Dep't of Transp. v. Outfront Media, LLC

• Decision Date: 15 December 2022
• Docket Number: 357533
• Parties: DEPARTMENT OF TRANSPORTATION, Appellant, v. OUTFRONT MEDIA, LLC, Appellee.
• Court: Court of Appeal of Michigan (US)

DEPARTMENT OF TRANSPORTATION, Appellant,
v.
OUTFRONT MEDIA, LLC, Appellee.

No. 357533

Court of Appeals of Michigan

December 15, 2022

Ingham Circuit Court LC No. 20-000190-AA

Before: M. J. Kelly, P.J., and Shapiro and Patel, JJ.

Shapiro, J.

This case concerns the meaning of "location" in the following statutory provision of the Highway Advertising Act of 1972 (HAA), MCL 252.301 et seq.: "An interim permit shall not be used to erect a sign in a location where existing vegetation is greater than 8 feet tall or where existing vegetation was removed without the department's permission." MCL 252.307a(4). The issue, which is one of first impression, is whether "location" as used in MCL 252.307a(4) refers to the specific spot on the private property where a proposed billboard will be erected, or whether it includes the highway right of way such that the Michigan Department of Transportation (MDOT) may deny a permit for construction when there is existing vegetation greater than eight feet tall in the adjacent right of way. The circuit court affirmed the ALJ's ruling that MDOT may only deny an interim permit when there is such vegetation at the "exact physical location" of the proposed sign structure. For the reasons stated in this opinion, we reverse and hold that "location" as used in MCL 252.307a(4) includes the right of way.

I. BACKGROUND

The HAA "regulates and controls the size, lighting, and spacing of signs and sign structures in adjacent areas . . . ." MCL 252.304. An "adjacent area" extends outward from the edge of a right of way. See MCL 252.302(b). In effect, the HAA regulates signs on private property visible from a freeway, interstate or primary highway. See MCL 252.305. The stated purposes of the HAA includes "[t]o improve and enhance scenic beauty" and provides "that outdoor advertising is a legitimate accessory commercial use of private property, [and] is an integral part of the

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marketing function and an established segment of the economy of this state." MCL 252.303. MDOT is the agency responsible for administering the HAA. See MCL 252.302(f).

In 2007, the Legislature enacted a cap-and-trade system for signs pursuant to which on or after January 1, 2017, MDOT may not issue annual permits for new signs, but may issue "interim permit[s]" for construction of a new sign structure if a valid permit is surrendered and the old sign structure is removed. See MCL 252.307a(1)-(3). MCL 252.307a(4) outlines how an interim permit may be used and includes the following emphasized language that is at issue in this case:

An interim permit issued under this section shall only be utilized for the construction of a sign structure and shall remain in effect without expiration with fees renewed on an annual basis. A sign erected using an interim permit shall not be closer than 1,000 feet to another sign structure on the same side of the highway along interstate highways and freeways or closer than 500 feet to another sign structure on the same side of the highway along primary highways. An interim permit shall not be used to erect a sign in a location where existing vegetation is greater than 8 feet tall or where existing vegetation was removed without the department's permission. [MCL 252.307a(4) (emphasis added).]

"Location" is defined by the HAA as "a place where a sign structure subject to this act is located." MCL 252.302(s).

In October 2018, Outfront Media, LLC, surrendered two permits and submitted interim permit applications to erect a double-sided digital billboard on M-59 on property owned by Oakland Community College. After a site inspection, MDOT denied the permit applications on the basis that there was vegetation greater than eight feet in height within the "billboard viewing zone," such that a "viewing cone" for the billboard could be provided in accordance with MCL 252.311a(6).^[1] A MDOT report written after a subsequent inspection informed that MDOT had planted trees along the right of way adjacent to the proposed billboard and that it intended to maintain that existing vegetation. The report concluded that visibility of the proposed billboard would be blocked by the existing trees and vegetation in both directions.

The terms "billboard viewing zone" and "viewing cone" appear in MCL 252.311a, the section of the HAA governing permits to manage vegetation, i.e., permits that allow sign owners to trim or remove vegetation in the right of way so that the sign is visible from the roadway. A billboard viewing zone and viewing cone are statutorily defined areas within the right of way. See MCL 252.311a(18)(a) & (c). In short, the viewing zone is the area in which the viewing cone may be located. And the viewing cone is the area for which a permit to manage vegetation is issued to

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"provide for a minimum of 5 seconds of continuous, clear, and unobstructed view of the billboard face based on travel at the posted speed as measured from the point directly adjacent to the point of the billboard closest to the highway." MCL 252.311a(6). The following diagram provides a helpful visualization of these terms:

Image Omitted

Following MDOT's denial letter, Outfront requested a hearing before an ALJ and moved for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact). According to Outfront, “location” as used in MCL 252.307a(4) “means where the physical billboard is intended to be placed.” Under this interpretation, MDOT may not deny an interim permit on the basis of existing vegetation...