Norman Corp. v. City of East Tawas, Docket No. 245410.

• Decision Date: 13 October 2004
• Docket Number: Docket No. 245410.
• Citation: 263 Mich. App. 94,687 N.W.2d 861
• Parties: NORMAN CORPORATION and S.L. Realty, LLC, Plaintiffs-Appellants, v. CITY OF EAST TAWAS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

687 N.W.2d 861

263 Mich. App. 94

NORMAN CORPORATION and S.L. Realty, LLC, Plaintiffs-Appellants, v. CITY OF EAST TAWAS, Defendant-Appellee.

Docket No. 245410.

Court of Appeals of Michigan.

Submitted June 8, 2004, at Lansing.

Decided August 3, 2004, at 9:00 a.m.

Released for Publication October 13, 2004.

Dickinson Wright, PLLC (by Timothy A. Stoepker and Paul R. Bernard), Detroit, for the plaintiffs.

Plunkett & Cooney, P.C. (by Mary Massaron Ross and H. William Reising), Detroit, for the defendant.

Before: FITZGERALD, P.J., and BANDSTRA and SCHUETTE, JJ.

SCHUETTE, J.

Defendant, city of East Tawas, appeals a circuit court order reversing an East Tawas Zoning Board of Appeals (ZBA) decision that denied plaintiffs, Norman Corporation and S.L. Realty, LLC, a sign variance. The court held defendant's sign ordinance unconstitutional and authorized plaintiffs to erect the sign for which the variance was requested. Defendant applied for leave to appeal, which was denied by this Court. Our Supreme Court, in lieu of granting leave, remanded the case to this Court for consideration as on leave granted and directed this Court to determine the validity and applicability of Art Van Furniture v. City of Kentwood, 175 Mich.App. 343, 437 N.W.2d 380 (1989), to this case. 467 Mich. 920, 656 N.W.2d 519 (2002). We hold that Art Van Furniture is an incorrect statement of law and we choose to follow instead Muskegon Area Rental Ass'n v. Muskegon, 465 Mich. 456, 636 N.W.2d 751 (2001). As such, the East Tawas ordinance is constitutional; its sign-size limitation is valid, and, to that extent, the circuit court order is reversed. However, that portion of the order that invalidated the ZBA's sign-area calculation method stands.

I. FACTS

In March 2003, defendant's planning commission denied plaintiffs' request for a sign permit because it found the proposed signs would exceed the number and size permitted under the city's sign ordinance. That decision was appealed to the zoning board of appeals (ZBA). At the ZBA hearing, plaintiffs petitioned for a variance from the ordinance's size limitation, which limited plaintiffs' proposed canopy sign to ten percent of their building's facade or one hundred square feet, whichever was smaller.¹ In support of their variance request, plaintiffs argued that the ordinance unfairly limited the size and number of signs that could be affixed to their single-tenant building because, under the ordinance, a multi-tenant building of equal size would have more usable sign space. Plaintiffs also sought interpretation of the ordinance to determine the correct method for measuring a sign's area.²

The ZBA denied the request for a variance, concluding plaintiffs' problem was self-created because plaintiffs' building had been designed and built without considering the sign ordinance's restrictions; plaintiffs would not suffer an unreasonable burden, suffer injustice, or be deprived of the use of their property by complying with the sign ordinance; and it would be inappropriate to grant a variance because unique circumstances did not exist. Further, the ZBA concluded that the traditional practice of enclosing a sign's copy into a geometric space and using that space's area to determine copy area was a sound interpretation of the ordinance.³

The ZBA decision was appealed to the Iosco Circuit Court. Plaintiffs argued that (1) the ordinance unconstitutionally distinguished between single-and multi-tenant businesses and (2) the ZBA sign-area calculation method erroneously exaggerated sign size. Concerning the variance request, the circuit court applied Art Van Furniture to invalidate the ordinance's size limitation as an unconstitutional distinction between single-and multi-tenant businesses violating the Equal Protection Clause. Further, the court held that a sign's copy only included "the area encompassed by the writing, [or] symbols utilized to communicate a message" and concluded that the proposed sign's area was erroneously exaggerated by the ZBA's calculation method.

Therefore, the circuit court reversed the ZBA's decision and permitted plaintiffs to erect their signs. This Court denied defendant's application for leave to appeal in April 2002 for lack of merit. The Supreme Court remanded "for consideration as on leave granted" and instructed the Court of Appeals to address whether Art Van Furniture is still good law and applicable to this case.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision in an appeal from a city's zoning board, while giving great deference to the trial court and zoning board's findings. Cryderman v. Birmingham, 171 Mich.App. 15, 20, 429 N.W.2d 625 (1988).

III. ANALYSIS

A. Sign-size Limitation

The circuit court relied on erroneous precedent. Art Van Furniture is not a valid statement of law and is thus reversed. In Art Van Furniture, this Court addressed the issue of a Kentwood maximum sign limitation and concluded that the limitation was "unreasonable and arbitrary and, accordingly, in violation of the due process clause of the Michigan Constitution." Id. at 345, 437 N.W.2d 380. Relying on Delta Twp. v. Dinolfo, 419 Mich. 253, 269, 351 N.W.2d 831 (1984), the Art Van Furniture Court framed the issue:

Our task is not to evaluate the reasonableness of one land use over another, but to evaluate whether the existence of the [] distinction [between single-and multi-tenant buildings] is permissible. The appropriate standard is the due process standard generally used to evaluate the normal use of the police power. We still presume the constitutionality of the ordinance, but the extraordinary deference given to the line drawing in traditional zoning matters is not appropriate here. The governing rule is one of reason. The classification must be a reasonable one, and it must bear a reasonable relation to the object of the legislation. The means selected must have a real and substantial relation to the object sought to be obtained. [175 Mich. App at 352, 437 N.W.2d 380 (citations omitted).]

This Court erred when it applied Dinolfo to Art Van Furniture to conclude that "the extraordinary deference given to the line drawing in traditional zoning matters is not appropriate here." Art Van Furniture, supra at 352, 437 N.W.2d 380. In Dinolfo, our Supreme Court addressed a zoning ordinance that drew a distinction between related and unrelated households. Because that distinction involved a substantive due process concern — a legislative distinction based on household composition — our Supreme Court applied a heightened standard of constitutional review:

"It is elementary that substantive due process demands that zoning regulations, like all police power legislation, must be reasonably exercised — the regulation must not be unreasonable, arbitrary or capricious, the means selected must have a real and substantial relation to the object sought to be attained, and the regulation or proscription must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not partake of the offensive character of those which caused the problem sought to be ameliorated. [Dinolfo, supra at 270, 351 N.W.2d 831, quoting Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251, 281 A.2d 513 (1971) (emphasis added).]

It is true that under both due process and equal protection analyses the governing rule is one of reason. Kropf v. Sterling Hts., 391 Mich. 139, 157, 215 N.W.2d 179 (1974); Haberkorn v. Chrysler Corp., 210 Mich.App. 354, 381, 533 N.W.2d 373 (1995). However, legislative classifications that do not involve substantive due process concerns do not require the "regulation ... [to] be reasonably calculated to meet the evil and not exceed the public need." Rather, under the applicable standard, rational basis review, such legislative distinctions are presumed to be constitutional and must only "be rationally related to a legitimate government interest." Landon Holdings, Inc. v. Grattan Twp., 257 Mich. App. 154, 173, 667 N.W.2d 93 (2003). When reviewing a due process or equal protection challenge, this Court defers to the legislative will and cannot apply heightened review absent a substantive due process issue or a suspect legislative classification.

In both Art Van Furniture and this case, substantive due process concerns are conspicuously absent. Further, our Supreme Court has concluded that distinguishing between two classes of businesses is not suspect and passes rational basis review. Muskegon Area Rental Ass'n, supra at 465-467, 636 N.W.2d 751. Our Supreme Court has noted that, if such legislative distinctions violated rational basis review, "then virtually any classification could be successfully challenged." Id. at 465, 636 N.W.2d 751. Such an interpretation would effectively usurp the legislature prerogative and, therefore, cannot be allowed.

In Art Van Furniture, this Court concluded that the wall-sign ordinance was rationally related to a legitimate governmental interest, namely "to promote traffic and pedestrian safety and to maintain the aesthetic value of the community." Art Van Furniture, supra at 352, 437 N.W.2d 380. This was a correct conclusion because protecting and promoting public health, safety, and general welfare are legitimate governmental interests, Square Lake Hills Condo. Ass'n v. Bloomfield Twp., 437 Mich. 310, 325, 471 N.W.2d 321 (1991), reh den 437 Mich. 1280, 472 N.W.2d 287 (1991), and protecting aesthetic value is included in the concept of the general welfare. Gackler Land Co., Inc. v. Yankee Springs Twp., 427 Mich. 562, 572, 398 N.W.2d 393 (1986).

Therefore, in Art Van Furniture, this Court should have concluded that the ordinance was constitutional because it rightly concluded that the ordinance was rationally related to a legitimate governmental purpose.

Like Art Van Furniture, this case presents a legislative maximum sign limitation that effectively distinguishes between single-and...