100 are valid on their face under the
HRCA and CVZA. Because defendant enacted them under the CVZA
as
part
of
its
zoning
ordinances,
the
HRCA's
provision
authorizing cities to regulate billboards in their charters
need not be considered.
Additionally, plaintiff failed to establish that §§ 39
348(g) and 39-350(b) are invalid under the CVZA, because the
sections
do
not
constitute
a
complete
prohibition
of
billboards. Thus, we affirm the Court of Appeals decision that
vacated the circuit court's injunction precluding enforcement
of the challenged zoning ordinance provisions.
CORRIGAN , C.J., and CAVANAGH , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred with KELLY , J.
WEAVER, J., concurred in the result only.
13
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