King Enterprises, Inc. v. Thomas Township
Decision Date | 24 July 2002 |
Docket Number | No. 01-10242-BC.,01-10242-BC. |
Citation | 215 F.Supp.2d 891 |
Parties | KING ENTERPRISES, INC., d/b/a Stanley Steamer Carpet Cleaner, a Michigan Corporation, Richard King, individually, C.T. Leasing Company, a Michigan Corporation, Martin Chevrolet Sales, Inc., a Michigan Corporation, William Martin, individually, A.T. Frank Company, Inc, a Michigan Corporation, Ward Building Products, Inc., a Michigan Corporation, Self Serve Lumber Company, a Michigan Corporation, D.W.S. Inc., d/b/a Dale Stroebel's Complete Automotive Service, a Michigan Corporation, Debut Coach Company, Inc., d/b/a Debut Automotive Design, a Michigan Corporation, R & D, Inc., d/b/a Tuffy Auto Service Centers, a Michigan Corporation, Old Tyme Roadhouse, Inc., d/b/a Old Tyme Roadhouse, a Michigan Corporation, Coco Investments, L.L.C., a Limited Liability Company, Jack's Fruit Market, Inc., a Michigan Corporation, K.J. Properties, L.L.C., d/b/a Cornerstone Center, a Limited Liability Company, Craig S. Bye, Sr., individually, Redmond Automotive, Inc., a Michigan Corporation, JWP, Inc., a Michigan Corporation, Duclos Insurance Agency, Inc., a Michigan Corporation, David Duclos, and Bonnie Duclos, husband and wife, and Azimuth Investments, Inc., Plaintiffs, v. THOMAS TOWNSHIP, a general law Township, Defendant. |
Court | U.S. District Court — Eastern District of Michigan |
Robert C. Miller, Shinners & Cook, Saginaw, MI, for plaintiffs.
Otto W. Brandt, Jr., Saginaw, MI, for defendant.
In 1999, the defendant, Thomas Township, enacted a comprehensive ordinance which was intended to regulate "the construction, alteration, repair, maintenance, size, location, and number of signs" that property owners may construct or display on their land within each of five zoning districts in the Township. Thomas Township Ordinance 99-G-18 § 13-1-1 ") ". The plaintiffs, who include business owners and operators and residents of the Township, contend that the ordinance impermissibly regulates the content of the signs and constitutes a prior restraint on speech in violation of the First Amendment, and they have filed an amended complaint seeking a permanent injunction preventing enforcement of the ordinance. The parties have submitted a joint stipulation of facts, and based thereon the plaintiffs filed a motion for summary judgment. The parties presented their arguments through counsel in open court on December 17, 2001 and the matter is now ready for decision. The Court finds that although some of the sections of the ordinance are valid, many of the ordinance's provisions impermissibly regulate the content of protected speech, and also constitutes an unlawful prior restraint on expression, and is therefore repugnant to the First Amendment of the Constitution. The Court therefore will grant the plaintiffs' motion for summary judgment in part, sever the non-offending sections of the ordinance, and enjoin enforcement of the balance of the ordinance.
The sign ordinance was adopted by the Thomas Township Board in October 1999 after approximately sixteen months of study, according to Daniel Sika, the Thomas Township Community Development Director. Aff. of D. Sika ¶ 5. Motivated primarily by concerns of public safety, aesthetics and economic development, the township board and planning commission set about the task of regulating exterior signage in accordance with the enabling authority granted to them by the General Township Police Power Act, Mich. Comp.Laws § 41.181. The ordinance which resulted from their effort creates a comprehensive scheme that covers virtually every outdoor sign in the Township, see Ord. § 13-1-2(B) (), and applies to "all persons, firms, partnerships, associations, and corporations owning, occupying or having control or management of any premises located within Thomas Township, Saginaw County, Michigan." Ord. § 13-1-2(C).
The ordinance defines a "sign" as
any device, structure, fixture, placard, name, identification, display or illustration using graphics, symbols or written copy which is affixed to or represented directly or indirectly upon a building, structure or piece of land and which is intended to direct attention to, advertise or identify an object, product, place, goods, services, activity, person, institution, organization or business. However, a "sign" shall not include any display of official court or public office notices nor shall it include the flag of any political unit or school. A "sign" shall not include a sign located completely within an enclosed building. A pole, frame or structure used to hold a sign, not on a building is to be considered part of that sign.
Ord. § 3-1-14. Various sections of the ordinance prescribe the size, shape, location and content of allowed signs in each of the five zoning districts and, with some specifically enumerated exceptions, require a permit to be issued "[p]rior to construction, establishment, repair, replacement or changing of message" of a sign within the Township. Ord. § 13-1-10(A).
There are also provisions allowing nonconforming signs to remain intact for up to five years after the ordinance's effective date, but certain triggering events can curtail that privilege and require immediate compliance. For instance, section 13-1-12(C) of the ordinance requires existing signs to be brought into compliance if the content of the message on the sign is changed.
Two of the plaintiffs in this case, C.T. Leasing Co. and Azimuth Investments, Inc., are business owners who displayed signage before the ordinance took effect. C.T. Leasing owned a building which included an outdoor pole sign displaying the names of the tenants who occupied the building. When one of the tenants vacated its suite and another tenant moved in, C.T. Leasing changed the panel display on the sign to reflect the name of the new tenant. C.T. Leasing did not obtain a permit for this change. The Township contended that the change in the sign's message caused a forfeiture of the sign's legal nonconforming status, and that the pole sign did not conform to the ordinance's requirements, and therefore it issued a citation to C.T. Leasing to answer charges constituting a civil infraction. Azimuth has also been cited for a violation of the ordinance under similar circumstances.
Thereafter, the plaintiffs commenced this action under 42 U.S.C. § 1983 alleging that the sign ordinance impairs freedom of expression and exceeds the Township's regulatory authority under the First and Fourteenth Amendment "by imposing a complicated array of restrictions, limitations, conditions and bans on the content and type of signs that citizens of the Township currently use or may elect to use in the future." First Am.Compl., ¶ 28. In their first amended complaint, the plaintiffs set forth nine counts contending that the sign ordinance (1) violates the First Amendment as an unconstitutional regulation of both commercial and non-commercial speech; (2) violates the First Amendment as an unconstitutional prior restraint on a protected activity; (3) violates the Fourteenth Amendment's Equal Protection Clause; (4) violates the First Amendment as unconstitutionally overbroad; (5) violates the First Amendment as unconstitutionally vague; (6) violates the Fourteenth Amendment as unreasonable regulation under substantive due process; (7) lacks a legitimate purpose under the General Township Police Power Act, Mich. Comp.Laws § 41.1(a); (8) unconstitutionally interferes with the private contractual rights; and (9) violates the Fourteenth Amendment under the Procedural Due Process Clause.
The defendant has responded that the primary purpose of the ordinance is to regulate off-premises advertising, that the ordinance is permissive in that it allows all signs and messages except those which are specifically regulated or prohibited, and that it is the intent of the township officials to administer the ordinance in a content-neutral fashion. The Township contends, therefore, that the ordinance constitutes a valid regulation of the time, place, and manner of displaying messages which does not contravene the First Amendment.
The ordinance itself has fourteen sections which state the purpose of the ordinance; define its scope; set forth regulations for signage in the different zoning districts and for specific types of signs (billboard, off-premises and temporary signs); describe prohibited signs and non-conforming signs; prescribe the permitting process and exceptions to the permitting process; establish structural and illumination requirements; outline inspection, removal, and safety procedures; and define several terms.
Section three of the ordinance addresses the basic regulation for each of the five zoning districts: business, manufacturing, residential, environmental, and agricultural. A subsection of the ordinance purports to regulate the contents of the message on the signs in each district; the subsection, which is repeated in the description of permitted signs in each of the five districts, states, "Signs allowed in this zone shall contain information pertaining to permitted uses and applicable to a use therein." Ord. §§ 13-1-3(A)(10), (B)(4), (C)(4), (D)(4), & (E)(4).
The business district subsection contains a provision which distinguishes between "pole or ground signs" and "wall signs." A "pole sign" is "[a] sign that is free standing and supported by one or two poles which can be seen and who's [sic] advertisement begins off of grade level, and is not considered a ground sign." Ord. § 13-1-14. A "ground sign" is "[a] sign that...
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