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

Filing 36

ORDER granting in part and denying in part 28 Motion for Summary Judgment. 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 GRANTING IN PART AND DENYING IN PART PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT

This matter comes before the Court on Plaintiff CBS Outdoor, Inc.’s motion for
summary judgment. Plaintiff sought to construct a billboard and Defendant City of
Royal Oak denied Plaintiff’s application. Plaintiff now challenges the constitutionality of
Defendant’s zoning ordinance, specifically alleging that the Special Land Use Ordinance
and application process is a prior restraint on speech when applied to billboards and
that the restrictions on billboards do not advance a substantial governmental interest.
For the reasons set forth below, Plaintiff’s motion is GRANTED in part and DENIED in
part.
I.

Facts
A.

Defendant’s Zoning Ordinance

Defendant’s Zoning Ordinance § 770-2 is entitled “Purpose,” applies to the
zoning ordinance as a whole, and states, in relevant part:

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A. The purpose of this chapter is to promote, protect, regulate, restrict and
provide for the use of land and buildings within the City of Royal Oak; . . . and
to promote public health, safety and welfare.
B. For those purposes set for forth herein, the City is divided into districts.
For each of those districts, regulations are imposed designating the uses for
which buildings or structures shall or shall not be erected or altered, and
designating the trades, industries, and the land uses or activities that shall be
permitted or excluded or subjected to special regulations.
(Id. at § 770-2.)
Defendant’s zoning ordinance establishes that billboards are a special land use
for property zoned general industrial. (Zoning Ordinance § 770-44.)

Billboards are

regulated by Zoning Ordinance § 770-57 (“Billboard Ordinance”), under “Article V.
Special Provisions.” Section 770-49 specifies the intent of the Special Provisions
section, stating:
In addition to the permitted compatible uses contained in this chapter, there
are certain other uses which may be desirable to permit in certain zone
districts. However, due to their potential impact on neighboring land uses
there is a need to regulate them with respect to their use, design and
location. Additional conditions which may be imposed by the Plan
Commission shall be designed to protect natural resources; the health, safety
and welfare as well as the social and economic well being of those who will
use the land use or activity under consideration; residents and landowners
immediately adjacent to the proposed land use and the community as a
whole. It is the intent of this article to provide the regulations necessary to
address such uses and provide the Plan Commission with a set of standards
upon which to make its decision.
(Id. at § 770-49.) The Billboard Ordinance does not have an expressed intent or
purpose specifically in § 770-57, but billboards are part of the “Special Provisions”
section. The Billboard Ordinance regulates the location, spacing, height, and size of
permitted billboards.
Proposed billboards are also subject to Defendant’s special land use application
and permit process. 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. (Id. at § 770-11(B)(1).)

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First, an applicant must submit a special land use application, a site plan, and a fee.
(Id. at § 770-11(A).) If Defendant’s zoning administrator determines that the submission
is complete, he or she forwards the application to the Planning Commission. (Id. at
§ 770-11(B)(2).) The City’s Planning Commission must hold a public hearing prior to
deciding to approve or deny the special land use. (Id. at § 770-11(B)(3).)
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
(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 uses.
(Id. at § 770-11(C)(1)-(7).) Any decision denying a request shall specify the basis for
the denial. (Id. at § 770-11(B)(4).)
B.

Plaintiff’s Billboard

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. (Pl. Mot. Summ J. Ex. E.) Defendant informed
Plaintiff that it must submit a special land use application, a site plan, and a $1500 fee in
order to obtain a permit to erect a billboard. Plaintiff submitted the required materials
and fee. (Pl. Mot. Summ J. Ex. C.) Defendant’s planning department reviewed the site
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plan and informed the Planning Commission that the proposed billboard meets or
exceeds the standards under the Billboard Ordinance. (Pl. Mot. Summ J. Ex. D.)
At a public hearing on August 9, 2011, however, the Planning Commission
denied Plaintiff’s special land use permit. (Def. Resp. Ex. A.) 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.
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.
(Pl. Mot. Summ J. Ex. E.) The motion to deny Plaintiff the special land use permit was
adopted unanimously. (Id.)
Defendant prohibited Plaintiff from erecting its proposed billboard by refusing to
grant a special land use permit. (Id.) The Planning Commission made no statements
that it contested the planning department’s determination that Plaintiff’s proposed
billboard meets or exceeds all requirements under the Billboard Ordinance. (Id.)
II.

Standard
“The court shall grant summary judgment if the 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). A moving party may meet that burden “by

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‘showing’ – that is, pointing out to the district court -- that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). Revised Rule 56 expressly provides that:
A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). The revised Rule also provides the consequences of failing to
properly support or address a fact:
If a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the court
may:
(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting
materials – including the facts considered undisputed – show
that the movant is entitled to it; or
(4) issue any other appropriate order.
Fed. R. Civ. P. 56(e). “The court need consider only the cited materials, but it may
consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).
When the moving party has met its burden under Rule 56, “its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Ultimately
a district court must determine whether the record as a whole presents a genuine issue
of material fact, drawing “all justifiable inferences in the light most favorable to the nonmoving party.” Hager v. Pike Cnty. Bd. Of Educ., 286 F.3d 366, 370 (6th Cir. 2002).
III.

Analysis

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Plaintiff alleges two counts against Defendant: (1) the special land use ordinance
and application process, when applied to billboards, are an unconstitutional prior
restraint on speech and (2) Defendant’s restrictions on billboards are unconstitutional
because they do not advance a substantial governmental interest. Defendant refutes
the substance of Plaintiff’s claims and also argues that Plaintiff’s claims should be
dismissed as moot.
A.

Mootness

Defendant argues that Plaintiff’s claims are moot because the owner of the
property where Plaintiff sought to erect its billboard was previously granted a variance to
allow for the installation and operation of a storage business. In the agreement with
Defendant, the property owner accepted a number of conditions, one of which
Defendant argues prevents any attempt to leave part of the property for advertising.
It is well established that a plaintiff has standing to challenge a statute on the
ground that it delegates overly broad licensing discretion to an administrative office,
whether or not he has applied for a license. R.S.W.W., Inc. v. City of Keego Harbor,
397 F.3d 427, 436 (6th Cir. 2005). Ripeness analysis is relaxed for First Amendment
cases involving a facial challenge to a regulation because courts see a need to prevent
the chilling of expressive activity. Currence v. City of Cincinnati, 28 F. App'x 438, 441
(6th Cir. 2002).
Plaintiff did not need to apply for a land-use permit for its billboard before
bringing this case. The fact that there is a legitimate reason that Plaintiff cannot erect a
billboard in the specific location it chose in its application does not prevent Plaintiff from
bringing a facial challenge against the permit process. Plaintiff’s claims are not moot.
B.

Prior Restraint

When a plaintiff challenges an ordinance as facially unconstitutional, there are

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two separate frameworks that can be applied. In Freedman v. Maryland, the Supreme
Court determined that a facial challenge exists whenever a licensing law gives a
government official or agency substantial power to discriminate based on the content or
viewpoint of speech by suppressing disfavored speech or disliked speakers. Freedman
v. Maryland, 380 U.S. 51, 58-59 (1965); see also City of Lakewood v. Plain Dealer
Publ'g Co., 486 U.S. 750, 759 (1988). An ordinance cannot place “unbridled discretion
in the hands of a government official or agency.” FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 225 (1990). To avoid granting such unbridled discretion, ordinances must
contain precise and objective criteria on which the government official or agency must
make their decisions and an ordinance that gives too much discretion to public officials
is invalid. The second prong of the Freedman analysis is that the ordinance must set
time limits on the decisionmaker, or there is a risk of indefinitely suppressing
permissible speech. Id.
The Supreme Court has determined, however, that the Freedman framework
does not apply to content-neutral, “time, place, and manner” restrictions. Thomas v.
Chicago Park Dist., 534 U.S. 316, 322 (2002). A content-neutral permit scheme: (1)
must not be based on the content of the message, (2) must be narrowly tailored to
serve a significant governmental interest, and (3) must leave open ample alternatives
for communication. Id. Even content-neutral restrictions, however, can be applied in
such a manner as to stifle free expression. The Supreme Court determined that “where
the licensing official enjoys unduly broad discretion in determining whether to grant or
deny a permit, there is a risk that he will favor or disfavor speech based on its content.”
Thomas, 534 U.S. at 323; see Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123,
131 (1992). Time, place, and manner regulations must contain adequate standards to
guide the official's decision and render it subject to effective judicial review. Id.

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In this case, Plaintiff argues that the application process for the special use
permits lack the requisite guiding standards.1 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,
493 U.S. at 225; Thomas, 534 U.S. at 316; Forsyth Cnty., 505 U.S. at 131. Numerous
courts, including the Sixth Circuit, have applied the prior restraint doctrine to sign and
billboard licensing schemes as well as other types of zoning ordinances. H.D.VGreektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir. 2009).
The Eastern District of Michigan 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 Enters., Inc. v. Thomas Twp., 215 F. Supp. 2d 891 (E.D.
Mich. 2002) (Lawson, J.); Macdonald Adver. 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. 09CV-1016, 2010 WL 3942842 (W.D. Mich. Oct. 6, 2010).
In International Outdoor, the court examined an ordinance that required a
billboard proposal to satisfy the ordinance’s general standards. These standards
included a requirement that the use “be in harmony with the appropriate and orderly
development of the surrounding neighborhood,” that “[t]he proposed use shall relate
harmoniously with the physical and economic aspects of adjacent land uses,” that “[t]he
proposed use is so designed, located, planned and to be operated that the public
health, safety and welfare will be protected” and that “[t]he proposed use shall not be

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Plaintiff argues that the Freedman framework should apply and Defendant
argues that the Thomas framework should apply.
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detrimental or injurious to the neighborhood . . . and shall be in harmony with the
general purpose and intent of the Zoning Ordinance.” Int’l Outdoor, 2008 WL 4792645,
at *9. The Romulus court found that the ordinance criteria were ambiguous and
arbitrary and did not qualify as the “narrow, objective, and definite standards” required
by the Supreme Court. Id.
In MacDonald Advertising, the court examined an ordinance requiring that
proposed constructions “will not unreasonably injure the surrounding neighborhood . . .
and that any proposed [construction] shall not be out of harmony with the predominant
type of building in the particular district.” 916 F.Supp. at 650. The MacDonald court
found that “there is nothing in the ordinance ‘standards' which insures that the
Commissioners' discretionary licensing decision will not be based on speech content.
Therefore, the ordinance is facially invalid.” Id.
Similarly, in CBS Outdoor v. City of Kentwood, the court examined a zoning
ordinance that required a determination of whether; (1) the application “preserves the
health, safety, and welfare of the public, and is in harmony with the general purpose and
intent of this ordinance,” (2) the request “may have a substantial and permanent
adverse effect on neighboring property, ” (3) it “is generally aesthetically compatible with
its surroundings,” and (4) it will “act as a detriment to adjoining property, act as an
undue distraction to traffic on nearby streets, or detract from the aesthetics of the
surrounding area.” The Kentwood court found that the provisions of the zoning
ordinance were unconstitutional because they conveyed broad discretion on the
Planning Commission without any objective limits as a check against denial based
solely upon the content of the speech of the applicant. Kentwood, 2010 WL 3942842,
at *9 (finding the provisions “not narrowly drawn and bereft of any standards that are
even arguably objective”).

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In this case, Plaintiff argues that the special land use provisions of the zoning
ordinance grant Defendant unbridled discretion to approve or reject a billboard through
an arbitrary decision-making process that lacks narrow, objective, and definite
standards. The language of the ordinance specifically states that a special land use
permit “may be granted by the Planning Commission at its discretion.” In deciding to
approve or deny a special land use, the Planning Commission considers whether it:
(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
(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.
As in the cases above, the vague, ambiguous, and arbitrary “standards” in this
case do not qualify as “narrow, objective, and definite standards” required by the
Supreme Court.
Defendant’s special land use permit, when applied to billboards, is an
unconstitutional prior restraint on speech. Plaintiff’s motion for summary judgment on
Count I is GRANTED.
C.

Significant Government Interest

To be constitutional, a time, place, and manner regulation must; (1) “not be
based on the content of the message,” (2) “be narrowly tailored to serve a significant

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governmental interest,” and (3) “leave open ample alternatives for communication.”
Thomas, 534 U.S. at 323 n.3; Clark v. Comm. for Creative Non-Violence, 468 U.S. 288,
293 (1984). In this case, the restrictions in § 770-57 have no censorial purpose, as they
are both viewpoint- and content-neutral and regulate only the non-expressive
components of billboards; the location, spacing, size, and height. See Prime Media,
Inc. v. City of Brentwood, Tennessee, 398 F.3d 814, 819 (6th Cir. 2005).
Plaintiff argues, however, that the Billboard Ordinance is unconstitutional
because it lacks a statement of purpose and therefore cannot advance a government
interest, since no interest is specified. In its response brief, Defendant states that it has
significant government interest in protections for safety, traffic flow, aesthetic
appearance and harmony. (Def. Resp. 9, 10.)
Aesthetics and safety are legitimate governmental interests. Metromedia, Inc. v.
City of San Diego, 453 U.S. 490, 507-08 (1981). A court, however, will not take judicial
notice of an unstated and unexplained legislative purpose for an ordinance that restricts
speech. Nat’l Adver. Co. v. Town of Babylon, 900 F.2d 551, 555-56 (2d Cir. 1990).
The statement of purpose of the zoning ordinance as a whole, in § 770-2, states
that “limit[ing] the inappropriate overcrowding of land and congestion of the population
and transportation systems” and “promot[ing] public health, safety and welfare” are
among its purposes. The zoning ordinance, in § 770-3 also states, “In interpreting and
applying the provisions of this chapter, the requirements shall be held with the intended
purpose to be for the promotion of the public health, safety, convenience, comfort,
prosperity and general welfare.” Defendant argues this is sufficient to establish the
legitimate government purpose of traffic and safety in regulating the billboards in § 77057. Plaintiff argues that these do not state the specific intent or purpose of the specific
billboard regulations.

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The zoning ordinance does not list any separate or specific intent or purpose for
the regulations on billboards, apart from the generic statements above. The billboard
regulations are part of the zoning ordinance, however, and the purpose stated for the
zoning ordinance as a whole apply just as readily to its parts. Defendant here states
that traffic safety, aesthetics, and harmony are the intentions behind its billboard
regulations, and has shown that those are stated purposes in the zoning ordinance, in
which the billboard regulations are included.
In International Outdoor, the court rejected the defendant’s argument that the
broad statement of purpose in the zoning ordinance applied to its billboard restrictions.
In that case, however, the City of Romulus regulated billboards in a sign ordinance, not
the zoning ordinance, the sign ordinance had no stated purpose, and the defendant
argued that the zoning ordinance purpose should be imputed to the sign ordinance.
Int’l Outdoor, 2008 WL 4792645, at *8. In this case, the billboard regulations are part of
the zoning ordinance and so its purpose is rightfully applied.
The question becomes whether the regulations are narrowly tailored to serve that
legitimate government interest. A time, place, and manner regulation does not need to
be the least restrictive or least intrusive means, but it “may not burden substantially
more speech than is necessary to further the government's legitimate interests.
Government may not regulate expression in such a manner that a substantial portion of
the burden on speech does not serve to advance its goals.” Ward v. Rock Against
Racism, 491 U.S. 781, 798 (1989). As long as the means are not substantially broader
than necessary to achieve the government interest, the regulation will not be invalid. Id.
at 800.
The Sixth Circuit examined this exact issue and determined:
What Prime Media seems to demand is evidence establishing something akin
to what the district court required, an explanation of why the regulation limits
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billboards to less than six feet in height and 120 square feet in size, as
opposed to some greater height or size increment. While Prime Media is right
to insist that governments be forced to weigh the costs and benefits of
regulating speech and be forced to do so more rigorously than in other areas
of legislation, we do not think the Supreme Court's cases (or our own)
impose such a stringent duty of calibration-at least in the context of a
content-neutral time, place and manner restriction. . . . To ask 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 well-equipped to second guess.
Prime Media, 398 F.3d at 823-24. The same reasoning in Prime Media applies here.
This Court finds that the size, height, and location requirements that Defendant
enacted are narrowly tailored to its legitimate goals of aesthetics, traffic flow, and safety.
The restrictions leave open ample alternatives for communication and this Court finds
that Defendant has satisfied its burden. Plaintiff’s motion for summary judgment on
Count II is DENIED.
IV.

Conclusion

For the foregoing reasons, Plaintiff’s motion for summary judgment is GRANTED in part
and DENIED in part.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: August 29, 2012

I hereby certify that a copy of the foregoing document was served upon counsel of
record on August 29, 2012, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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