Central Advertising Co. v. St Joseph Township

125 Mich. App. 548 (1983) 337 N.W.2d 15

CENTRAL ADVERTISING COMPANY
v.
ST JOSEPH TOWNSHIP

Docket No. 55403.

Michigan Court of Appeals.

Decided May 5, 1983.

Reid, Reid & Mackay, P.C. (by Michael H. Perry), for plaintiff.

Hartwig, Crow, Jones & Postelli (by John L. Crow), for defendant.

Before: R.B. BURNS, P.J., and BEASLEY and M.B. BREIGHNER,^[*] JJ.

R.B. BURNS, P.J.

Plaintiff initiated the present action for the purpose of having defendant's sign ordinance declared illegal under the Highway Advertising Act, MCL 252.301 et seq.; MSA 9.391(101) et seq., based upon state pre-emption of regulation. The trial court found defendant's off-premises sign ordinance illegal as it prohibited the erection of any off-premises sign. The trial court found that the Highway Advertising Act did not pre-empt defendant's ability to require minimum setback distances within adjacant areas. The trial court then remanded the cause to the township for the purpose of adopting a new sign ordinance dealing with off-premises signs. From this decision, plaintiff appeals and we affirm.

Plaintiff's first and main contention is that defendant has no power to regulate signs within adjacent areas to state trunk lines because of the pre-emption established by the Highway Advertising Act. The area of pre-emption was formerly described in MCL 252.304; MSA 9.391(104), to provide that:

"This act regulates and controls the size, lighting and spacing of signs and sign structures in adjacent areas and occupies the whole field of such regulation and control * * *."

The Legislature has recently amended this section by 1980 PA 36. This section now reads:

"This act 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 except for the following * * *."

Plaintiff bases its claim of pre-emption upon the language contained in Dingeman Advertising, Inc v Saginaw Twp, 92 Mich. App. 735; 285 NW2d 440 (1979). In that case, this Court said that "[t]he HAA regulates every phase of the construction and maintenance of such signs and state permits must be obtained prior to construction. In addition, local regulation is precluded only as to signs in an adjacent area * * *." Id., p 741. This Court found that the act was intended to occupy the entire field of regulation and control concerning signs within the adjacent area.

It is apparent from a close reading of the act, especially considering the amended act, that preemption extends only to the area of regulation, which is, size, lighting and spacing in adjacent areas. Additionally, Dingeman Advertising only dealt with a statute which totally prohibited off-premises advertising signs. This total prohibition was in violation of Central Advertising Co v Ann Arbor, 391 Mich. 533; 218 NW2d 27 (1974), and certainly constituted impermissible regulation of the size, lighting and spacing of billboards. We hold that the Highway Advertising Act does not pre-empt local governments from regulating areas unrelated to the spacing, lighting and size of signs in adjacent areas.

Plaintiff's second claim is that the trial court erred in ordering a remand pursuant to Ed Zaagman, Inc v Kentwood, 406 Mich. 137; 277 NW2d 475 (1979). Although the remand would have been improper had we found that the Highway Advertising Act pre-empted local governments from regulating advertising signs in adjacent areas at all, because we find there was no pre-emption of regulation intended for setback requirements, the remand was proper on this ground.

Plaintiff further claims that the remand was improper because there was no void in defendant's zoning ordinances. The trial court struck down defendant's prohibitory off-premises sign ordinance but applied defendant's general zoning ordinance which imposed a setback requirement for all buildings and structures. However, there was a void as to a specific ordinance dealing with the regulation of off-premises signs. Therefore, because of this void, the remand procedure was proper.

Finally, plaintiff claims the trial court erred in extending the Zaagman requirement of 60 days to almost 90 days. We note that a Zaagman remand is to comply with the dictates of equity and the requirements of reasonableness. In Zaagman, the Court allowed only 60 days in which the defendant was to come back to court with an amended ordinance. This was based in part on the lengthy delay which had already occurred. In the instant case, defendant stated it would have been impossible to adopt the ordinance within the 60-day period because of the holiday season and other factors. Therefore, the time period involved, from December 12, 1980, to March 16, 1981, was within the discretion of the trial court based upon equity and reasonableness.

Additionally, plaintiff claims that the trial court erred in denying its request for an injunction against enforcement of defendant's ordinance and in denying its request for an injunction forcing defendant to issue it a building permit. Although the trial court found defendant's off-premises sign ordinance illegal, it did find that the plaintiff, to have a permit issued to it, would have to comply with the general setback requirements and other aspects of the zoning ordinance. We note that this decision was correct. The invalid off-premises sign restrictions were exceptions to the general zoning regulations and were found to be severable. Therefore, plaintiff had to meet those regulations until a new off-premises sign ordinance had been adopted.

On this basis, plaintiff's claim that the trial court had to issue an injunction forcing defendant to issue to it a building permit for signs on the basis that defendant had no ordinance dealing with the regulation of off-premises signs is without merit.

Plaintiff additionally claims that the trial court should have granted an injunction forcing defendant to issue the permit based on a combination of factors. First, the court had invalidated defendant's off-premises sign ordinance. Second, plaintiff had filed an application for a permit. Third, defendant, approximately one week later, adopted a moratorium, which would last until they had adopted a new ordinance with respect to off-premises signs, against the issuance of permits. Fourth, defendant had not specifically rejected or approved any of the applications submitted by plaintiff. Fifth, defendant had an ordinance which stated that a permit had to be disapproved within 30 days, otherwise it would be deemed to have been approved.

We note that these actions occurred after the trial court had issued its opinion declaring the ordinance which prohibited off-premises signs to be illegal but before any order had been issued relating to the off-premises sign ordinance. It is elementary that a court acts through orders and not opinions. It should be further noted that defendant's failure during this time to issue the sign permit within 30 days after plaintiff had filed an application would ordinarily result in the application's being deemed approved based on defendant's ordinance. However, defendant's adoption of the moratorium would alleviate the problem. Although moratoria are not regarded favorably by the courts, this moratorium was to last only until a new ordinance relating to off-premises signs was adopted and presented to the court. Moreover, based on the trial court's order, defendant was without authority to deny a permit which was in compliance with the general zoning ordinance. With these considerations in mind, we do not find that the trial court's decision not to issue an injunction mandating that defendant issue the permit was erroneous.

Defendant, in its cross-appeal, asserts that the trial court erred by finding that plaintiff had standing to contest the denial of plaintiff's permit. The claim is that because the lease involved contained the provision "this lease is subject to lessee obtaining state and local permits for construction", plaintiff is precluded from having an adequate property interest by which to establish this lawsuit. We find that plaintiff has a sufficient interest in the outcome of the litigation to assure sincere and vigorous advocacy. Michigan License Beverage Ass'n v Behnan Hall, Inc, 82 Mich. App. 319; 266 NW2d 808 (1978).

Finally, defendant claims that the trial court erred in finding its off-premises sign ordinance unconstitutional under Central Advertising Co v Ann Arbor, supra. Defendant's claim that Central Advertising Co v Ann Arbor was not decided on constitutional grounds is correct; however, the trial court's decision as to the invalidity of this ordinance was proper. Although defendant has authority to regulate advertising signs, it does not have the power to prohibit them in totality. Superior Twp v Reimel Sign Co, 362 Mich. 481; 107 NW2d 808 (1961); Central Advertising Co v Ann Arbor, supra, p 536.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.