Following cross-motions for summary judgment, last week, a federal court determined that a Michigan township’s billboard restrictions were constitutional, but found that the variance provisions contained in the township’s zoning ordinance were an unconstitutional prior restraint on speech.  In the same order, the court rejected a billboard owner’s regulatory taking, equal protection and unconstitutional tax claims.

Since 2002, Metamora Township’s sign regulations have limited billboards to the general business and light manufacturing zone districts of the township, and have prohibited the placement of billboards within 1,000 feet of one another or residential zone districts.  A billboard owner maintained a legally nonconforming 378 square foot billboard within 1,000 feet of another billboard in the local business district.  Because the nonconforming billboard was obstructed by utility lines, the owner wished to relocate the billboard across the street to a property in the general business district.  Because the relocated billboard would still be within 1,000 feet of another billboard, the township informed the owner that the billboard could be relocated, but that variance approvals would be required for the relocation.  The billboard owner bought the property across the street without securing the variance approvals.  Subsequently, at a 2014 hearing, the zoning board of adjustment denied the billboard owner’s variance requests.  The billboard owner filed suit.

Applying the four-part Central Hudson test, the court found that the township’s billboard regulations were supported by substantial governmental interests of aesthetics and traffic safety, that the restrictions directly furthered the asserted interests, and that the restrictions were sufficiently narrowly tailored.

Analyzing the prior restraint claim, however, the court determined that the standards for granting of variances, including requirements for “special circumstances,” were too subjective.  In the court’s words, “By the terms of the Ordinance, guidance given to the decision-makers is that variances should be granted when they ‘will not be contrary to the public interest.’ This is vague and provides absolutely no guidance.”  The court thus entered summary judgment in favor of the plaintiff on this claim.  However, because the township’s ordinance contained a severability clause, the court agreed that the constitutional billboard restrictions could be severed from the ordinance and maintained in effect.

The court also rejected the plaintiff’s taking and equal protection claims.  The court based its conclusion with regard to the taking claim on the argument that the plaintiff did not have reasonable investment backed expectations, given that he bought the property with the expectation of receiving multiple variances to relocate the billboard.  The court additionally rejected the plaintiff’s claim that the variance application fee was an unconstitutional tax, given that the plaintiff provided little justification for that argument.

Rzadkowolski v. Township of Metamora, ___ F. Supp. ___, 2016 WL 2756518 (E.D. Mich. May 12, 2016).