CBS Outdoor, Inc. v. Royal Oak, City of

Filing 22

ORDER denying 15 Motion to Dismiss. Signed by District Judge Nancy G. Edmunds. (CHem)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CBS Outdoor, Inc.,
Plaintiff,
Case No. 11-13887
v.
Honorable Nancy G. Edmunds
City of Royal Oak,
Defendant.
/

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT ON
THE PLEADINGS
This matter comes before the Court on Defendant City of Royal Oak’s motion for
judgment on the pleadings. For the reasons set forth below, Defendant’s motion is
DENIED.
I.

Facts
Plaintiff CBS Outdoor, Inc. challenges the constitutionality of Defendant’s zoning

ordinance as it applies to billboards. Specifically, Plaintiff asserts that the special land
use permit requirements and application process constitute a facially unconstitutional
prior restraint on free speech.
A.

Defendant’s Zoning Ordinance

In Royal Oak, billboards are regulated by § 770-57, under “Article V. Special
Provisions” of the zoning ordinance (“Billboard Ordinance”). The Defendant’s zoning

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ordinance establishes that billboards are a special land use for property zoned general
industrial. (Compl. ¶¶ 14, 15.) Proposed billboards are subject to Defendant’s special
land use application and permit process. (Compl. ¶¶ 16, 18.) Article III, Section 11 of
the Zoning Ordinance establishes the process for obtaining a special land use permit,
which may be granted by the City’s planning commission (“Planning Commission”) in its
discretion. (Compl. ¶ 19; Def. Mot. Ex. B, at 3-4.) First, an applicant must submit a
special land use application, a site plan, and a fee. (Id.) If the City’s zoning
administrator determines that the submission is complete, he or she forwards the
application to the Planning Commission. (Id.) The City’s Planning Commission must
hold a public hearing prior to deciding to approve or deny the special land use. (Id.)
In deciding to approve or deny a special land use, the Planning Commission shall
establish whether the proposed special land use:
(1) Will be harmonious and in accordance with the general objectives or any
specific objectives of the Master Plan;
(2) Will be designed, constructed, operated, and maintained so as to be
harmonious and appropriate in appearance with the existing or intended
character of the general vicinity and will not change the essential character
of the area;
(3) Will not be hazardous or disturbing to existing uses or uses reasonably
anticipated in the future;
(4) Will be an improvement in relation to property in the immediate vicinity
and to the City as a whole;
(5) Will be served adequately by essential public services and facilities or that
the persons responsible for the establishment of the proposed use will
provide adequately any such service or facility;
(6) Will not create excessive additional public costs and will not be
detrimental to the economic welfare of the City; and

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(7) Will be consistent with the intent and purposes of this chapter, and
comply with all applicable provisions and standards which are established for
said use by this chapter and other applicable codes.
(Id.) Any decision which denies a request shall specify the basis for the denial. (Id.)
B.

Plaintiff’s Billboard Denied

Plaintiff brought this action when Defendant denied Plaintiff’s request to erect
and maintain a billboard located at 5060 Coolidge Hwy., which is zoned general
industrial in the City of Royal Oak. (Compl. ¶¶ 20, 21.) Defendant informed Plaintiff that
Plaintiff had to submit a special land use application, a site plan, and a $1500 fee in
order to obtain a permit to erect a billboard. (Id. at ¶¶ 22.) Plaintiff submitted the
required materials and fee. (Id. at ¶¶ 23, 24.) Defendant’s planning department
reviewed the site plan and informed the Planning Commission that the proposed
billboard met or exceeded the standards under the Billboard Ordinance. (Id. at ¶¶ 25,
26.) At a public hearing on August 9, 2011, however, the Planning Commission denied
Plaintiff’s special land use permit. (Id. at ¶¶ 27, 28.)
According to Defendant’s Planning Commission meeting minutes:
Denial of the special land use permit is based on the following findings:
1. The proposed billboard would be neither harmonious nor in accordance
with the objectives of the Master Plan.
2. The proposed billboard would not be designed, constructed, operated,
and/or maintained so as to be harmonious and appropriate in appearance
with the expected commercial redevelopment of surrounding obsolete
industrial properties.
3. The proposed billboard would be hazardous and/or disturbing to existing
uses and commercial uses reasonably anticipated to develop in the area in
the future. The proposed billboard would be a hazardous distraction to the
large volumes of passing motorists on Coolidge Highway.
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4. The proposed billboard would not be an improvement in relation to
property in the immediate vicinity and/or to the City as a whole, and would
provide no benefit to the community.
5. The proposed billboard would not be consistent with the intent and
purposes of the Zoning Ordinance.
6. The proposed billboard would have other unspecified negative impacts on
the public health, safety and welfare.
(Compl. ¶ 29; Def. Mot Ex. 3, at 6.) The motion to deny Plaintiff’s application for a
special land use permit was adopted unanimously. (Def. Mot Ex. 3, at 6.)
Defendant prohibited Plaintiff from erecting its proposed billboard by refusing to
grant a special land use permit. (Compl. ¶¶ 31, 32.) The Planning Commission made
no statements that it contested the planning department’s determination that Plaintiff’s
proposed billboard met or exceeded all requirements under the Billboard Ordinance.
(Id. ¶ 21).
II.

Standard
At any time after the pleadings close, but before trial commences, a party may

move for a judgment on the pleadings. See Fed. R. Civ. P. 12(c). The standard of
review is the same de novo standard applicable to a motion to dismiss brought pursuant
to Fed. R. Civ. P. 12(b)(6). Ziegler v. IBP Hog Mkt., Inc., 249 F.3d 509, 511-12 (6th Cir.
2001).
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests
the sufficiency of a complaint. In a light most favorable to the plaintiff, the court must
assume that the plaintiff’s factual allegations are true and determine whether the
complaint states a valid claim for relief. See Albright v. Oliver, 510 U.S. 266 (1994);
Bower v. Fed. Express Corp., 96 F.3d 200, 203 (6th Cir. 1996).
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To survive a Rule 12(b)(6) motion to dismiss, the complaint’s “factual allegations
must be enough to raise a right to relief above the speculative level on the assumption
that all of the allegations in the complaint are true.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal citations and emphasis omitted). See also Ass’n of
Cleveland Fire Fighters v. City of Cleveland, Ohio, 502 F.3d 545, 548 (6th Cir. 2007).
“[T]hat a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of all the elements of a cause of
action, supported by mere conclusory statements do not suffice.” Ashcroft v. Iqbal, ___
U.S. ___, 129 S. Ct. 1937, 1949 (2009). The court is “not bound to accept as true a
legal conclusion couched as a factual allegation.” Id. at 1950 (internal quotation marks
and citation omitted). Moreover, “where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged – but it
has not shown – that the pleader is entitled to relief.” Id. (internal quotation marks and
citation omitted). While legal conclusions provide the framework of a complaint, those
conclusions must be supported by factual allegations. Id.
A rule 12(b)(6) analysis generally forbids a court from considering documents
outside the pleadings, but when a document is referred to in the complaint and is central
to the plaintiff’s claim, the court may consider it. Greenberg v. Life Ins. Co. of Va., 177
F.3d 507, 514 (6th Cir. 1999). This does not convert a motion to dismiss into a motion
for summary judgment. Id.
III.

Analysis
Defendant seeks a judgment on the pleadings for Count I of Plaintiff’s Complaint,

which alleges that Defendant’s zoning ordinance is a facially unconstitutional prior
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restraint on free speech.
Regardless of whether an ordinance is content-based or content-neutral, it
cannot place unduly broad discretion in the hands of a licensing official or agency to
determine whether to grant or deny a permit. FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 225 (1990); Thomas v. Chicago Park District, 534 U.S. 316 (2002); Forsyth County
v. Nationalist Movement, 505 U.S. 123, 131 (1992). This Court has found several city
zoning ordinances that govern billboards to be unconstitutional prior restraints on free
speech because they lack objective standards and placed too much discretion in the
licensing officials. See Int’l Outdoor, Inc. v. City of Romulus, No. 07-15125, 2008 WL
4792645 (E.D. Mich. Oct. 29, 2008) (Zatkoff, J.); King Enterprises, Inc. v. Thomas Twp,
215 F. Supp. 2d 891 (E.D. Mich. 2002) (Lawson, J.); Macdonald Advertising Co. v. City
of Pontiac, 916 F. Supp. 644 (E.D. Mich. 1995) (Rosen, J.); see also CBS Outdoor, Inc.
v. City of Kentwood, No. 09-CV-1016, 2010 WL 3942842 (W.D. Mich. Oct. 6, 2010).
In this case, Plaintiffs argue that Defendant’s application process for a special
use permit improperly grants the licensing authority “unbridled discretion to approve or
reject a billboard as a special land use through an arbitrary decision making process
lacking narrow, objective and definite standards.”1 (Compl. ¶¶ 36-37.)
Both parties delve into the merits of Plaintiff’s claim, discussing at length which
analytical framework applies and how the facts of this case fit into those frameworks.
This analysis, however, is premature. At the “judgment on the pleadings” stage, this

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Despite the unambiguous language of the Complaint that indicates the Plaintiff
is alleging that the special land use provisions of Defendant’s zoning ordinance are
unconstitutional (§ 770-11), Defendant filed its motion to dismiss, arguing that the
Billboard Ordinance (§ 770-57) is constitutionally valid.
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Court accepts all of the Complaint’s factual allegations as true. Plaintiff has stated a
valid claim upon which relief may be granted and Defendant’s motion for judgment on
the pleadings is denied.
IV.

Conclusion

For the foregoing reasons, Defendant’s motion for judgment on the pleadings is
DENIED.

s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: February 17, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of
record on February 17, 2012, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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