Adams Outdoor Advertising, Inc v. City of Holland

Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________

C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

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.

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...)

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).

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).

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

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. ANALYSIS

A. 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

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).

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

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

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."

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.

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.

Adams Outdoor Advertising, Inc v. City of Holland

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