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

Readers are encouraged to respond to or criticize this posting.

Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a source that is readily accessible by members of the general public, and should take that fact into account in evaluating confidentiality issues.


DIRT is an internet discussion group for serious real estate professionals. Message volume varies, but commonly runs 5 - 15 messages per work day.

Daily Developments are posted every work day. To subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message signoff DIRT to the address:


for information on other commands, send the message Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only commercial and general real estate matters but also focuses upon residential real estate matters. Because real estate brokers generally find this service more valuable, it is named “BrokerDIRT.” But residential specialist attorneys, title insurers, lenders and others interested in the residential market will want to subscribe to this alternative list. If you subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message signoff BrokerDIRT to the address:


DIRT is a service of the American Bar Association Section on Real Property, Probate & Trust Law and the University of Missouri, Kansas City, School of Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor of Law, UMKC School of Law, but Professor Randolph grants permission for copying or distribution of Daily Developments for educational purposes, including professional continuing education, provided that no charge is imposed for such distribution and that appropriate credit is given to Professor Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:

Members of the ABA Section on Real Property, Probate and Trust Law or of the National Association of Realtors can subscribe to a quarterly hardcopy report that includes all DIRT Daily Developments, many other cases, and periodic reviews of real estate oriented literature and state legislation by contacting Antonette Smith at (312) 988 5260 or asmith4@staff.abanet.org


To be removed from this mailing list, send an email message to listserv@listserv.umkc.edu with the text SIGNOFF DIRT.

Please email manager@listserv.umkc.edu if you run into any problems.
See <http://www.umkc.edu/is/cs/listserv/unsubscribing.htm> for more information.