Daily Development for Tuesday, August 17, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu
note two reports here:
ZONING AND LAND USE; CONSTITUTIONAL LAW; SIGN ORDINANCES: Regulation of
commercial signs does not involve any substantive due process considerations,
and consequently no heightened level of scrutiny need be applied.
Norman Corporation v. City of East Tawas, 2004 Westlaw1737346 (Mich. App.
8/3/04) http://www.michbar.org/opinions/appeals/2004/080304/24055.pdf
Owners of a commercial building sought a variance from a city sign ordinance
that limited the size of an outdoor sign to the smaller of ten percent of the
building’s facade or 100 square feet. The owners argued that the variance was
warranted because, on its face, it improperly differentiated between their
single tenant buildings and multi tenant buildings, which were not subject to as
restrictive a sign limit.
Petitioners relied upon a prior Michigan case, Art Van Furniture v. City of
Kenwood, 437 N.W.2de 380 (Mich. 1989), which had found a similar ordinance
unconstitutional. The trial court agreed, but the court of appeals reversed. The
case was appealed to the Michigan Supreme Court, which remanded to the appeals
court for a determination as to whether the Art Van decision was still good law
in light of a subsequent Michigan Supreme Court decision, Muskegon Area Rental
Ass’n v. City of Muskegon, 636 N.W. 2d 751 (Mich. 2002). The court here
determined that Art Van was erroneous and should be reversed. It pointed out
that Art Vann had been predicated on the notion that substantive due process
concerns were implicated in ordinary zoning decisions, and that therefore a
heightened degree of judicial scrutiny was appropriate. This notion was based
upon a prior decision that had applied such heightened scrutiny to a zoning
ordinance that differentiated between households on the basis of whether they
consisted of related or unrelated individuals. The instant court concluded that
a higher level of scrutiny had been warranted in evaluating the distinction
between households based upon family status because a “substantive due process”
concern had been present there. This concern is different from, but apparently
similar to, the notion of “suspect classification” - distinctions made upon
factors that are protected under the Bill of Rights, such as religion or race.
Sign ordinances of the type involved here do not involved such concerns, and the
court therefore concluded that Art Van should not have applied a heightened
level of scrutiny. It noted that regulation of sign size in general is a
legitimate exercise of the police power, and after that is established the only
question for a reviewing court is whether there is a simple rational basis for
the method chosen to pursue that end. The court concluded that there was a
rational basis for establishing different sign size limits to different classes
of businesses, such as businesses involving one tenant and those involving
multiple tenants.
The court went on to conclude that there was no other basis for a variance, as
the traditional hardship analysis did not apply. This was in part due to the
fact that the petitioner’s problems were self created. It had applied for an
obtained a variance under an earlier ordinance restricting signs to 200 square
feet, but had failed to erect a sign and therefore lost the advantage of that
variance.
Note: The petitioner got some relief, as the zoning board’s interpretation of
its own ordinance was held to be invalid. See entry under “Zoning and Land Use;
Sign Regulation; Area Measurment.”
Comment 1: There is no consideration given by the court to the free speech
implications of its ruling. Apparently where the message is purely commercial,
such as identification of a business, speech rights is not implicated.
Comment 2: The case contains a clear statement, if one is needed, that
aesthetics are a legitimate objective of the police power as aesthetics are part
of the “general welfare.”
ZONING AND LAND USE; SIGN REGULATION; AREA MEASUREMENT: Where sign ordinance
provides that where the size limits on signs are applied to canopy signs, “only
the copy area of the canopy should be identified as sign area used for
calculation purposes, this means, unambiguously, that the volume of the letters
on the sign is to be measured, and the zoning agency cannot assume a geometric
shape surrounding the letters and measure that.”
Norman Corporation v. City of East Tawas, 2004 Westlaw1737346 (Mich. App.
8/3/04) http://www.michbar.org/opinions/appeals/2004/080304/24055.pdf
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