Outfront Media, LLC v. City of Grands Rapids
| Docket Number | 357319 |
| Decision Date | 11 August 2022 |
| Parties | OUTFRONT MEDIA, LLC, Appellant, v. CITY OF GRAND RAPIDS, Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Kent Circuit Court LC No. 20-005280-AA
Before: Rick, P.J., and Boonstra and O'Brien, JJ.
Appellant Outfront Media, LLC (Outfront) appeals by right the circuit court's order affirming the decision of the Board of Zoning Appeals (the BZA) of appellee the City of Grand Rapids (the City) The BZA had upheld the City's denial of Outfront's applications for permits to convert existing non-electronic billboards into electronic billboards. We affirm.
In January 2020, Outfront submitted 10 sign-permit applications to the City's planning department. The applications related to 10 locations in the City, in four different zoning districts. On each application, under the description of the work to be performed, Outfront stated: "Re-facing of existing billboard." Specifically, Outfront planned to replace existing, static billboards with electronic billboards. Undisputedly, all the existing billboards in question are approved nonconforming billboards under the Grand Rapids Zoning Ordinance. Outfront's permit applications were denied by the City on the basis that "digital billboards are not permitted."
Following the denial of its applications, Outfront sought review by the BZA. Outfront filed two applications in the BZA: (1) an application for code interpretation and (2) an application to appeal the denial of its sign-permit applications. Outfront asked the BZA to interpret the applicable ordinances and to determine that Outfront was entitled to replace the existing billboards with electronic billboards. Outfront argued that the City's Zoning Ordinance, Article 15, did not prohibit electronic billboards but allowed electronic billboards as a form of sign that uses LED bulbs as an electronic "changeable copy sign." Alternatively Outfront also argued that it was entitled to "reface" its legally nonconforming signs and that the proposed upgrades were permissible under the City's "Billboard Exchange Program." Finally, Outfront asserted that the City could not impose a content-based restriction on speech by treating on-premises signs differently than off-premises signs (i.e., billboards).
In response, the City's Planning Director asserted before the BZA that the permit applications were properly denied for four reasons:
Addressing Outfront's more specific arguments, the City's Planning Director also maintained that Outfront's proposed conversion of static signs to electronic billboards did not constitute "refacing," that the proposed changes to electronic signs were impermissible because the effect would be to make the signs more nonconforming, and that the Billboard Exchange Program did not apply.
The BZA considered Outfront's permit applications at a public meeting in June 2020. Consistent with the reasons offered by the City's Planning Director, the BZA unanimously denied Outfront's request to interpret the ordinance to allow the conversion of the billboards to electronic billboards and denied Outfront's appeal of the City's denial of the sign permits.
Following the BZA's decision, Outfront appealed to the circuit court, arguing that the BZA's decision was not authorized by law because the BZA had misinterpreted the City's Zoning Ordinances and treated off-premises signs differently than on-premises signs. Outfront also asserted that the BZA's findings were not supported by substantial evidence. The circuit court affirmed the BZA's decision. This appeal followed.
We review de novo a circuit court's decision in an appeal from a BZA ruling. Hughes v Almena Twp, 284 Mich.App. 50, 60; 771 N.W.2d 453 (2009).
This Court reviews the circuit court's determination regarding [BZA] findings to determine whether the lower court applied correct legal principles and whether it misapprehended or grossly misapplied the substantial evidence test to the [BZA]'s factual findings. This standard regarding the substantial evidence test is the same as the familiar clearly erroneous standard. A finding is clearly erroneous if the reviewing court, on the whole record, is left with the definite and firm conviction that a mistake has been made. [Id. (quotation marks and citations omitted).]
Deference should be accorded to any factual findings by the BZA. Id. However, we review de novo constitutional questions, Lima Twp v Bateson, 302 Mich.App. 483, 503; 838 N.W.2d 898 (2013), and issues involving the interpretation and application of ordinances. Sau-Tuk Indus, Inc v Allegan Co, 316 Mich.App. 122, 136; 892 N.W.2d 33 (2016).
[T]he goal of construction and interpretation of an ordinance is to discern and give effect to the intent of the legislative body. The most reliable evidence of that intent is the language of the ordinance itself, which must be given its plain and ordinary meaning. When the words used in a statute or an ordinance are clear and unambiguous, they express the intent of the legislative body and must be enforced as written. [Id. at 137 (quotation marks and citations omitted).]
Outfront argues that the circuit court erred by affirming the BZA's decision because the BZA made an error of law by misinterpreting the City's Zoning Ordinance to preclude the electronic upgrades to Outfront's billboards. Additionally, given that Outfront's existing billboards are legally nonconforming, Outfront argues that it may convert them to electronic billboards as (1) part of its maintenance of these existing billboards or (2) as an upgrade under the Billboard Exchange Program. We disagree.
Article 15, in Chapter 61 of Title V, of the Grand Rapids Code governs "signs" in the City. Article 15 is intended in part to promote "safe, well-maintained, vibrant and attractive residential and business neighborhoods while accommodating the need for signs to function for the purposes for which they are intended." Grand Rapids Code, § 5.15.01(A)(1). The Article also purports to recognize and balance "the individual user's right to convey a message" and "the public's right to be free of signs which unreasonably compete with one another, distract drivers and pedestrians, and create safety concerns and confusion." Grand Rapids Code, § 5.15.01(A)(2). To this end, Article 15 is intended to "[e]nsure that signs are located, designed, constructed, installed and maintained in a way that protects life, health, property and the public welfare," including addressing concerns related to safe traffic conditions and the aesthetic quality of neighborhoods, while also protecting free speech. See Grand Rapids Code, § 5.15.01(B)(2)-(5). Although the regulations in Article 15 "allow for a variety of sign types and sizes, they do not necessarily ensure every property owner or business owner's desired level of visibility." Grand Rapids Code, § 5.15.01(A)(7).
Article 15 makes it "unlawful for any person to erect, construct, install, place, locate, rebuild, modify or maintain a sign or allow a sign to remain on property in the City except in compliance with this Article." Grand Rapids Code, § 5.15.02(a). Notably, Article 15 is set forth in a "permissive format," meaning that it states the types of signs permitted and necessarily implies the exclusion of any sign not listed. See Independence Twp v Skibowski, 136 Mich.App. 178, 184; 355 N.W.2d 903 (1984) (). Further, § 5.15.06(A) expressly states: "Any sign that is not specifically permitted by this Article is prohibited." See also Grand Rapids Code, § 5.15.02(B)(3) ().
In broad terms, Article 15 identifies, and defines, numerous types of signs. See Grand Rapids Code, § 5.15.17. It also provides rules for those signs, in terms of size, placement, illumination, materials, etc. See, e.g., Grand Rapids Code, § 5.15.05 and § 5.15.06. In some cases, these rules differ depending on the zoning district in question. See, e.g., Grand Rapids Code, § 5.15.11 to § 5.15.13. Relevant to this case, Article 15 also provides rules for nonconforming signs, i.e., signs that were legally erected before the effective date of Article 15, but which do not conform to current sign regulations. See Grand Rapids Code, § 5.15.03. These rules for nonconforming signs involve provisions for maintenance and repair, prohibitions on expanding a nonconforming use, and a Billboard Exchange Program that allows for certain upgrades in exchange for the elimination of other nonconforming signs. See Grand Rapids Code, § 5.15.03.
Before addressing the rules for specific signs and zoning districts, we begin with some general definitions as set forth in Article 15. First of all, Article 15 defines a "sign" as:
Any name, number, symbol, identification, description, display, illustration, object, graphic, sign structure, or part thereof, whether permanent or temporary, which is affixed to, painted on, represented directly or indirectly upon, or projected onto a building, structure, lot, or other device, whether mobile or affixed to the...
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