PEOPLE OF CITY OF ROSEVILLE v. Stross

755 N.W.2d 187 (2008)

PEOPLE OF the CITY OF ROSEVILLE, Plaintiff-Appellant,
v.
Edward STROSS, Defendant-Appellee.

Docket No. 136235. COA No. 271764.

Supreme Court of Michigan.

September 10, 2008.

On order of the Court, the application for leave to appeal the February 21, 2008 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals. Defendant received a variance to paint an oversized sign from the local Zoning Board of Appeals, under specified conditions, on July 15, 1997. In 2005, a jury convicted defendant under a local ordinance for violating these conditions. The Court of Appeals concluded that the condition prohibiting "lettering" was "an unconstitutional regulation of speech, infringing on defendant's First Amendment protections," and reversed the conviction.

The Court of Appeals erroneously reached this conclusion, in our judgment. At the time defendant's variance was granted, then-current MCL 125.585(11) required a party to challenge the constitutionality of the variance within 21 days. Defendant's painting the word "LOVE" on the sign clearly violated the "lettering" condition of the variance. Because this statute prescribed the relevant procedure for challenging the constitutionality of the conditions, defendant was obligated to challenge these conditions in accordance with this procedure. His failure to do so precludes him from raising his constitutional challenge eight years later. See Finlayson v. West Bloomfield Township, 320 Mich. 350, 357-358, 31 N.W.2d 80 (1948) (requiring a claim to be filed within the time period specified by statute); City of Troy v. Aslanian, 170 Mich.App 523, 530, 428 N.W.2d 703 (1988) ("A party who has accepted and retained the advantages of a variance granted on condition is estopped to attack the propriety of the condition."). Because the Court of Appeals did not address the remainder of defendant's issues on appeal, we REMAND to the Court of Appeals to consider defendant's remaining arguments.

MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., would deny leave to appeal.