Hucul Advertising v. Charter Twp. Of Gaines

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0047p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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HUCUL ADVERTISING, LLC, a Michigan
Plaintiff-Appellant, --
limited liability company,
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No. 12-2343
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v.
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CHARTER TOWNSHIP OF GAINES, a Michigan
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municipal corporation,
Defendant-Appellee. N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:11-cv-00682—Robert Holmes Bell, District Judge.
Argued: December 3, 2013
Decided and Filed: February 5, 2014*
Before: BOGGS, SILER, and CLAY, Circuit Judges.
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COUNSEL
ARGUED: Steven F. Stapleton, MILLER CANFIELD, Grand Rapids, Michigan, for
Appellant. Craig R. Noland, SMITH HAUGHEY RICE & ROEGGE, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Steven F. Stapleton, MILLER CANFIELD, Grand
Rapids, Michigan, for Appellant. Craig R. Noland, William L. Henn, SMITH
HAUGHEY RICE & ROEGGE, Grand Rapids, Michigan, for Appellee.
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OPINION
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BOGGS, Circuit Judge. This case concerns the constitutionality of a zoning
ordinance that regulates the construction of billboards. Hucul Advertising, LLC, sought
*
This decision was originally issued as an “unpublished decision” filed on February 5, 2014. The
court has now designated the opinion as one recommended for full-text publication.
1
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 2
permission to construct a billboard on its property in the Charter Township of Gaines,
in Michigan. The Township denied Hucul’s application on the ground that the proposed
billboard would violate Chapter 17 of the Gaines Township Zoning Ordinance, which
regulates signs within the Township’s boundaries. The ordinance at the time permitted
billboards only on property that was “adjacent” to the M-6 highway right-of-way, and
Hucul’s property did not satisfy the adjacency requirement. Hucul then submitted an
application to build a digital billboard on the property. That application was also denied,
as the property was not adjacent to the M-6, and the proposed digital billboard would be
located within 4,000 feet of another digital billboard, which was also a violation of the
applicable zoning ordinance. Hucul then applied to the Zoning Board of Appeals
(“ZBA”) for relief, seeking approval to install a digital billboard, which the ZBA denied.
The Township subsequently amended the ordinance’s adjacency requirement to also
require that any proposed billboard be built within 100 feet of the M-6 and to clarify
that, in order for a parcel to be adjacent to the M-6, it must “abut and have frontage on
the M-6.”
Hucul sued the Township in state court, challenging the ZBA decision, and
claiming, inter alia, that the zoning ordinance violated the First Amendment, that the
Township violated Hucul’s civil rights by enforcing the ordinance, and that the
Township violated the Equal Protection Clause by treating land adjacent to public
property differently from land adjacent to private property. The Township removed the
case to federal district court, and the district court granted summary judgment to the
Township on all issues. Hucul appeals, maintaining that the billboard regulations violate
the First Amendment and the Equal Protection Clause, and arguing that the district court
improperly exercised supplemental jurisdiction over the ZBA appeal.
We hold that the 4,000-foot spacing requirement for digital billboards constitutes
a valid “time, place, and manner” restriction on speech. Since Hucul’s proposed digital
billboard does not satisfy this requirement, Hucul would not be entitled to relief even if
its objections to the adjacency requirements had merit. Accordingly, we need not
consider whether the adjacency requirements violate either the First Amendment or the
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 3
Equal Protection Clause. With regard to Hucul’s jurisdictional claim, we hold that the
district court did not abuse its discretion in exercising jurisdiction over the ZBA appeal.
I
We review a district court’s grant of summary judgment de novo. Frazier v.
Honda of Am. Mfg., Inc., 431 F.3d 563, 565 (6th Cir. 2005). Summary judgment is
appropriate where “the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The question is “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). When ruling
on a summary-judgment motion, a court must draw all reasonable inferences from the
evidence in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
We review for abuse of discretion a district court’s decision to exercise
supplemental jurisdiction over state-law claims. Blakely v. United States, 276 F.3d 853,
860 (6th Cir. 2002). “An abuse of discretion exists only when we are left with the
definite and firm conviction that the district court made a clear error of judgment in its
conclusion upon weighing relevant factors.” Veneklase v. Bridgewater Condos, L.C.,
670 F.3d 705, 709 (6th Cir. 2012) (citations and internal quotation marks omitted).
II
A
Hucul argues that the district court erred in holding that the 4,000-foot spacing
requirement for digital billboards did not violate the First Amendment. In particular, it
claims that the requirement is an impermissible restriction on commercial speech.
We must first decide what test to apply to determine whether the ordinance
violates the First Amendment. Hucul argues that the district court erred in applying the
“time, place, and manner” test for content-neutral restrictions on speech, instead of the
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 4
Central Hudson test for restrictions on commercial speech. Pl’s Br. at 16; see Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984); Central Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980). Under the
“time, place, and manner” test, restrictions on speech “are valid provided [1] that they
are justified without reference to the content of the regulated speech, [2] that they are
narrowly tailored [3] to serve a significant governmental interest, and [4] that they leave
open ample alternative channels for communication of the information.” Prime Media,
Inc. v. City of Brentwood, Tenn., 398 F.3d 814, 818 (6th Cir. 2005) (quoting Clark, 468
U.S. at 293). Under the Central Hudson test,
we must (1) determine whether the expression is protected by the First
Amendment. For commercial speech to come within that provision, it at
least must concern lawful activity and not be misleading. Next, we ask
whether (2) the asserted governmental interest is substantial. If both
inquiries yield positive answers, we must (3) determine whether the
regulation directly advances the governmental interest asserted, and
(4) whether it is not more extensive than is necessary to serve that
interest.
Bench Billboard Co. v. City of Toledo, 499 F. App’x 538, 543 (6th Cir. 2012) (internal
alteration marks omitted) (quoting Central Hudson, 447 U.S. at 566), cert. denied,
133 S. Ct. 1252 (2013).
Hucul asserted its claim below under the Central Hudson test, arguing that the
challenged ordinance regulates commercial speech. The district court, however,
analyzed Hucul’s claims under the “time, place, and manner” test, on the ground that the
challenged ordinance is content-neutral on its face, i.e., it does not purport to regulate
commercial speech only, nor does it distinguish between commercial and non-
commercial billboards. On appeal, Hucul continues to argue its claim under the Central
Hudson standard. The Township cites both tests in its brief but does not argue for the
use of one or the other; rather, it simply responds to Hucul’s arguments under the
Central Hudson test.
As a practical matter, the choice of which test to apply makes little difference
here: the two tests impose similarly demanding levels of “intermediate scrutiny,” Bench
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 5
Billboard Co. v. City of Covington, 465 F. App’x 395, 404 (6th Cir. 2012), and, as
relevant to this dispute, both tests impose similar requirements: under the “commercial
speech” test, the restrictions must “directly advance” a “substantial” governmental
interest, whereas under the “time, place, and manner” test, they must be “narrowly
tailored” to a “significant” governmental interest.1 In any event, we agree with the
district court that the appropriate test here is for “time, place, and manner” restrictions
on speech. We have held that, where an ordinance regulates both commercial and non-
commercial speech and does not differentiate between the two, the application of time,
place, and manner scrutiny is appropriate. Id. at 405 (“Central Hudson’s form of
intermediate scrutiny is not appropriately applied to content-neutral ordinances that
regulate both commercial and non-commercial speech.” (citing Cleveland Area Bd. of
Realtors v. City of Euclid, 88 F.3d 382, 386 (6th Cir. 1996)); see also Prime Media, 398
F.3d 814 (applying the “time, place, and manner” test to analyze the constitutionality of
size and height restrictions for billboards); Prime Media, Inc. v. City of Franklin, Tenn.,
181 F. App’x 536 (6th Cir. 2006) (same). Accordingly, we evaluate the ordinance under
the “time, place, and manner” test.
B
As background, we note that “[b]illboards and other visual signs . . . represent
a medium of expression that the Free Speech Clause has long protected.” Prime Media,
398 F.3d at 818. At the same time, “they ‘pose distinctive problems’ that also have long
been subjected to the ‘police powers’ of States and cities because billboards and signs
‘take up space and may obstruct views, distract motorists, displace alternative uses for
land, and pose other problems that legitimately call for regulation.’” Id. (quoting City
of Ladue v. Gilleo, 512 U.S. 43, 48 (1994)). We analyze the spacing requirement for
digital billboards in that context.
1
See Prime Media, 398 F.3d at 824 (“As the Supreme Court has held, the framework for
analyzing regulations of commercial speech is substantially similar to the test for time, place, and manner
restrictions. And the commercial-speech tailoring requirement––a reasonable fit between the legislature’s
ends and the means chosen to accomplish those ends––is a close cousin, if not a fraternal twin, of the test
that we have applied here.” (internal citations and quotation and alteration marks omitted)).
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 6
To constitute a valid restriction on the time, place, and manner of speech, a
restriction must first be “justified without reference to the content of the regulated
speech.” Clark, 468 U.S. at 293. To determine whether a regulation is content-neutral,
we ask “whether the government has adopted a regulation of speech because of
disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989). The requirement that digital billboards be spaced a certain distance
apart cannot reasonably be considered an attempt to censor a message: it addresses
whether and under what circumstances one may build a billboard—whatever its
content—not what that billboard may or may not say. In addition, the purported goals
of the ordinance are content-neutral. They include “[e]liminat[ing] distractions that are
hazardous to motorists and pedestrians,” “[p]rotect[ing] and enhanc[ing] property
values,” preventing “visual chaos and clutter,” and “[p]rotect[ing] the natural beauty and
distinctive character of Gaines Charter Township.” TWP. OF GAINES, MICH., ZONING
ORDINANCE § 17.1. The ordinance thus aims to promote traffic safety and aesthetics and
preserve property values, without reference to the content of the regulated speech.
Hucul does not appear to dispute that the spacing requirement for digital billboards is
content-neutral.
To constitute a valid restriction, the governmental interests that the spacing
requirement purports to serve must also be significant. We have long recognized that
governmental interests in aesthetics, traffic safety, and the preservation of property
values constitute “significant governmental interests.” See Metromedia, Inc. v. City of
San Diego, 453 U.S. 490, 507–08 (1981) (affirming that “the twin goals that the
ordinance seeks to further—traffic safety and the appearance of the city—are substantial
governmental goals”); see also Rzadkowolski v. Vill. of Lake Orion, 845 F.2d 653, 655
(6th Cir. 1988) (upholding regulations that “promote significant and legitimate aesthetic
interests which enhance property values and psychological well-being for individuals
and families”). Hucul does not dispute that the asserted governmental interests are
significant. We agree with the district court’s determination that the regulation easily
satisfies this criterion.
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 7
The next question is whether the regulations are narrowly tailored to serve the
governmental interests mentioned. As the Supreme Court has explained, “[s]o long as
the means chosen are not substantially broader than necessary to achieve the
government’s interest . . . the regulation will not be invalid simply because a court
concludes that the government’s interest could be adequately served by some less-
speech-restrictive alternative.” Ward, 491 U.S. at 800. Rather, we only require “a
reasonable fit between the legislature’s ends and the means chosen to accomplish those
ends.” Prime Media, 398 F.3d at 822 (citations and internal alteration and quotation
marks omitted).
To determine whether the ordinance’s spacing requirement is “narrowly
tailored,” it is helpful to briefly review controlling precedent on this issue. In
Metromedia, the Supreme Court invalidated San Diego’s prohibitions on outdoor
advertising on the ground that they were content-based, but a majority of the Court
would have found that even a total ban on billboards was “narrowly tailored” to achieve
the interests of aesthetics and traffic safety. See Prime Media, 398 F.3d at 820
(explaining the Supreme Court’s reasoning). In Ward, the Supreme Court upheld New
York City’s requirement that a city sound technician control the mixing board during
concerts at a bandshell in Central Park, despite the availability of alternative methods
of regulating sound volume. Ward, 491 U.S. at 800 (“It is undeniable that the city’s
substantial interest in limiting sound volume is served in a direct and effective way by
the requirement that the city’s sound technician control the mixing board during
performances. Absent this requirement, the city’s interest would have been served less
well.”). And in Members of the City Council of Los Angeles v. Taxpayers for Vincent,
466 U.S. 789, 808 (1984), the Court upheld a complete ban on posting signs on
telephone poles and similar public property, reasoning that “the City did no more than
eliminate the exact source of the evil it sought to remedy.”
Consistent with the Supreme Court’s reasoning, in Rzadkowolski, we “upheld a
billboard regulation as sufficiently tailored to achieve the interests of aesthetics and
traffic safety even though the regulations banned billboards in all but the small village’s
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 8
one industrial zone.” Prime Media, 398 F.3d at 821. We “upheld the restrictions
because most of the village was residential, and the restrictions promote[d] significant
and legitimate aesthetic interests which enhance property values and psychological well-
being for individuals and families. They may [have] also minimize[d] traffic
obstructions and possible visual hazards.” Id. (quoting Rzadkowolski, 845 F.2d at 655).
Likewise, in Prime Media, we upheld size and height restrictions for billboards as
“narrowly tailored” to the City of Brentwood’s interests in avoiding visual blight and
improving traffic safety. Id.
Hucul, framing its argument in terms of the related requirements under the
Central Hudson test, argues that “the regulations do not directly advance the necessary
governmental interest.” Pl.’s Br. at 16. First, Hucul points out that the Michigan
Highway Advertising Act (“MHAA”), Mich. Comp. Laws §§ 252.301-.323, allows for
digital billboards within 1,000 feet of each other. But as the district court explained, the
MHAA sets forth “a minimum spacing requirement rather than a mandatory or
maximum spacing requirement.” See Mich. Comp. Laws § 252.317 (providing that a
sign structure “shall not be erected closer than 1,000 feet to another sign structure on the
same side of the highway”) and Twp. of Homer v. Billboards by Johnson, Inc., 268 Mich.
App. 500, 504 (2005) (holding that the MHAA “sets forth minimum requirements that
a township cannot fall below, but that a township is free to exceed”). The fact that
different townships may exercise their discretion differently and reach different
judgments does not render the restrictions imposed by any one township unreasonable
and not “narrowly tailored” to a township’s goals.
Second, Hucul claims that the Township “does not justify” its decision to treat
digital billboards differently from static ones, which are not subject to the 4,000-foot
spacing requirement. Pl.’s Br. at 19. As the district court explained, however, the
Township need not offer an exact justification for the particular number that it chose.
In Prime Media, we recognized that “ask[ing] the City to justify a size restriction of
120 square feet over, say, 200 square feet or 300 square feet would impose great costs
on local governments and at any rate would do little to improve our ability to review the
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 9
law—because any further explanation assuredly would contain the kind of aesthetic and
subjective judgment that judges are not well-equipped to second guess.” 398 F.3d at
823–24. The fact that the Township could reasonably have imposed a spacing
requirement of less than 4,000 feet does not render its choice unreasonable or
substantially broader than necessary to achieve its goals. In addition, the Township did
in fact justify its decision to treat digital billboards differently. As the district court
explained, and as Hucul’s own witnesses acknowledged, digital billboards can have a
greater effect on safety and aesthetics than static ones due to their increased visibility
and changing display.
Hucul cites a Michigan Court of Appeals case in which the court struck down a
ban on “readily changeable signage,” where the defendant “offer[ed] no justification for
this restriction and [the court could] discern none.” See Outdoor Sys., Inc. v. City of
Clawson, 686 N.W.2d 815, 821 (2004). In that case, the zoning ordinance banned all
“billboards,” which it defined as signs a) unrelated to the principal use of the premises
and b) on which the display could readily be changed. Id. at 818. The court held that
the city’s distinction between signs that could and could not be “readily changed”
effectively prohibited outdoor-advertising companies from doing business and without
justification. Id. at 821.
Hucul argues that “the District Court did not like the holding in Outdoor
Systems . . . and simply failed to follow it.” Pl.’s Br. at 20. But Hucul’s objections are
unfounded. As a preliminary matter, we note that a state court’s interpretation and
application of the First Amendment of the United States Constitution are not binding on
this court. Regardless, Outdoor Systems is easily distinguished from this case, since it
dealt with what was effectively a ban on all billboards unrelated to the premises on
which they were built, rather than a restriction on digital signs that can change visually
from moment to moment. As the state court reasonably found, the fact that a sign may
change from time to time when space is leased to a new advertiser does not necessarily
render it more of an aesthetic or safety concern than a sign that cannot change at all.
Such an argument does not apply, however, to digital billboards, which change
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 10
constantly, and may very well present greater safety concerns (and perhaps greater
aesthetic ones) than do static billboards—digital billboards may be animated, and they
may be brighter and more distracting than static ones. Indeed, as Hucul acknowledged,
digital billboards are visible from a greater distance and may be more effective at
drawing the viewer’s attention. Accordingly, we cannot conclude that the Township’s
decision to treat them differently was unreasonable. Again, although the government’s
restriction on speech must “reasonably fit” the ends it seeks to achieve, the fit need not
be perfect. Moreover, Hucul offers no evidence suggesting that a 4,000-foot spacing
requirement provides no incremental benefits over a less restrictive regulation. We hold
that the Township’s “time, place, and manner” restriction is “narrowly tailored” to its
ends.
Finally, we must determine whether the spacing requirement leaves open ample
alternative channels for communication. We conclude that it does. The regulation
permits digital billboards that satisfy the spacing requirement and static billboards
spaced more closely together, and does not foreclose the use of any other modes of
communication. See Prime Media, 398 F.3d at 819 (holding that “the regulations leave
open ample alternative communication because they permit billboards that satisfy the
. . . restrictions” and because they “do ‘not affect any individual’s freedom to exercise
the right to speak and to distribute literature in the same place where the posting of signs
on public property is prohibited’” (quoting Taxpayers for Vincent, 466 U.S. at 812)).
Hucul does not argue that it does not have adequate alternative means of communication
at its disposal.
In view of the foregoing analysis, we hold that the billboard-spacing requirement
does does not violate Hucul’s First Amendment right to free speech. Since the
requirement is valid, Hucul’s failure to satisfy it is dispositive of its remaining claims
for relief aside from its jurisdictional claim, which we turn to below.
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 11
III
Hucul argues that the district court “abused its discretion when it opted to
exercise supplemental jurisdiction over [Hucul’s] purely state law zoning appeal.” Pl.’s
Br. at 26. Hucul argues that the district court should not have decided the appeal; rather,
it should have left the matter for a state court to decide.
Under federal law, “in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other claims
that are so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367(a). This includes supplemental jurisdiction over “state claims for on-
the-record review of local administrative action.” City of Chicago v. Int’l Coll. of
Surgeons, 522 U.S. 156, 171 (1997). Claims form part of the same case or controversy
when they “derive from a common nucleus of operative facts.” Blakely, 276 F.3d at 861
(citation omitted).
Here, Hucul’s zoning appeal involves the same factual issues as Hucul’s related
federal claims, i.e., the denial of its application for permission to construct a digital
billboard on its property. Hucul does not dispute that the district court had, a priori, the
right to exercise jurisdiction over the state-law zoning appeal on the grounds that the
state appeal and the federal claims formed part of the same case or controversy.
The question is whether the district court nonetheless abused its discretion in
exercising supplemental jurisdiction. Under 28 U.S.C. § 1367(c), a district court “may
decline” to exercise supplemental jurisdiction “if—
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over
which the district court has original jurisdiction,
(3) the district court has dismissed all claims over which it has original
jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for
declining jurisdiction.”
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 12
None of those exceptional circumstances is present in this case, and Hucul does
not argue otherwise. When one of those circumstances is present, we review the district
court’s decision not to exercise supplemental jurisdiction for abuse of discretion. But
in the absence of any such circumstance, it does not appear that a court would be
authorized—let alone required—to decline to exercise jurisdiction. The statute, in
authorizing the district court to decline to exercise supplemental jurisdiction under
certain circumstances (“district courts may decline”) (emphasis added), would appear
by implication to require the exercise of jurisdiction under all other
circumstances—expressio unius est exclusio alterius. Therefore, where no statutory
exception applies, a district court cannot abuse its discretion in exercising supplemental
jurisdiction over a state-law claim that forms part of the same case or controversy.
In any event, the district court did not abuse whatever discretion it may have had
by deciding the state-law zoning appeal in this case. Hucul does not argue that the
zoning appeal raised a novel or complex issue of state law or predominated over Hucul’s
numerous federal claims. Nor did the district court dismiss all the claims over which it
had original jurisdiction; instead, it resolved Hucul’s First Amendment and equal-
protection claims on the merits. Finally, Hucul does not argue, nor do we find, that other
compelling circumstances exist for declining to exercise jurisdiction in this case.
IV
The judgment of the district court is AFFIRMED.