ADAMS ADVERTISING, INC. v. City of Holland

• Decision Date: 29 June 1999
• Docket Number: Docket No. 208543.
• Citation: 600 N.W.2d 339,234 Mich. App. 681
• Parties: ADAMS OUTDOOR ADVERTISING, INC., Plaintiff-Appellee/Cross-Appellant, v. CITY OF HOLLAND, Defendant-Appellant/Cross-Appellee, Michigan Municipal League, Amicus Curiae.
• Court: Court of Appeal of Michigan — District of US

600 N.W.2d 339

234 Mich. App. 681

ADAMS OUTDOOR ADVERTISING, INC., Plaintiff-Appellee/Cross-Appellant, v. CITY OF HOLLAND, Defendant-Appellant/Cross-Appellee, Michigan Municipal League, Amicus Curiae.

Docket No. 208543.

Court of Appeals of Michigan.

Submitted February 9, 1999, at Grand Rapids.

Decided April 2, 1999, at 9:05 a.m.

Released for Publication June 29, 1999.

Bodman, Longley & Dahling LLP (by James J. Walsh and Michael J. Laramie), Detroit, for the plaintiff.

Andrew J. Mulder, City Attorney, and Ronald J. Vander Veen, Deputy City Attorney, Holland, for the defendant.

Secrest, Wardle, Lynch, Hampton, Truex and Morley (by Gerald A. Fisher and Thomas R. Schultz, amicus curiae, Farmington Hills, for Michigan Municipal League.

Before: WHITBECK, P.J., and MARK J. CAVANAGH and RICHARD ALLEN GRIFFIN, JJ.

RICHARD ALLEN GRIFFIN, J.

Defendant city of Holland appeals as of right a circuit court judgment declaring subsections 39-348(g) and 39-350(b) of Holland City Ordinance No. 1100 invalid as violative of the Michigan Home Rule City Act, M.C.L. § 117.1 et seq.; MSA 5.2071 et seq., and the Michigan zoning enabling act, M.C.L. § 125.581 et seq.; MSA 5.2931 et seq. The lower court's judgment also enjoined defendant city from enforcing those two subsections of the ordinance regarding billboards and also declared the offending portions severable, thereby not affecting the validity of the remainder of the ordinance. Plaintiff Adams Outdoor Advertising, Inc., cross appeals the ruling regarding severance.

In its opinion of October 8, 1997, the circuit court summarized its decision as follows:

The City's goals in respect to the residential zones, historical districts and restored era business and commercial areas are laudable and legitimate. However, the broad prohibition of the zoning sign provisions appear to be a policy and philosophical decision that are the result of an impermissible fiat; a whimsical ipsi [sic] dixit. See generally Kirk [v. Tyrone Twp.], 398 Mich. 429 [247 N.W.2d 848 (1976) ]. As such, this court rules that Holland City Ordinance 1100 is overly broad and invalid under the Michigan Home Rule [City] Act and the Michigan Zoning Enabling Act and enjoins the City's enforcement of this ordinance as to billboards. [Emphasis in original.]

We respectfully disagree and reverse. We hold that the sign ordinance is a valid exercise of defendant's legislative power and that the lower court erred in declaring the subsections invalid under the Home Rule City Act and the Michigan zoning enabling act. The injunction prohibiting the enforcement of the subsections is vacated. Plaintiff's cross appeal is dismissed as moot.

I

Defendant city of Holland is a municipal corporation organized under the Home Rule City Act. Effective January 5, 1994, defendant enacted Ordinance No. 1100 regarding signs. The intent and purpose of the sign ordinance are set forth in subsection 39.152(a):

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.

Defendant's sign ordinance was incorporated into defendant's preexisting zoning ordinance as article ten.

The provisions of defendant's sign ordinance that the lower court found invalid as violative of state law are subsection 39-348(g), originally enacted as subsection 39-155(g), and subsection 39-350(b), originally enacted as subsection 39-157(b):

Section 39-348. Sign prohibitions.

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(g) Billboards and advertising signs are not permitted.

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Section 39-350 Nonconforming signs, billboards or advertising signs.

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(b) Non-Conforming 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.

The ordinance defines "billboard or advertising sign" as "[a] sign which contains a message or advertises an establishment, product, service, space or activity not available on the lot on which the sign is located." (Section 39-153 as originally codified.)

Shortly after the enactment of defendant's ordinance, plaintiff filed suit in the United States District Court, Western District of Michigan, Southern Division, challenging the ordinance on the basis that it allegedly violated the First Amendment of the United States Constitution as well as the Michigan Home Rule City Act and the Michigan zoning enabling act. In an order and opinion dated April 21, 1995, the federal district court dismissed the case without prejudice ruling that "the court abstains from exercising its supplemental jurisdiction over the state law issues presented in this case because the relevant state law is uncertain and state court clarification might avoid a federal constitutional ruling." Thereafter, plaintiff filed the present action in the Allegan Circuit Court. Plaintiff's first amended complaint contained three counts challenging the ordinance as violative of (1) the Home Rule City Act, (2) the Michigan zoning enabling act, and (3) the Highway Advertising Act, M.C.L. § 252.301 et seq.; MSA 9.391(101) et seq. Although the circuit court dismissed count three after finding it to be without merit, plaintiff has not argued this issue on appeal and therefore has abandoned any claim under the Highway Advertising Act. Singerman v. Municipal Service Bureau, Inc., 211 Mich.App. 678, 684, 536 N.W.2d 547 (1995), aff'd. by equal division on other grounds 455 Mich. 135, 565 N.W.2d 383 (1997).

Finally, we note that there are no constitutional issues raised in plaintiff's circuit court complaint. Plaintiff asserts neither a taking issue¹ (U.S. Const., Ams. V and XIV; Const. 1963, art. 10, § 2) nor a First Amendment freedom of expression challenge.² (U.S. Const., Ams. I and XIV; Const. 1963, art. 1, § 5.) Accordingly, the scope of our decision is limited to whether defendant's sign ordinance is invalid as violating the law of the state of Michigan as set forth in the Home Rule City Act and the zoning enabling act.

II Home Rule City Act

In Detroit v. Walker, 445 Mich. 682, 687-690, 520 N.W.2d 135 (1994), our Supreme Court traced the history of municipal home rule in Michigan. Before the Constitution of 1908, the autonomy of city governments was substantially limited and restricted. Propelled by the resentment of state interference with local matters, the 1908 Constitution granted home rule cities broad autonomy. Thereafter, the Home Rule City Act³ was enacted to implement the shift in constitutional power recognized in the 1908 Constitution.

Our Constitution of 1963 continues the grant of broad power and authority to home rule cities. As recognized by the Supreme Court in Walker, at 689-690, 520 N.W.2d 135:

The Michigan Constitution provides that "[t]he provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor." Const. 1963, art. 7, § 34. It also provides that "[n]o enumeration of powers granted to cities and villages in this constitution shall limit or restrict the general grant of authority conferred by this section." Const. 1963, art. 7 § 22.

Accordingly, it is clear that home rule cities enjoy not only those powers specifically granted, but they may also exercise all powers not expressly denied. Home rule cities are empowered to form for themselves a plan of government suited to their unique needs and, upon local matters, exercise the treasured right of self-governance. See Const. 1963, art. 7, § 22.

Our municipal governance system has matured to one of general grant of rights and powers, subject only to certain enumerated restrictions instead of the earlier method of granting enumerated rights and powers definitely specified. The convention comment to the most recent amendment of the Michigan Constitution announces best the current relationship between municipalities and the state. It provides that "a revision of Sec. 21, Article VIII, of the present [1908] constitution reflects Michigan's successful experience with home rule." [Emphasis in original.]

The latest Supreme Court decision regarding the regulation of billboards is Adams Outdoor Advertising v. East Lansing, 439 Mich. 209, 483 N.W.2d 38 (1992). In Adams Outdoor Advertising, at 218, 483 N.W.2d 38 the Court reiterated the broad authority granted to home cities by the Home Rule City Act:

This reading of De Mull [v. City of Lowell, 368 Mich. 242, 118 N.W.2d 232 (1962) ], as not restricting a city's authority to regulate billboards under the home rule act, is also consistent with this Court's longstanding liberal interpretation of that act. We noted in Gallup v. Saginaw, 170 Mich. 195, 200, 135 N.W. 1060 (1912), that the home rule act is

"one of general grant of rights and powers, subject only to certain enumerated restrictions, instead of the former method of only granting enumerated rights and powers definitely specified. We must assume the act was passed with that intent and construe it accordingly."

In the present case, plaintiff's position regarding the Home Rule City Act is at odds with the Supreme Court's construction of the act. Plaintiff's argument begins and ends with the premise that the Home Rule City Act is not a general grant of authority but rather a limited grant of only those rights and powers expressly enumerated.

In particular, plaintiff claims that the ordinance violates subsection 4-i(f) of the Home Rule City Act, M.C.L. § 117.4i(f); MSA 5.2082(f), which provides as follows:

Sec. 4-i. Each city may in its charter provide:

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(f) For licensing, regulating, restricting, and limiting the number and locations

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