Adams Outdoor Advertising v. East Lansing
| Decision Date | 27 March 1992 |
| Docket Number | O,No. 15,Docket Nos. 89026-89028,15 |
| Parties | ADAMS OUTDOOR ADVERTISING, a corporation, Plaintiff-Appellee, v. EAST LANSING, a Michigan municipal Corporation, Defendant-Appellant. and LITTLE CAESAR ENTERPRISES, INC., a corporation, Plaintiff-Appellee, v. EAST LANSING, a Michigan municipal Corporation, Defendant-Appellant. and BARYAMES CLEANERS, INC., a Michigan corporation and Denny's Schwinn, a Michigan corporation, Plaintiffs-Appellees, v. EAST LANSING, a Michigan municipal Corporation, Defendant-Appellant. Calendarctober, Term 1991. |
| Court | Michigan Supreme Court |
Fraser Trebilcock Davis & Foster, P.C. by Michael H. Perry, Lansing, for plaintiffs-appellees.
McGinty, Brown, Jakubiak, Frankland, Hitch & Henderson, P.C. by Thomas M. Hitch, Dennis E. McGinty, East Lansing, for defendant-appellant.
Bodman, Longley & Dahling by James J. Walsh, Detroit, for amicus curiae Outdoor Advertising Ass'n of Michigan.
In the instant case, we granted leave to appeal to consider the single issue whether the City of East Lansing has the statutory authority to enact and enforce its sign ordinance that eliminates nonconforming billboards and signs over a reasonable period of time. 1 The trial court granted plaintiffs' motion for partial summary disposition, reasoning that the city did not have the statutory authority to eliminate existing signs without compensating sign owners. The Court of Appeals affirmed. 2
On appeal, the city argues that M.C.L. Sec. 117.4i(5); M.S.A. Sec. 5.2082(5) gives it the statutory authority to forcibly terminate nonconforming billboards and signs over a reasonable period of time. We agree and reverse.
Before the adoption of the current sign code on October 7, 1975, the City of East Lansing regulated signs with respect to size, height, setback, and spacing in a number of the zoning districts pursuant to certain provisions of the zoning code. In most areas of the city, other than residential districts, signs were essentially unregulated except for minimal structural standards so that they would not fall down or blow over.
In the late 1960s, the city undertook a study of sign regulations and traffic ordinances after recognizing that the inordinate number of signs and billboards on the main thoroughfares were contributing to a number of traffic accidents, and were also aesthetically unattractive. In 1973, the city retained the services of Donald E. Cleveland, P.E., who prepared a report for the City of East Lansing Planning Commission recommending detailed standards with respect to height, size, placement, sign clearance, and setback of signs. 3 Dr. Cleveland suggested these improvements to avoid confusing or misleading traffic, to eliminate vision obstructions necessary for traffic safety, and to otherwise improve The city council eventually accepted the recommendation of the planning commission to adopt Dr. Cleveland's report and, as a first step, enacted ordinance no. 330. This ordinance prohibited the placement of new signs until the city completed the adoption of a comprehensive sign code. Two years later, the current sign code was adopted. In most situations, the new sign code did not require the elimination of existing billboards and signs within the city. The code did, however, require many sign owners to replace their existing signs and billboards that did not meet the height, size, placement, and location requirements of the new sign code within eight years. 4
the public safety along the city's major streets.
Each of the plaintiffs, and their individual signs, presents a different factual scenario. Plaintiff Adams Outdoor Advertising has three groups of signs located in East Lansing which did not conform with the sign code as of May 1, 1987. 5 These are off-premises signs, which means that they directed attention to a use, business, commodity, service, or activity not conducted, sold, or offered upon the premises where the signs were located. 6 Plaintiff Little Caesar Enterprises, Inc., owns a freestanding sign located near the front of its building, Baryames Cleaners has two freestanding signs identifying its business, and plaintiff Denny's Schwinn owns a freestanding sign and has two wall signs on its building. None of these signs meet the height, size, placement, or location requirements of East Lansing's sign code.
On or about February 27, 1987, the city notified the plaintiffs that they had to comply with the size, height, placement, and location requirements of the sign code or remove their nonconforming signs by May 1, 1987. Each of the plaintiffs applied for and were denied variances from the City of East Lansing Building Board of Appeals. The plaintiffs then sued defendant, seeking relief from the denial of their request for a variance. After defendant answered the complaints, plaintiffs moved for partial summary disposition on the theory that the city failed to state a valid defense. 7 Plaintiffs specifically argued that the amortization provision of the sign code, Sec. 8.39(8), was enacted without statutory authority. 8 The City of East Lansing predicated its statutory authority on M.C.L. Sec. 117.4i(5); M.S.A. Sec. 5.2082(5), 9 which empowers home rule cities with the authority to regulate billboards.
is so clearly untenable as a matter of law, that no factual development could deny plaintiffs right to recovery against this defense. City of Hazel Park [v Potter, 169 Mich App 714, 718; 426 NW2d 789 (1988) ]. The trial court properly granted plaintiffs partial summary disposition and dismissed that part of defendant's answer at issue." 10
We agree with the Court of Appeals that the resolution of this issue requires analysis of this Court's decision in De Mull, supra. However, we do not agree with the Court of Appeals determination that De Mull requires the decision it reached. Rather, we conclude that De Mull is distinguishable because this Court held that in amending the zoning enabling act 11 to provide statutory protection for nonconforming uses and structures, the Legislature did not intend to allow the elimination of such nonconforming uses or structures by an ordinance prescribing a time limitation. 12 We based our holding on an interpretation of the legislative history of 1947 P.A. 272, M.C.L. Sec. 125.583a; M.S.A. Sec. 5.2933(1). That section provides in pertinent part:
"The lawful use of land or a structure exactly as the land or structure existed at the time of the enactment of the ordinance affecting that land or structure, may be continued, except as otherwise provided in this act, although that use or structure does not conform with the ordinance." (Emphasis added.)
The De Mull Court found significant the fact that the original Senate bill would have allowed for the removal of nonconforming uses and structures over a reasonable period of time. Id. at 252. However, the Senate chose not to authorize amortization as an exception to the statutory protection of nonconforming uses and structures in the zoning enabling act after receiving an opinion from the Attorney General's office questioning the constitutionality of the amortization provision. Id. at 251-252, 118 N.W.2d 232. Thus, the De Mull Court held that there is no implied power under M.C.L. Sec. 125.583a; M.S.A. Sec. 5.2933(1) to eliminate over time nonconforming uses and structures.
The question that must be answered, then, is whether the Legislature, in enacting the home rule act, also intended to prevent the enactment of an ordinance that requires nonconforming signs to be made to conform or removed within a specified period of time. We conclude that the Legislature did not intend to limit the scope of the defendant's power to regulate billboards under the home rule act 13 to the same extent that a city's power to zone with respect to nonconforming uses and structures is restricted.
The plaintiffs argue, however, that this Court's holding in De Mull, that the Legislature did not authorize the amortization of nonconforming uses and structures under the zoning enabling act, controls the scope of a city's power to regulate signs, regardless of whether the regulation is pursuant to the zoning power or another arm of the police power. It is true that in De Mull we declined to infer a legislative authorization to amortize nonconforming uses and structures. However, our conclusion in De Mull was based on the legislative history of a provision of the zoning enabling act, and therefore cannot be used to restrict the scope of the defendant's power granted under a provision of a separate act, the home rule act. In De Mull, the statutory protection of nonconforming uses and structures, combined with the legislative history of that provision in the zoning enabling act, caused us to hold that there is no implied power to amortize in the This reading of De Mull, 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
zoning context. However, neither the home rule act, nor any...
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