Homer Township v. Billboards by Johnson, Inc

708 N.W.2d 737 (2005) 268 Mich. App. 500

TOWNSHIP OF HOMER, Plaintiff/Counter-Defendant-Appellee/Cross-Appellant,
v.
BILLBOARDS BY JOHNSON, INC., Defendant/Counter-Plaintiff-Appellant/Cross-Appellee.

Docket No. 256216.

Court of Appeals of Michigan.

Submitted October 12, 2005, at Lansing. Decided October 27, 2005, at 9:10 a.m. Released for Publication January 6, 2006.

Currie Kendall, PLC (by Peter A. Poznak), Midland, for the plaintiff.

Terry E. Heiss, Ada, for the defendant.

Before: KELLY, P.J., and METER and DAVIS, JJ.

DAVIS, J.

In this interlocutory appeal, we granted defendant leave to appeal a partial grant of summary disposition, in which the trial court held that the Highway Advertising Act (HAA), MCL 252.301 et seq., did not preempt two of plaintiff's billboard ordinances. One ordinance prohibited "cross-reader" billboards, which are two-sided billboards displaying advertising to highway traffic traveling in both directions. Defendant added a second face to an existing billboard, contrary to the permit issued by plaintiff, in the belief that plaintiff's ban on cross-reader billboards violated the HAA. Plaintiff later enacted the second ordinance, which prohibited new off-premises billboards. Plaintiff seeks an injunction requiring removal of the second billboard face and its associated structural components. On cross-appeal, plaintiff also contends that defendant lacks standing to challenge the ordinances. We affirm in part, reverse in part, and remand for further proceedings.

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). We review de novo issues involving preemption, which involve statutory interpretation. Konynenbelt v. Flagstar Bank, FSB, 242 Mich.App. 21, 27, 617 N.W.2d 706 (2000). The goal of statutory interpretation is to give effect to the intent of the Legislature, with the presumption that unambiguous language should be enforced as written. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003).

"[A] municipal ordinance is preempted by state law if 1) the statute completely occupies the field that ordinance attempts to regulate, or 2) the ordinance directly conflicts with a state statute." Rental Prop. Owners Ass'n of Kent Co. v. Grand Rapids, 455 Mich. 246, 257, 566 N.W.2d 514 (1997). MCL 252.304 explicitly states that the HAA "regulates and controls the size, lighting, and spacing of signs and sign structures in adjacent areas and occupies the whole field of that regulation and control," with four enumerated exceptions, one of which permits townships to "enact ordinances to regulate and control the size, lighting, and spacing of signs and sign structures" as long as doing so does not allow a sign otherwise prohibited by the HAA. Under MCL 252.302(o), an "adjacent area" is "the area measured from the nearest edge of the right of way of an interstate highway, freeway, or primary highway, and extending 3,000 feet perpendicularly and then along a line parallel to the right-of-way line."

We have held that the HAA expressly occupies the whole field of regulation and control of off-premises billboards, but only precluded local regulation of signs in adjacent areas "where the facing of the sign is visible from an interstate highway, freeway or primary highway." Dingeman Advertising, Inc. v. Saginaw Twp., 92 Mich. App. 735, 740-741, 285 N.W.2d 440 (1979). However, we later noted that a closer reading of the HAA indicates "that preemption extends only to the area of regulation, which is, size, lighting and spacing in adjacent areas," so the HAA "does not pre-empt local governments from regulating areas unrelated to spacing, lighting and size of signs in adjacent areas." Central Advertising Co. v. St. Joseph Twp., 125 Mich.App. 548, 552, 337 N.W.2d 15 (1983). Accord Oshtemo Twp. v. Central Advertising Co., 125 Mich.App. 538, 542, 336 N.W.2d 823 (1983).

This plain and unambiguous language of the opening sentence of MCL 252.304 mandates the conclusion we reached in Central Advertising Co. Under the last antecedent rule, "that regulation and control" must refer to "regulat[ing] and control[ing] the size, lighting, and spacing of signs and sign structures in adjacent areas." See Stanton v. Battle Creek, 466 Mich. 611, 616, 647 N.W.2d 508 (2002) ("[A] modifying or restrictive word or clause contained in a statute is confined solely to the immediately preceding clause or last antecedent, unless something in the statute requires a different interpretation."). We enforce the plain and unambiguous language of the statute as it is written. Gladych, supra at 597, 664 N.W.2d 705.

The ordinances at issue fall outside the scope of the intended preemption in the HAA and do not conflict with the HAA's regulatory scheme. The two ordinances prohibit cross-reader signs and new off-premises billboards, respectively. Neither facially regulates size, lighting, or spacing of billboards in adjacent areas. Furthermore, the HAA's prohibition against ordinances allowing signs that are "otherwise prohibited" constitutes a prohibition against expanding uses. It follows that the HAA sets forth minimum requirements that a township cannot fall below, but that a township is free to exceed. Thus, the township may enact ordinances that are more restrictive than required by the HAA. Therefore, the ordinances are both outside the scope of the HAA's regulatory scheme and would in any event be permitted under an explicit exception. Furthermore, plaintiff's ban on new billboards is not a total ban and is therefore permissible. Adams Outdoor Advertising, Inc. v. Holland, 463 Mich. 675, 684-685, 625 N.W.2d 377 (2001).

On cross-appeal, plaintiff argues that defendant lacks standing to challenge the ordinances. We agree in part. Standing is a question of law that we review de novo. Lee v. Macomb Co. Bd. of Comm'rs., 464 Mich. 726, 734, 629 N.W.2d 900 (2001). In order to have standing, a party must show an actual injury that is caused by the opposing party and is "`likely'" to "be `redressed by a favorable decision.'" Id. at 739, 629 N.W.2d 900, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The trial court erroneously stated that plaintiff had not challenged defendant's standing to contest the ban on cross-reader billboards. However, defendant did not seek a variance from the cross-reader bill-board ban when plaintiff denied it a permit to put the second face on the sign structure. Instead, defendant installed the second sign face and only sought a variance after plaintiff had amended the ordinance to prohibit new billboards. Therefore, because defendant revised its building permit request to seek a single-sign permit and because defendant never sought a variance allowing the cross-reader billboard to be installed until after the ordinance had been completely revised, the court erred in finding that defendant had standing to challenge the ban on cross-reader billboards. However, defendant apparently did apply for a variance that was denied because of the amended ordinance, so the trial court did not err in finding that defendant had standing to challenge the revised billboard ordinance.

The trial court declined to address plaintiff's argument that its billboard ordinances are valid as a matter of law under Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993), and Rochester Hills v. Schultz, 459 Mich. 486, 592 N.W.2d 69 (1999). We need not address the issue either, Grand Rapids Employees Independent Union v. Grand Rapids, 235 Mich.App. 398, 409, 597 N.W.2d 284 (1999), especially where this appeal can be decided without reaching constitutional issues. Pythagorean, Inc. v. Grand Rapids Twp., 253 Mich.App. 525, 527, 656 N.W.2d 212 (2002). We likewise decline to address the issue.

The trial court's conclusion that the HAA does not preempt the ordinances is affirmed. The trial court's finding that defendant had standing to challenge the cross-reader billboard ban is reversed, and the trial court's finding that defendant had standing to challenge the revised ordinance is affirmed. We remand for further proceedings.