International Outdoor Inc v. City of Livonia

STATE OF MICHIGAN

COURT OF APPEALS

INTERNATIONAL OUTDOOR, INC., UNPUBLISHED

June 14, 2016

Plaintiff-Appellant,

v No. 325243

Wayne Circuit Court

CITY OF LIVONIA, LC No. 14-008996-CZ

Defendant-Appellee.

Before: MURRAY, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

Plaintiff, International Outdoor, Inc., is in the business of selling advertising space on

billboards. Defendant, the city of Livonia, denied plaintiff’s permit application to erect a

billboard in defendant’s city limits, and defendant’s zoning board of appeals denied plaintiff’s

request for a variance from the city’s zoning ordinance provisions banning new billboards.

Subsequently, plaintiff filed this action in the Wayne Circuit Court, challenging defendant’s

ordinance on the basis that (1) it resulted in impermissible exclusionary zoning under both the

Michigan Zoning Enabling Act (“ZEA”), MCL 125.3101 et seq., and the common law, and (2) it

violated plaintiff’s right to equal protection under the law. The trial court granted defendant’s

motion for summary disposition. Plaintiff appeals as of right. We affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Since 1952, defendant’s zoning ordinance has prohibited the installation of any off-

premises billboard within the city. Billboards that existed when the ordinance was enacted were

allowed to remain, but the last of those billboards was eliminated in 1986.

In particular, § 18.16 of the zoning ordinance provides:

The erection and maintenance of billboards and outdoor advertising signs on any

parcel of land within the City of Livonia, or the use of any such parcel for said

purpose, are hereby prohibited; provided, however, that this section shall not

apply to billboards or outdoor advertising signs lawfully in existence at the time

this ordinance becomes effective, nor to those specific signs which are expressly

allowed by the district regulations contained in this ordinance.

Section 18.50C, the provision specifically challenged by plaintiff, states:

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Section 18.50C Prohibited Signs. . . . A sign not expressly permitted in a

zoning district is prohibited. The following signs as defined in Section 18.50A of

this ordinance shall not be permitted and are expressly prohibited in any zoning

district:

* * *

2. “Billboards”

Section 18.50A of defendant’s zoning ordinance defines a “billboard” as “[a] ground sign

advertising a product, event, person, business or subject not related to the premises on which the

sign is located.” Thus, a “billboard” is an “off-premises” sign—one that advertises a product not

available at the location on which the sign is located. “On-premises” signs are permitted so long

as they meet certain site requirements.

Additionally, defendant’s sign ordinances generally permit two types of signs outside of

buildings: (1) wall signs, the maximum area of which are determined by the building’s frontage

on the adjoining street, and (2) grounds signs, which are generally limited to a height of no more

than six feet, measured from the ground, and 30 square feet in area.

In December 2013, plaintiff filed a permit application to erect a billboard on leased

property adjacent to the I-96 expressway. The application was denied because defendant did not

allow billboards within its boundaries and the desired sign was too large to be permitted as a

freestanding sign under the zoning ordinance. The zoning board of appeals denied plaintiff’s

subsequent request for a variance.

In July 2014, plaintiff filed a complaint in the circuit court, alleging that defendant’s

ordinance completely excluded an otherwise permissible use of land, was contrary to plaintiff’s

right to equal protection under the state and federal constitutions, and amounted to impermissible

exclusionary zoning in violation of MCL 125.3207 and the common law. Defendant moved for

summary disposition, arguing, inter alia, that (1) the ordinance was properly enacted to promote

aesthetic qualities and traffic safety and, therefore, was reasonably related to the health, safety, or

general welfare of the community; (2) as a city-wide ban on all new billboards, the ordinance did

not treat plaintiff differently than any other similarly situated person or entity; and (3) plaintiff

failed to establish a demonstrated need for billboards within defendant’s boundaries.

The trial court granted defendant’s motion, concluding that plaintiff failed to demonstrate

a need for billboards within defendant’s city limits because of the “umpteen billboards that

surround this area,” and that plaintiff’s constitutional challenges lacked merit because

defendant’s concerns for traffic safety and aesthetics were reasonably related to the ordinance’s

purpose.

II. STANDARD OF REVIEW

We review de novo a trial court’s grant or denial of summary disposition. Moraccini v

Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012). Defendant moved for summary

disposition under MCR 2.116(C)(8) and (10). “A motion for summary disposition under MCR

2.116(C)(8) tests the legal sufficiency of the complaint,” Johnson v Pastoriza, 491 Mich 417,

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434-435; 818 NW2d 279 (2012), and a court may consider only the pleadings in reviewing the

motion, Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). However, “[a] motion

under MCR 2.116(C)(10) tests the factual sufficiency of the complaint,” and the court may

consider documentary evidence submitted by the parties when considering the motion. Cannon

Twp v Rockford Pub Sch, 311 Mich App 403, 411; 875 NW2d 242 (2015). Although the trial

court did not explain whether it granted summary disposition under one or both of these subrules,

it is clear from the trial court’s statements on the record that it considered information outside of

the pleadings. Thus, we will consider the motion as being granted under MCR 2.116(C)(10).

Hughes v Region VII Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007).

When reviewing a motion for summary disposition pursuant to MCR 2.116(C)(10), we

may only consider, in the light most favorable to the party opposing the motion, the evidence that

was before the trial court, which consists of “the ‘affidavits, together with the pleadings,

depositions, admissions, and documentary evidence then filed in the action or submitted by the

parties.’ ” Calhoun Co v Blue Cross Blue Shield Michigan, 297 Mich App 1, 11; 824 NW2d 202

(2012), quoting MCR 2.116(G)(5). Under MCR 2.116(C)(10), “[s]ummary disposition is

appropriate if there is no genuine issue regarding any material fact and the moving party is

entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480 Mich 105, 111; 746

NW2d 868 (2008). “There is a genuine issue of material fact when reasonable minds could

differ on an issue after viewing the record in the light most favorable to the nonmoving party.”

Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

Additionally, this Court reviews equal protection challenges to zoning ordinances de

novo. Houdek v Centerville Twp, 276 Mich App 568, 573; 741 NW2d 587 (2007).

III. ANALYSIS

Although framed as only two issues on appeal, plaintiff actually raises three separate

claims: (1) defendant’s zoning ordinance violates Michigan common-law principles that a

municipalty may not wholly prohibit a lawful business or lawful land use; (2) defendant’s zoning

ordinance violates the equal protection clause of Michigan’s Constitution; and (3) defendant’s

zoning ordinance violates Michigan’s statutory prohibition against exclusionary zoning under

MCL 125.3207. As explained infra, plaintiff’s first and second arguments are interconnected.

We reject all of plaintiff’s claims.

A. EXCLUSIONARY ZONING UNDER MICHIGAN COMMON LAW PRINCIPLES

Plaintiff first argues that the trial court erred in granting summary disposition of its

common-law claim for exclusionary zoning,1 which is based on its contention that defendant’s

1

In reviewing this claim, we assume, without deciding, that common-law claims concerning

exclusionary zoning are still viable following the adoption of the ZEA. See MCL 125.3207

(governing when a zoning ordinance or decision may not have the effect of completely

prohibiting a land use within a city or other local unit of government). There is a question of

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ban on new billboards violates the equal protection clause of the Michigan Constitution, Const

1963, art 1, § 2. We disagree.

The essence of plaintiff’s claim is that “Section 18.50C of Livonia’s zoning ordinance

violates a simple rule: ‘We know from our precedents that a community cannot effectively zone

out legal businesses.’ Truckor v Erie Twp, 283 Mich App 154, 164; 771 NW2d 1 (2009).” In

Truckor, a case reviewing plaintiffs’ claims that an adult entertainment ordinance violated their

First Amendment right to free speech, this Court stated:

We know from our precedents that a community cannot effectively zone

out legal businesses. For example, in City of Ferndale v Ealand (On Remand), 92

Mich App 88, 90; 286 NW2d 688 (1979), the city of Ferndale enacted an

ordinance allowing for the operation of adult businesses in a C-2 district so long

as it was not within 1,000 feet of any residential type dwelling, but allowing for a

waiver of the footage requirement under certain circumstances. At the trial held

on the plaintiff’s equal protection claim, a city building inspector testified that no

location within the C-2 district met the ordinance requirements. Id. at 90-91.

Relying on Young, supra, and Nortown Theatre Inc v Gribbs, 373 F Supp 363,

369-370 (ED Mich, 1974), this Court held the ordinance to be a violation of the

equal protection clause because “ ‘the effect of the restriction is an almost total

ban on uses conceded by the Defendants to be lawful.’ ” Ealand, supra at 93,

quoting Nortown, supra at 369-370. This Court also rejected the city’s argument

that the waiver would provide sufficient flexibility to uphold its constitutionality.

Ealand, supra at 94. [Truckor, 283 Mich App at 164-165.]

In addition to Truckor, plaintiff cites numerous cases concerning various types of businesses and

land uses, ultimately concluding from this caselaw that “local government cannot suppress what

the state promotes or permits,” and, thus, § 18.50C is invalid because it bans a land use that the

state recognizes as legal or legitimate.

To demonstrate that Michigan law recognizes billboard advertising as a legal and

legitimate land use, plaintiff relies on § 3 of the Highway Advertising Act of 1972 (“HAA”),

MCL 252.301 et seq., which provides:

To improve and enhance scenic beauty consistent with section 131 of title

23 of the United States Code, 23 USC 131, and to limit and reduce the illegal

possession and use of tobacco by minors, the legislature finds it appropriate to

regulate and control outdoor advertising and outdoor advertising as it pertains to

tobacco adjacent to the streets, roads, highways, and freeways within this state

and that outdoor advertising is a legitimate accessory commercial use of private

property, is an integral part of the marketing function and an established segment

of the economy of this state. [MCL 252.303.]

whether that is the case in light of Hendee v Putnam Twp, 486 Mich 556, 565-566; 786 NW2d

521 (2010).

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Accordingly, given Michigan caselaw in conjunction with this statute, plaintiff reasons that

“[u]nder Michigan law, no municipality can declare itself a billboard free community.”

First, plaintiff’s dependence on MCL 252.303 as a means of demonstrating that

defendant’s ordinance impermissibly prohibits a commercial activity permitted and endorsed by

the state is undercut by § 4 of the HAA, which recognizes that ordinances that were already in

existence in 1972 are not invalidated by the Legislature’s adoption of the HAA:

This act regulates and controls the size, lighting, and spacing of signs and

sign structures in adjacent areas and occupies the whole field of that regulation

and control except for the following:

* * *

(c) An ordinance or code of a city, village, township, or charter township

that existed on March 31, 1972 and that prohibits signs or sign structures is not

made void by this act. [MCL 252.304(c).]

Plaintiff contends that § 18.50C, in its current form, was not implemented until 1978.

The 1978 enactment was one of many amendments to, and recodifications of, the 1952 version

of the ordinance.2 It is undisputed that defendant’s zoning ordinance has banned new billboards

continuously since 1952, and § 4.16 of the zoning ordinance approved in 1952 includes language

identical to § 18.16 of the successor and current version of defendant’s zoning ordinance.3 Thus,

it is clear defendant’s prohibition of new billboards was in effect when MCL 252.303 was

adopted in 1972. Accordingly, we are not persuaded that the language of MCL 252.303 and the

rest of the HAA, to the extent that it permits and promotes outdoor commercial signage,

demonstrates that defendant’s prohibition of new billboards conflicts with the Michigan caselaw

cited by plaintiff, as MCL 252.304(c) plainly recognizes the possibility that ordinances

prohibiting signs or structures will remain valid following the enactment of the HAA. Therefore,

plaintiff has failed to demonstrate, through its reliance on the HAA, that defendant’s ordinance

conflicts with state law.

Further, plaintiff has failed to show that the ordinance does, in fact, “zone out” a legal

business in contravention of Michigan caselaw. See Truckor, 283 Mich App at 164-165. The

ban on erecting new billboards does not prevent advertisers who use billboards in their course of

business from soliciting and serving clients with businesses within defendant’s jurisdiction or

2

Based on our review of defendant’s municipal code, it appears that its original zoning

ordinance, Ordinance No. 60, was recodified before the late 1960s through the enactment of

Ordinance No. 543. Subsequently, individual articles and sections of the zoning ordinance have

been amended on numerous occasions.

3

It appears that § 18.16 was enacted in its current form when the zoning ordinance was

recodified before the late 1960s.

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performing the day-to-day operations of their businesses within defendant’s city limits. It only

prohibits the actual construction of new billboards inside defendant’s borders.

Likewise, we are not persuaded that the cases cited by plaintiff on appeal compel a

finding that defendant’s ordinance impermissibly “ ‘zone[s] out’ lawful activities” in this case.

These cases recognize, despite plaintiff’s selective pincites in its brief, that municipalities may

enact reasonable zoning regulations that prohibit lawful land uses as long as they are reasonably

related to the public health, safety, morals, or general welfare. See, e.g., Bzovi v City of Livonia,

350 Mich 489, 492; 87 NW2d 110 (1957); Gust v Canton Twp, 342 Mich 436, 438-439, 442; 70

NW2d 772 (1955); Mooney v Village of Orchard Lake, 333 Mich 389, 393; 53 NW2d 308

(1952).4 We find especially noteworthy the fact that one of the cases quoted by plaintiff

specifically states that a city may prohibit the construction of billboards within its borders:

The city may establish zones and prohibit the erection of billboards

therein and may, to promote public health, safety, and general welfare, within

reasonable considerations, regulate the maintenance of billboards, but may not

arbitrarily strike down the maintenance of erected billboards or vest such power

of arbitrary action in municipal officers. [Wolverine Sign Works v City of

Bloomfield Hills, 279 Mich 205, 208; 271 NW 823 (1937) (emphasis added).]

Most significantly, plaintiff relies on Central Advertising Co v City of Ann Arbor, 391

Mich 533, 536; 218 NW2d 27 (1974), and Central Advertising Co v St Joseph Twp, 125 Mich

App 548, 555; 337 NW2d 15 (1983), as support for its ultimate conclusion that “[u]nder

Michigan law, no municipality can declare itself a billboard free community.” In City of Ann

Arbor, 391 Mich at 536, the Michigan Supreme Court stated, “Neither the Home Rule Act nor

the Charter of the City authorizes the Council to eliminate billboards. In combination, the

various restrictions, tantamount to a proscription of billboards, exceed the authority of the

Council under the Home Rule Act and Charter.” Similarly, relying on City of Ann Arbor, 391

Mich at 536, and Superior Twp v Reimel Sign Co, 362 Mich 481, 482; 107 NW2d 808 (1961),

this Court held in St Joseph Twp, 125 Mich App at 555, that “[a]lthough defendant has authority

to regulate advertising signs, it does not have the power to prohibit them in totality.”

In light of more-recent case law limiting the holding of City of Ann Arbor, 391 Mich 533,

we disagree with plaintiff’s contention that Michigan “common law” generally prohibits

4

We reject plaintiff’s reliance on National Amusement Co v Johnson, 270 Mich 613, 616; 259

NW 342 (1935) (stating that “in the absence of specific statutory or charter power in the

municipality, the provisions of an ordinance which contravene a state law are void. What the

Legislature permits, the city cannot suppress, without express authority therefor”) (citations

omitted), for the proposition that “local government cannot suppress what the state promotes or

permits.” Plaintiff fails to recognize that, through subsequent constitutional and statutory

developments, “[o]ur municipal governance system has matured to one of general grant of rights

and powers, subject only to certain enumerated restrictions instead of the earlier method of

granting enumerated rights and powers definitely specified.” City of Detroit v Walker, 445 Mich

682, 690; 520 NW2d 135 (1994).

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defendant’s ordinance in this case. In Adams Outdoor Advertising, Inc v City of Holland, 234

Mich App 681, 689-690; 600 NW2d 339 (1999), aff’d 463 Mich 675 (2001), we explained:

Plaintiff’s misinterpretation of our constitution and the Home Rule City

Act is based largely on language contained in Central Advertising Co v Ann

Arbor, 391 Mich 533, 218 NW2d 27 (1974). In an opinion that preceded both

Adams Outdoor Advertising [v East Lansing, 439 Mich 209; 483 NW2d 38

(1992),] and Detroit v Walker, [445 Mich 682, 687-690, 520 NW2d 135 (1994),]

the Supreme Court declared that “[i]n the guise of regulation, the City Council of

Ann Arbor has proscribed billboards altogether.” Central Advertising, supra at

536. In Central Advertising, the Court held that the City of Ann Arbor’s

proscription of all billboards, both new and existing, violated the Home Rule City

Act. Because this holding has not been overruled, we continue to follow it.

Nevertheless, the rationale for the Central Advertising holding has been

superseded by the subsequent Supreme Court decisions in Adams Outdoor

Advertising and Detroit v Walker. Specifically, the restricted construction of

home rule authority accepted by the Supreme Court in Central Advertising has

now been firmly rejected. In addition, the Supreme Court in Central Advertising

appears to have relied on De Mull [v City of Lowell, 368 Mich 242; 118 NW2d

232 (1962),] in support of its decision under the Home Rule City Act. However,

in Adams Outdoor Advertising, supra at 218, the Supreme Court limited the scope

of De Mull, holding that it had no bearing on the Home Rule City Act. For these

reasons, we limit Central Advertising to its facts and narrow holding.

Defendant argues that the present case is not controlled by Central

Advertising because defendant’s ordinance does not proscribe all billboards. We

agree. Although new billboards are banned and existing billboards are deemed

nonconforming, defendant’s ordinance provides that “signs may be maintained

and repaired so as to continue the useful life of the sign.” In this important

respect, the city of Holland ordinance is distinguishable from the ordinance at

issue in Central Advertising. [Emphasis added.]

Later, in affirming our opinion in City of Holland, 234 Mich App 681, the Michigan Supreme

Court stated:

Moreover, on its face, the challenged ordinance sections do not currently

completely prohibit billboards in Holland. While new billboards are banned,

current billboards may remain. Section 39-350(b) specifically permits a billboard

owner to maintain and repair existing signs so as to continue their useful life.

Also, § 39-350(e) authorizes a billboard owner to remove a sign from its location

for repair and maintenance and then to replace it.

Therefore, we hold that, although the ordinance sections do limit the

number of billboards within the city, they do not constitute an impermissible total

prohibition of billboards. See Ann Arbor, supra; Mount Elliott Cemetery Ass’n,

supra at 407; Gustafson v City of Lake Angelus, 76 F3d 778, 790 (CA 6, 1996),

cert den 519 US 823, 117 S Ct 81, 136 L Ed 2d 39 (1996); Guy, supra at 785.

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[Adams Outdoor Advertising, Inc v City of Holland, 463 Mich 675, 685; 625

NW2d 377 (2001) (footnote omitted).]

In a footnote, the Supreme Court noted:

We note plaintiff’s contention that, with the passage of time, the ordinance might

effectively eliminate all billboards. If that eventuality arises, our opinion should

not be construed as foreclosing an “as applied” challenge to the ordinance.

However, we need not address that contention because the present case involves a

facial challenge to the validity of the ordinance sections under consideration. [Id.

at 685 n 11.]

Here, defendant’s zoning ordinance is analogous to the ordinance at issue in City of

Holland, as it does not constitute a total prohibition on billboards on its face. Although §18.50C

and § 18.16 prohibit the erection and maintenance of billboard signs in all zoning districts, §

18.16 specifically provides that the prohibition does “not apply to billboards or outdoor

advertising signs lawfully in existence at the time this ordinance becomes effective, nor to those

specific signs which are expressly allowed by the district regulations contained in this

ordinance.” Thus, we conclude that City of Holland, not City of Ann Arbor and St Joseph

Township, is controlling in this case. As a result, we reject any facial challenge to defendant’s

ban on new billboards based on the line of caselaw cited by plaintiff on appeal.

Further, to the extent that this case may comprise the “eventuality” recognized by the

Michigan Supreme Court in City of Holland, 463 Mich at 685 n 11, in light of the fact that all

Livonia billboards lawfully in existence when defendant’s ordinance was enacted have now been

removed, and to the extent that plaintiff arguably raised an as-applied challenge in addition to its

facial challenges to the ordinance,5 we find that plaintiff has failed to establish such a claim. As

demonstrated by plaintiff’s reliance on Truckor, 283 Mich App at 164-165, as well as its briefing

of this issue in the trial court and on appeal, plaintiff’s “common law” exclusionary zoning claim

is intertwined with its constitutional equal protection claim, discussed infra. See also Kropf v

5

Notably, plaintiff characterized its claims as facial challenges in its response to defendant’s

motion for summary disposition. Likewise, it expressly rejects on appeal the trial court’s

characterization of its claims as as-applied challenges to the ordinance, stating, “The circuit

court’s determination that [plaintiff’s] challenge was ‘as applied’ is inexplicable.” Despite the

trial court’s characterization of plaintiff’s complaint as solely raising as-applied claims, it

appears that plaintiff’s complaint raised both facial and as-applied challenges to defendant’s

ordinance. See Paragon Properties Co v City of Novi, 452 Mich 568, 576; 550 NW2d 772

(1996) (distinguishing between facial and as-applied challenges); Jott, Inc v Charter Twp of

Clinton, 224 Mich App 513, 525; 569 NW2d 841 (1997) (“A facial challenge is one that attacks

the very existence or enactment of the ordinance; it alleges that the mere existence and

threatened enforcement of the ordinance adversely affects all property regulated in the market as

opposed to a particular parcel.”). However, it appears that plaintiff abandoned its as-applied

claims on appeal given its failure to make any argument in that regard and its explicit repudiation

of the trial court’s characterization of its claims as being “as applied.”

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Sterling Heights, 391 Mich 139, 155-156; 215 NW2d 179 (1974) (“On its face, an ordinance

which totally excludes from a municipality a use recognized by the Constitution or other laws of

this State as legitimate also carries with it a strong taint of unlawful discrimination and a denial

of equal protection of the law as to the excluded use.”) (emphasis added); Countrywalk

Condominiums, Inc v City of Orchard Lake Village, 221 Mich App 19, 23-24; 561 NW2d 405

(1997) (citing Kropf and its progeny; stating that an ordinance completely excluding a land use is

not presumed valid, but “will be declared valid if the exclusion has a reasonable relationship to

the health, safety, or general welfare of the community”; and describing the burden of proof

during such a challenge); City of Ferndale v Ealand, 92 Mich App 88, 90-91; 286 NW2d 688

(1979) (cited in Truckor), citing Kropf, 391 Mich 139. Therefore, even if plaintiff’s common

law exclusionary zoning claim comprises a challenge recognized by the Michigan Supreme

Court in City of Holland, 463 Mich at 685 n 11, it fails for the reasons discussed later in this

opinion.

Thus, the trial court properly granted summary disposition in favor of defendant with

regard to plaintiff’s claim of exclusionary zoning under Michigan “common law.”

B. EQUAL PROTECTION

Next, plaintiff contends that defendant’s ban on new billboards is exclusionary and

violates the Equal Protection Clause of Michigan’s Constitution because defendant failed to

demonstrate that the ordinance advances a legitimate governmental interest. We disagree.

“The state and federal constitutions guarantee equal protection of the laws. US Const,

Am XIV; Const 1963, art 1, § 2; In re Hawley, 238 Mich App 509, 511; 606 NW2d 50 (1999).”

Landon Holdings, Inc v Grattan Twp, 257 Mich App 154, 173; 667 NW2d 93 (2003). “The

essence of an equal protection claim is discrimination based on characteristics not justifying

different treatment.” Id. at 176. Zoning ordinances are usually presumed valid, id. at 174, and

“[w]hen no suspect or somewhat suspect classification can be shown, the plaintiff has the burden

of establishing that the statute is arbitrary and not rationally related to a legitimate governmental

interest.” Id. at 173. See also Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 486

Mich 311, 318-319; 783 NW2d 695 (2010); Houdek, 276 Mich App at 573-574 (“In regard to an

equal protection challenge to a governmental regulation, a two-part test is to be applied: (1) Are

the enactment’s classifications based on natural distinguishing characteristics and do they bear a

reasonable relationship to the object of the legislation? (2) Are all persons of the same class

included and affected alike or are immunities or privileges extended to an arbitrary or

unreasonable class while denied to others of like kind?”) (quotation marks and citation omitted).

However, under Kropf, 391 Mich 155-156, a zoning ordinance that totally excludes a

particular use recognized by Michigan law is not presumed valid, and the burden shifts to the

defendant to establish the reasonableness of the ordinance. Landon Holdings, 257 Mich App at

174-176. When the burden shifts, the standard for an “equal protection claim remain[s] the

same; the ordinance must reasonably advance a legitimate governmental interest.” Id. at 174,

citing Kropf, 391 Mich at 158. See also Houdek, 276 Mich App at 573-574 (further describing a

plaintiff’s burden in raising a facial challenge).

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In this case, defendant demonstrated that the intent of § 18.50C, as well as its intent with

regard to other sign restrictions, is expressed in § 18.50 of the zoning ordinance, which states, in

relevant part:

It is not the intent of this ordinance to have the open spaces and lines of vision

created by public rights-of-way used as license for unrestricted advertising

through the use of signage, but rather to enhance the physical appearance of the

City, preserve scenic and natural beauty of designated areas, make the City a

more enjoyable and pleasing community and to create a more attractive economic

and business climate by preserving property values. It is intended by the

provisions of this ordinance to reduce sign or advertising distractions, to eliminate

the visual blight caused by abandoned or poorly maintained signs and to avoid the

confusion of conflicting adjacent signs. . . . This consistent approach is necessary

to remove the need for the type of signs which compete for attention for the

motorist, thereby creating traffic hazards as well as creating visual blight within

the City. It is therefore within the health, safety and welfare responsibility of the

City of Livonia that this section of the ordinance is promulgated.

It is clear that the primary rationales for the billboard restrictions in defendant’s zoning

ordinance were promoting aesthetic features, including the prevention of visual blight, and

reducing traffic hazards for motorists. Each of these factors constitutes a legitimate

governmental interest in regulating billboards. See Metromedia, Inc v City of San Diego, 453 US

490, 507-508; 101 S Ct 2882; 69 L Ed 2d 800 (1981) (opinion by WHITE, J.) (“Nor can there be

substantial doubt that the twin goals that the ordinance seeks to further—traffic safety and the

appearance of the city—are substantial governmental goals”); id. at 559-560 (BURGER, C.J.,

dissenting).

Plaintiff, however, contends that defendant did not offer any evidence that billboards

actually affect traffic safety. In Metromedia, a majority of the United States Supreme Court,

composed of the plurality opinion as well as the two dissenting opinions, rejected the argument

that the record was inadequate to show any connection between billboards and traffic safety.

The plurality opinion stated:

The California Supreme Court noted the meager record on this point but held “as

a matter of law that an ordinance which eliminates billboards designed to be

viewed from streets and highways reasonably relates to traffic safety.” 26 Cal.

3d, at 859, 610 P.2d, at 412. Noting that “[billboards] are intended to, and

undoubtedly do, divert a driver’s attention from the roadway,” ibid., and that

whether the “distracting effect contributes to traffic accidents invokes an issue of

continuing controversy,” ibid., the California Supreme Court agreed with many

other courts that a legislative judgment that billboards are traffic hazards is not

manifestly unreasonable and should not be set aside. We likewise hesitate to

disagree with the accumulated, commonsense judgments of local lawmakers and

of the many reviewing courts that billboards are real and substantial hazards to

traffic safety. There is nothing here to suggest that these judgments are

unreasonable. As we said in a different context, Railway Express Agency, Inc. v.

New York, [336 US 106, 109; 69 S Ct 463, 465; 93 L Ed 533 (1949)]:

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We would be trespassing on one of the most intensely local

and specialized of all municipal problems if we held that this

regulation had no relation to the traffic problem of New York City.

It is the judgment of the local authorities that it does have such a

relation. And nothing has been advanced which shows that to be

palpably false. [Metromedia, 453 US at 508-509 (WHITE, J.).]

Two of the dissenting opinions also implicitly agreed with the plurality’s rejection of the claim

that the record was inadequate and agreed that advancing aesthetic interests, enhancing property

values, and minimizing traffic hazards related to billboards are legitimate and rational

governmental interests. See id. at 552 (STEVENS, J., dissenting); id. at 555, 560-561 (BURGER,

C.J., dissenting). Accordingly, although we recognize the limited evidence presented by

defendant in this case demonstrating the actual effect of billboards on traffic safety, we reject

plaintiff’s claim for the reasons stated in Metromedia. See also Members of City Council of City

of Los Angeles v Taxpayers for Vincent, 466 US 789, 806-807; 104 S Ct 2118; 80 L Ed 2d 772

(1984) (reaffirming the conclusion of the majority of the justices in Metromedia that “the city’s

interest in avoiding visual clutter . . . was sufficient [on its own] to justify a prohibition of

billboards[.]”). Similarly, Michigan law has recognized a municipality’s authority to regulate

billboard advertising for safety purposes as well as aesthetic reasons. See City of Holland, 234

Mich App at 692-693, citing Gannett Outdoor Co of Michigan v City of Troy, 156 Mich App

126, 134; 409 NW2d 719 (1986).

Further, plaintiff’s own evidence does not directly dispute defendant’s determination that

billboards generally present a traffic hazard. Rather, the Federal Highway Administration study

proffered by plaintiff, which focused on the effects of Commercial Electronic Variable Message

Signs (“CEVMS”), expressly acknowledges that drivers gaze at the roadway ahead less

frequently when standard billboards and billboards with changing messages are in sight.

Although the study noted that “the probability of looking ahead at the road ahead was high

across all conditions,” including in the presence of billboards; indicated that “drivers still had

access to information about what was in front of them through peripheral vision” even in the

presence of standard and changing billboards; and suggested that drivers may also gaze at other

objects along the roadways, none of these findings undermine defendant’s legitimate interest in

minimizing the distractions presented by all billboards in order to further traffic safety.

Thus, because defendant demonstrated that its ban on new billboards specifically is

related to both aesthetic and traffic safety concerns, which are reasonable governmental interests

rationally related to a total ban on new, off-premises billboards, plaintiff’s equal protection claim

must fail. See Houdek, 276 Mich App at 573-574. Accordingly, the trial court properly granted

summary disposition in favor of defendant on this claim.

C. EXCLUSIONARY ZONING UNDER THE ZEA

Lastly, plaintiff argues that § 18.50C of defendant’s zoning ordinance violates the

statutory prohibition against exclusionary zoning codified under § 207 of the ZEA. We disagree.

MCL 125.3207 provides:

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A zoning ordinance or zoning decision shall not have the effect of totally

prohibiting the establishment of a land use within a local unit of government in

the presence of a demonstrated need for that land use within either that local unit

of government or the surrounding area within the state, unless a location within

the local unit of government does not exist where the use may be appropriately

located or the use is unlawful.

Assuming, without deciding, that billboards qualify as a land use under MCL 125.3207, plaintiff

has not demonstrated that § 18.50C is invalid under that statute.

“MCL 125.3207 prohibits municipalities from enacting any zoning ordinance ‘totally

prohibiting’ a given land use if a ‘demonstrated need’ exists for that use, unless there is no

location where the use may be ‘appropriately located,’ [or] the use is ‘unlawful.’ ” Kyser v

Kasson Twp, 486 Mich 514, 540; 786 NW2d 543 (2010); see also id. at 542 (“[T]he exclusionary

zoning provision, MCL 125.297a, now MCL 125.3207, applies to all land uses within the

community and precludes the zoning power from completely prohibiting a lawful land use where

there is a demonstrated need for that land use within a jurisdiction.”). Accordingly, a plaintiff

challenging the ordinance under MCL 125.3207 must show a “ ‘demonstrated need’ for a certain

land use in order to overcome a zoning ordinance’s ‘effect of totally prohibiting the

establishment of a land use within a local unit of government.’ ” Ter Beek v City of Wyoming,

495 Mich 1, 22 n 8; 846 NW2d 531 (2014). See also City of Holland, 463 Mich at 684 (stating

the elements of an exclusionary zoning claim under MCL 125.592, the predecessor of MCL

125.3207).

Defendant’s ordinance has the effect of totally banning billboards in the city since there

no longer are any billboards in existence that preceded the adoption of the billboard ban in 1952,

and because § 18.50C prohibits the erection any new billboards. Even so, plaintiff has failed to

show a demonstrated need for billboards in Livonia or in the surrounding area.

The trial court concluded that there was no demonstrated need for billboards within

defendant’s city limits because the billboards permitted by other surrounding communities

adequately addressed any such need. We agree that the trial court’s grant of summary

disposition on this claim was proper because plaintiff demonstrated, at most, that there is a

demand for billboards as a means of communication and they can be useful to communities.

However, plaintiff has failed to demonstrate that there is a public need for billboards within

defendant’s boundaries.

With its response to defendant’s motion for summary disposition, plaintiff provided many

examples of the ways in which billboards are used to communicate with the public. It also

identified numerous individuals as well as public and private entities that routinely use billboards

to communicate with the public. However, these examples do not demonstrate that billboards

are needed in order to communicate with the public in Livonia, particularly when, as the trial

court observed, there are many billboards within the surrounding communities, well within two

miles of defendant’s boundaries. Instead, these examples merely reflect that there is a demand

for billboards among individuals and organizations that utilize billboards as a means of

advertising and sharing information. But plaintiff provided no evidence to this Court, the trial

court, or the zoning board that reflected any individual or corporate need for billboards in

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Livonia, and thus failed to satisfy its burden to oppose defendant’s motion for summary

disposition.

Likewise, it is apparent that plaintiff has a desire to erect the billboard instigating the

instant suit because it derives income, in light of this demand, from selling space on its billboards

wherever they are erected. We have previously explained, however, that a “desire” for a specific

land use is not the same as a “demonstrated need” for that use. In Outdoor Sys, Inc v City of

Clawson, 262 Mich App 716, 721; 686 NW2d 815 (2004), we concluded that MCL 125.592—

the predecessor to MCL 125.3207, which included nearly identical language to the current

statute under the ZEA—required proof “of public need for new billboards rather than a demand

for those billboards by advertisers.” See also City of Holland, 234 Mich App at 698. Given the

substantively identical statutory language under MCL 125.3207, we conclude that the same is

true in this case.

Thus, because plaintiff failed to establish a genuine issue of material fact as to whether

there is a demonstrated public need for billboards within defendant’s boundaries, the trial court

properly granted summary disposition in favor of defendant.6

IV. CONCLUSION

Plaintiff has failed to demonstrate that the trial court erred in granting summary

disposition in favor of defendant on its “common law” exclusionary zoning, constitutional equal

protection, and statutory exclusionary zoning claims.

Affirmed.

/s/ Christopher M. Murray

/s/ Cynthia Diane Stephens

/s/ Michael J. Riordan

6

Plaintiff briefly contends that the trial court erred in granting summary disposition before

plaintiff conducted discovery in order to establish a need for billboards in Livonia. We deem

this issue abandoned because it was not raised in the statement of questions presented. MCR

7.212(C)(5); Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich App 496, 543;

730 NW2d 481 (2007), lv gtd in part 480 Mich 910 (2007). Nevertheless, even if we were to

review this unpreserved claim, we would conclude that plaintiff has failed to demonstrate that

reversal is warranted on such grounds because it has failed to provide any basis for us to

conclude that discovery would have led to the detection of factual support for its claim. See

Duray Dev, LLC v Perrin, 288 Mich App 143, 150; 792 NW2d 749 (2010); Dresden v Detroit

Macomb Hosp Corp, 218 Mich App 292, 295-296; 553 NW2d 387 (1996).

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