Hucul Advertising v. Gaines, Charter Township of

Filing

OPINION filed : the judgment of the district court is AFFIRMED, decision not for publication. Danny J. Boggs (Authoring), Eugene E. Siler , Jr., and Eric L. Clay, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0104n.06
No. 12-2343
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
HUCUL ADVERTISING, LLC,
Plaintiff-Appellant,
v.

CHARTER TOWNSHIP OF GAINES,
Defendant-Appellee.

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Feb 05, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN

Before: BOGGS, SILER, and CLAY, Circuit Judges.

BOGGS, Circuit Judge. This case concerns the constitutionality of a zoning ordinance
that regulates the construction of billboards. Hucul Advertising, LLC, sought 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

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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 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

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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 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

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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 contentneutral 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 Billboard Co. v.
City of Covington, 465 F. App’x 395, 404 (6th Cir. 2012), and, as relevant to this dispute, both

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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 commercialspeech 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)).

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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

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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.
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

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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 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.”
Rzadkowolski, 845 F.2d at 655).

Id (quoting

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

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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 law—because any further explanation
assuredly would contain the kind of aesthetic and subjective judgment that judges are not wellequipped 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

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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
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.

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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.
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).

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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.”
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

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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.

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