Petition for Writ of Certiorari — Adams Outdoor Advertising v. City of East Lansing
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In the
| Supreme Court of the United States
| October Term, 2000
ADAMS OUTDOOR ADVERTISING,
Petitioner
v
CITY OF EAST LANSING,
Respondent
On Petition for Writ of Certiorari to the
Supreme Court of the State of Michigan
PETITION FOR WRIT OF CERTIORARI
Michael H. Perry (P 22890)
FRASER TREBILCOCK DAVIS & FOSTER, P.C.
Attorneys for Petitioner
1000 Michigan National Tower
Lansing, Michigan 48933
517/482-5800
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QUESTIONS PRESENTED
Whether the Michigan Supreme Court’s ruling that
the Petitioner/Lessee did not have a property right
protected by the Fifth Amendment of the United
States Constitution conflicts with this Court’s
rulings in United States v. General Motors, 323
U.S. 373; 65 S. Ct. 357; 89 L.Ed. 311 (1945) and
United States v. Petty Motor Co., 327 U.S. 372;
66 S.Ct. 596; 90 L.Ed. 729 (1946), both of which
recognized that the Fifth Amendment of the United
States Constitution protected a tenant’s interest in
real property?
Whether the Michigan Supreme Court’s ruling that
the Respondent had not unconstitutionally taken the
Petitioner’s interest in its rooftop billboards
conflicts with and is contrary to this Court’s ruling
in Lucas v. South Carolina Coastal Council, 505
U.S. 1003; 112 S.Ct. 2886; 120 L.Ed. 2d 798
(1992)?
Whether the Michigan Supreme Court committed
reversible error when it found that the Defendant’s
sign code did not effect a taking of Petitioner’s
interest in its rooftop signs because the
Defendant’s ordinance predated the Petitioner’s
acquisition of the billboards and leases and
predated the subsequent renewal of the leases?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED
INDEX OF AUTHORITIES
OPINIONS BELOW
JURISDICTION
THE LITIGATION
1. The Ingham County Circuit Court (Trial Court) .5
2. Michigan Court of Appeals
3. Michigan Supreme Court
SUMMARY OF ARGUMENT
REASONS FOR GRANTING THE WRIT
GROUNDS FOR ADAMS’ PETITION
il
A. THE MICHIGAN SUPREME COURT’S
RULING THAT THE PETITIONER/LESSEE DID
NOT HAVE A PROPERTY RIGHT PROTECTED
BY THE FIFTH AMENDMENT -OF THE
UNITED STATES CONSTITUTION CONFLICTS
WITH THIS COURT’S RULINGS IN UNITED
STATES v. GENERAL MOTORS, 323 U.S. 373;
65 S. CT. 357; 89 L.ED. 311 (1945) AND
UNITED STATES v, PETTY MOTOR CO., 327
U.S. 372; 66 S.CT. 596; 90 L.ED. 729 (1946),
BOTH OF WHICH RECOGNIZED THAT THE
FIFTH AMENDMENT OF THE UNITED
STATES CONSTITUTION PROTECTED A
TENANT'S INTEREST IN REAL PROPERTY .....
B. THE MICHIGAN SUPREME COURT’S
RULING THAT THE RESPONDENT HAD NOT
UNCONSTITUTIONALLY TAKEN” _ THE
PETITIONER’S INTEREST IN ITS ROOFTOP
BILLBOARDS CONFLICTS WITH AND IS
CONTRARY TO THIS COURT’S RULING IN
LUCAS __v, SOUTH CAROLINA COASTAL
COUNCIL, 505 U.S. 1003; 112 S.CT. 2886; 120
Les SE FI RE PUIED 6hihasiscnccdivesensednssiscenaaciés
C. THE MICHIGAN SUPREME COURT
COMMITTED REVERSIBLE ERROR WHEN IT
FOUND THAT THE DEFENDANT’S' SIGN
CODE DID NOT EFFECT A TAKING OF
PETITIONER’S INTEREST IN ITS ROOFTOP
iv
SIGNS BECAUSE THE DEFENDANT'S
ORDINANCE PREDATED THE PETITIONER'S
ACQUISITION OF THE BILLBOARDS AND
LEASES AND PREDATED THE SUBSEQUENT
RENEWAL OF THE LEASEG.................2c000008 15
CONCLUSION AND RELIEF REQUESTED........... 23
RIED seb encinnn ct odanspenedcassnesqnedenqen seas lianeenates L, 6
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GRMN sabe levtpchuteahdakeah Gebdupeceiacsstecansad execs 8, 23
Board of Regents of State College v. Roth, 408 U.S.
564; 92 S. Ct. 2701; 33 L.Ed. 2d 548 (1972)......... 19
Central Advertising Co, v. Ann Arbor, 391 Mich. 533;
a acca 22
Central Advertising Company v. Ann Arbor, 42 Mich.
App. 59; 201 N.W.2d 365 (1972)...........0...c0eeees 22
City of Monterey v. Del Monte Dunes, 526 U.S. 687;
119 S.Ct. 1624; 143 L.Ed. 2d 882 (1999) ............. 19
1003; 112 S.Ct. 2886; 120 L.Ed. 2d 798 (1992) passim
vi
Palazzolo v. Rhode Island, Supreme Court Docket No.
992047, cert. granted, 69 U.S. Law Week 3257 passim
438 U.S. 104: 98 S. Ct. 2646: 57 L.Ed. 2d 631
COPED Acdisrscsomaiicisisicisetiacincceascs 2, 15. 16
Redford Moving & Storage Co. v. City of Detroit, 336
Mich. 702, 711; 58 N.W. 2d 812 (1953) .............. 20
United States v. General Motors, 323 U.S. 373; 65 S.
Ces Saree MP ec RU DAR CEOMOE acicscivacsccsannances passim
United States v. Petty Motor Co., 327 U.S. 372; 66
S.Ct, 396; 90 L.Ed. 729 (1946) .........c.c.0c0ce0: passim
Wolverine Sign Works v. City of Bloomfield Hillis, 279
Mich. 205;-208; 271 N.W. 823 (1937)................. 21
Statutes
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Other Authorities
83 Am. Jur. 2d Zoning and Planning, § 656 ............. 20
Rules
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Supreme Court Rule 100) .....2...ccccccsccsscsccsdssesceces 8
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Constitutional Provisions
or |
The Petitioner, Adams Outdoor Advertising,
respectfully prays that a writ of certiorari issue to review
the judgment and opinion of the Michigan Supreme Court,
entered in the above-entitled proceeding on July 26, 2000.
OPINIONS BELOW
This petition is from a decision of the Michigan
Supreme Court reported at 463 Mich. 17; 614 N.W. 2d
634 (Mich. 2000) rehearing denied, 463 Mich. 1211
(Mich., 2000). The Michigan Supreme Court decision is
reproduced as Appendix item A. The Order denying the
Petitioner’s motion for rehearing is reproduced as
Appendix item B.
The Michigan Supreme Court decision reversed a
Michigan Court of Appeals decision, Adams Outdoor
Advertising v. City of East Lansing, 232 Mich. App. 587;
591 N.W. 2d 404 (Mich. App. 1998). This decision is
reproduced as Appendix item C.
There was one relevant decision by the Ingham
County Circuit Court. The Trial Court’s bench opinion is
reproduced as Appendix item D. The Trial Court’s
January 8, 1997 Order is reproduced as Appendix item E.
JURISDICTION
The Opinion of the Michigan Supreme Court
which is the subject of this Petition was filed and entered
2
on July 26, 2000. Thereafter, the Petitioner, Adams
Outdoor Advertising, timely filed a motion for rehearing
pursuant to Michigan Court Rule (M.C.R.) 7.313(D). The
Michigan Supreme Court denied the Petitioner's motion
for rehearing on September 19, 2000 (Appendix. item B)
This Petition for Writ of Certiorari is timely filed in
accordance with Rule 13.1 of the Rules of this Court.
This Court has jurisdiction over this matter pursuant to 28
U.S.C. § 1257(a).
CONSTITUTIONAL PROVISION AT ISSUE
The Fifth Amendment to the United States
Constitution states in relevant part:
“(N]or shall private property be taken for
public use without just compensation.”
The Fifth Amendment is applicable to the states
through the Fourteenth Amendment. Penn Central
Transportation Co. v. New York City, 438 U.S. 104,
122; 98 S. Ct. 2646; 57 L.Ed. 2d 631 (1978).
STATEMENT OF THE CASE
FACTS
This case arises out of the Respondent City of East
Lansing’s (hereafter Respondent or East Lansing)
elimination of the Petitioner Adams Outdoor Advertising’s
(hereafter Adams or Petitioner) lawfully constructed and
3
expressly permitted rooftop billboards. Adams leases two
separate parcels of real property within the City of East
Lansing (Plaintiff's trial exhibits 1 and 2 - leases for 1108
E. Grand River Avenue and 111 N. Harrison, East
Lansing, Michigan). It maintains and uses a rooftop
outdoor advertising structure at each location. There are
two 12 feet by 25 feet back-to-back poster panels located
at 1108 E. Grand River Avenue and there are three poster
panels located at 111 N. Harrison (Plaintiff's trial exhibits
1, 2 and 30). One of the properties was first leased to one
of Adams’ predecessors in 1954 (Plaintiff’s trial exhibit
2). The other was first leased to Adams’ predecessor in
1968 (Petitioner’s trial exhibit 1). In 1968, the Defendant
issued permits to Adams’ predecessor, Central
Advertising Company, for the billboards (Petitioner’s trial
exhibit 15 - request for admissions, {42-4 and Petitioner’s
trial exhibit 16 - Defendant’s answers to request for
admissions). The Petitioner's signs complied with the
Defendant’s code of ordinances before the Defendant
adopted its current sign code which is at issue in this case
(Petitioner’s trial exhibit 15 - request for admissions, {45-
7 and Petitioner’s trial exhibit 16 - Defendant’s answers
to request for admissions, ¢45-7).
In 1975, the respondent adopted its current sign
code. Section 8.38(12) of the code prohibits rooftop
billboards and signs (Appendix, item F, p. 2). Section
8.39(8) of the code required the elimination of all non-
conforming signs by May |, 1987 (Appendix, item F, p.
3). The Respondent’s sign code required the elimination
4
of Adams’ signs (Trial Tr. pp. 159-160). The
Respondent’s sign code did not provide for the payment of
compensation for the elimination of the non-conforming
billboards (Trial Tr., p. 88; Petitioner’s Trial exhibit 15 -
request for admissions, 410 and Petitioner’s trial exhibit
16 - Defendant’s answers to request for admissions, 410).
The evidence presented at trial was that the-value of
Adams’ rooftop signs was $57,500 and $55,000,
respectively, for a total of $112,500 (Trial Tr., pp. 87-
88).
5
THE LITIGATION
s The Ingham County Circuit Court (Trial Court).
In its Complaint in the Ingham County Circuit
Court (the Trial Court), Adams Outdoor Advertising, and
other parties not presently involved at the instant stage of
the proceeding, sought a declaratory judgment that the
Defendant’s uncompensated elimination of Adams’
previously lawful nonconforming billboards was contrary
to the Fifth Amendment of the United States Constitution.
Adams had also sought a declaration that the Respondent’s
ordinance was contrary to Michigan statutory law.
Although the Trial Court and the Michigan Court of
Appeals agreed with the latter, the Michigan Supreme
Court found to the contrary. Adams v. East Lansing, 439
Mich. 209, 219; 483 N.W. 2d 38 (1992) (Adams I). The
Michigan Supreme Court remanded the case to the Trial
Court to determine whether the application of the
Defendant’s sign code to Adams’ signs resulted in an
unconstitutional taking. 439 Mich. at 219.
Following the Michigan Supreme Court’s 1992
remand, the Trial Court conducted a trial on December 9,
1996. In its Trial Brief, Adams argued that the
Defendant’s elimination of the rooftop billboards was an
unconstitutional taking, contrary to the Fifth Amendment.
The Trial Court so found (Appendix, items D and E).
6
2. Michigan Court of Appeals.
The Michigan Court of Appeals affirmed the Trial
Court's ruling insofar as it pertained to Adams’ rooftop
billboards. 232 Mich. App. 587, 605; 591 N.W. 2d 404
(1998) (Appendix, item C, p. 19).
3. Michigan Supreme Court.
Despite the fact that the Respondent had failed to
make such an argument, the Michigan Supreme Court
analyzed Adams’ rights vis-a-vis those of the Lessors who
were not parties to the case. 463 Mich. at 24 - see
Appendix, item A, p. 8. As described above, the Court
found that the Lessors had no right to display the rooftop
signs upon their rooftops and that Adams lacked such a
right as well. 463 Mich. at 26; Appendix, item A, p. 10.
The Court also found that because Adams had acquired its
rooftop signs and leases in 1983 and had renewed those
leases in 1993 and 1996, it lacked a reasonable
expectation that it could maintain its signs after the
ordinance’s effective date of May |, 1987. 463 Mich. at
27; see, Appendix, item A, p. 11.
SUMMARY OF ARGUMENT
The Michigan Supreme Court's analysis of Adams’
constitutional rights as a lessee, as being derivative of
those of its lessors, conflicts with this Court's recognition
that the Fifth Amendment applies to a tenant's interest in
7
property. United States v, General Motors, supra, and
The enforcement of the Defendant's sign code
results in the complete elimination of Adams’ rooftop
billboards. This is a “categorical” taking and is contrary
to this Court’s ruling in Lucas v. South Carolina Coastal
Council, supra.
The Michigan Supreme Court’s holding that
Adams did not have a reasonable expectation that it could
maintain its signs and renew its leases after the effective
date of the Defendant's ordinance is also contrary to
Lucas. supra, and well-established common law real
property principles. As noted later in this Petition, the
question of whether one’s regulatory takings claim is
barred where the enactment of the regulation at issue
predates the claimant’s acquisition of the property is
presently pending before this Court in Palazzolo v, Rhode
Island, Supreme Court Docket No. 992047, cert. granted,
69 U.S. Law Week 3257 (October 10, 2000); see, 69
U.S. Law Week 3027 (July 11, 2000) for the statement of
the questions presented in Palazzolo, supra.
REASONS FOR GRANTING THE WRIT
GROUNDS FOR ADAMS’ PETITION
The grounds for the instant petition are as follows.
First, the Michigan Supreme Court has decided an
important federal question (i.e., whether a governmental
8
body had unconstitutionally taken one’s leasehold interest
in property without the payment of just compensation
therefor, contrary to the Fifth Amendment) in a way that
conflicts with the relevant decisions of this Court,
including United States v. General Motors, supra, United
States v. Petty Motors, supra, Lucas v, South Carolina
Coastal Council, supra, and Almota Farmers Elevator &
Warehouse Co. v. United States, 409 U.S. 470; 93 S. Ct.
791; 35 L. Ed. 1 (1973). See, Rule 10(c) of the Supreme
Court Rules.
Second, the Michigan Supreme Court has decided
an important question of federal law (see above) in a way
which conflicts with Lucas, supra, which prohibits the
uncompensated “categorical taking” of one’s property.
See, Rule 10(b) of the Supreme Court Rules.
Third, the Michigan Supreme Court has decided an
important question of federal law, i.e., whether one can
maintain a regulatory taking claim where the regulation at
issue predated the property owner’s acquisition of the
property, which has not been, but should be, settled by
this Court. See, Rule 10(c) of the Rules of the Supreme
Court. This particular issue is presently before the Court
in the matter of Palazzolo v. Rhode Island, supra.
9 “ey
A. THE MICHIGAN SUPREME COURT’S
RULING THAT THE PETITIONER/
LESSEE DID NOT HAVE A
PROPERTY RIGHT PROTECTED BY
THE FIFTH AMENDMENT OF THE
UNITED STATES CONSTITUTION
CONFLICTS WITH THIS COURT’S
RULINGS IN UNITED STATES _v.
GENERAL MOTORS, 323 U.S. 373; 65
S. CT. 357; 89 L.ED. 311 (1945) AND
UNITED STATES yv. PETTY MOTOR
CO., 327 U.S. 372; 66 S.CT. 596; 90
L.ED. 729 (1946), BOTH OF WHICH
RECOGNIZED THAT THE FIFTH
AMENDMENT OF THE UNITED
STATES CONSTITUTION PRO-
TECTED A TENANT’S INTEREST IN
REAL PROPERTY.
The Michigan Supreme Court found that the
constitutional rights of Adams, the lessee, were derivative
of those of its two lessors. 463 Mich. at 24-26. By doing
so, the Michigan Supreme Court decision ran afoul of this
Court’s ruling in United States v. General Motors, supra.
In that matter, the United States had condemned part of
General Motors’ leasehold for the storage of wartime
material. 323 U.S. at 375. The government had not
condemned the landlord’s fee interest but instead only
sought to take the lessee’s interest in the property. 323
10
U.S. at 375. During the course of its opinion this Court
recognized that:
“the right to occupy, for a day, a month, a
year, or a series of years, in and of itself
and without reference to the actual use,
—_ needs or collateral arrangements of the
occupier, has a value.” 323 U.S. at 379.
This Court then held:
“When [the government] takes the
property, that is, the fee, the lease,
whatever [one] may own, terminating
altogether his interest, under the established
law it must pay him for what is taken...”
323 U.S. at 382.
The Michig’ 1 Supreme Court’s derivative analysis
of Adams’ rights is contrary to this Court’s analysis of
General Motors’ Fifth Amendment rights. It is also
contrary to this Court’s finding in United States v. Petty
Motor Co., 327 U.S. 372; 66 S. Ct. 596; 90 L. Ed. 729
(1946), another case arising out of the government’s
condemnation of a property for use during World War II.
Although the building’s owner had agreed that the
government may temporarily use the property, the United
States proceeded to condemn the various tenants’
leasehold interests. 327 U.S. at 374. During the course
of its opinion, this Court in Petty Motor Co, said:
11
“... It is immaterial whether the
government actually took the leaseholds of
the tenants in addition to taking the
temporary use of the fee or only destroyed
the tenants’ right of occupancy. If any
property is taken, compensation is
required.” 327 U.S. at 378.
The instant Michigan Supreme Court’s ruling is
directly contrary to the principles of General Motors and
Petty Motor Co. In neither of those cases did this Court
determine whether the respective tenant’s rights to
compensation were derivative of the respective lessor’s
rights. In both of those cases, the landlord/lessor’s
interest was not at issue. In General Motors, the
government had not condemned the fee. 323 U.S. at 375.
In Petty Motor Co., the lessor had agreed that the
government could use the property. 327 U.S. at 374.
Notwithstanding those lessors’ situations, this Court found
that the Fifth Amendment protected the ee of the
lessees in both of those cases.
Because the Michigan Supreme Court’s ruling is
contrary to this Court’s rulings in General Motors, supra,
and Petty Motor Co., supra, Adams respectfully requests
the Court to grant the Petition for Certiorari and thereafter
reverse the Michigan Supreme Court’s erroneous ruling.
12
B. |THE MICHIGAN SUPREME COURT’S
RULING THAT THE RESPONDENT
HAD NOT UNCONSTITUTIONALLY
TAKEN THE PETITIONER’S
INTEREST IN ITS ROOFTOP
BILLBOARDS CONFLICTS. WITH
AND IS CONTRARY TO _ THIS
COURT’S RULING IN LUCAS vy.
SOUTH __ CAROLINA __ COASTAL
COUNCIL, 505 U.S. 1003; 112 S.CT.
2886; 120 L.ED. 2D 798 (1992)
The instant Trial Court relied upon Lucas v. South
Carolina Coastal Council, supra in support of its finding
that the Defendant’s ordinance was _ unconstitutionai
(Appendix, item D, p. 5).
In Lucas, the State of South Carolina had enacted a
statute which prevented the erection of a structure upon
one’s beach-front property. Lucas sustained the beach-
front property owner’s contention that the adoption of a
Statute was an unconstitutional taking, and reaffirmed the
general principle that: ;
“When the owner of real property has been
called upon to sacrifice gi/ economically
beneficial uses in the name of the common
good, this is, to leave his property
economically idle, he has suffered a
——
13
taking.” 505 U.S. at 1019 (emphasis in
original).
Like the State of South Carolina, the instant Defendant, by
way of a legislative pronouncement (i.e., an ordinance),
called upon Adams to sacrifice all of the economically
beneficial uses of its rooftop billboards. The Trial Court
correctly applied Lucas (and the instant Court of Appeals
correctly applied its principle) to the Defendant’s
ordinance and found that the Defendant’s compelled and
uncompensated removal of Adams’ rooftop signs was an
unconstitutional taking. _ The Michigan Supreme Court
erroneously ruled to the contrary. Adams respectfully
requests this Court to grant its Petition for Certiorari and
find that Lucas applies to the instant matter and mandates
a finding that the Defendant's ordinance is contrary to the
Fifth Amendment.
As this Court held _in Lucas, the only
constitutionally permissible basis for the government’s
right to take one’s property without paying for it is if the
property’s use is a nuisance. Lucas held:
“...as it would be required to do if it sought
to restrain Lucas in a common-law action
for public nuisance, South Carolina must
identify background principles of nuisance
and property law that prohibit the uses he
now intends in the circumstances in which
the property is presently found. Only on
14
this showing can the State fairly claim that,
in proscribing all such beneficial uses, the
Beachfront Management Act is taking
nothing.” (underlining added, footnote
omitted) 505 U.S. at 1031 - 1032.
By substituting the words “Adams,” “East Lansing,”
“city,” “rooftop billboards,” and “sign ordinance” for the
above underlined words, respectively, this Court can, and
should, make Lucas’ holding its own. —
Adams’ off-premises billboard signs are not a
nuisance. The Respondent never claimed that they were.
Further, during the course of its first opinion in this
matter, the Michigan Supreme Court, through one of its
justices, recognized that Adams’ billboards “are not
contraband.” 439 Mich. at 239 (Justice Levin).
Also, the Michigan Legislature has recognized
that:
“Outdoor advertising is a_ legitimate
commercial use of private property, is an
integral part of the marketing function and
an established segment of the economy of
this state.” M.C.L. 252.303; M.S.A.
9.391(103).
Adams’ billboards are not nuisances. Lucas recognized
that the government may not deprive one’s property of its
Ss
15 =
“economic utility” unless that property’s use qualifies as a
nuisance. 505 U.S. at 1031. The instant Respondent,
contrary to Lucas, has indeed deprived Adams’ leasehold
interests of their “economic utility.” By doing so, the
Defendant has taken Adams’ property without the
payment of just compensation, contrary to the Fifth
Amendment.
C. THE MICHIGAN SUPREME COURT
COMMITTED REVERSIBLE ERROR
WHEN IT FOUND THAT THE
DEFENDANT’S SIGN CODE DID NOT
EFFECT _A TAKING OF
PETITIONER’S INTEREST IN ITS
ROOFTOP SIGNS BECAUSE THE
DEFENDANT’S ORDINANCE PRE-
DATED THE PETITIONER’S
ae ACQUISITION OF THE BILLBOARDS
AND LEASES AND PREDATED THE
SUBSEQUENT RENEWAL OF THE
LEASES.
The Michigan Supreme Court purported to analyze
Adams’ regulatory takings claim under both the Lucas
“categorical” analysis and the Penn Central
Transportation Co. v. New York City, 438 U.S. 104; 98
S. Ct. 2646; 57 L.Ed. 2d 631 (1978) “balancing test.”
One of the factors relevant to the latter is: :
a
16
“The extent by which the regulation has
interfered with distinct, investment-backed
expectations.” Penn Central, supra, 438
U.S. at 124.
Apparently referring to the third prong of Penn Central's
balancing test, the instant Michigan Supreme Court found
that Adams lacked a “reasonable expectation” that it could
use its rooftop signs after May 1, 1987 where Adams had
acquired its signs and leases in 1983 (after the 1975
passage of the ordinance) and had renewed its leases in
1993 and 1996. 463 Mich. at 27; see Appendix, item A,
p. 11. Assuming arguendo, that this Court finds that the
Defendant’s ordinance did not result in a Lucas-style
categorical taking, Adams respectfully requests the Court
to grant the instant Petition for Certiorari, as it did in
Palazzolo, supra, and thereafter find that Adams’
acquisition of its signs and leases after the adoption of the
ordinance, and its renewal of those leases after its
effective date, does not preclude its claim.
Presently pending before this Court is Palazzolo v.
Rhode Island, United States Supreme Court Docket No.
99-2047. The Court granted the Petition for Certiorari
therein on or about October 10, 2000. 69 U.S. Law
Week 3257 (October 10, 2000). One of the questions
presented in Palazzolo is whether one’s regulatory takings
claim is barred whenever the regulation at issue predates
the claimant’s acquisition of the property. Palazzolo,
Docket No. 99-2047, 69 U.S. Law Week 3027 (July 11,
17
2000). The Rhode Island Supreme Court had found that
Mr. Palazzolo could not maintain his regulatory takings
claim where the State of Rhode Island’s regulation had
predaie? his acquisition of the property. 746 A.2d 707,
715. ‘he instant Michigan Supreme Court made a similar
finding. 463 Mich. at 27. The Michigan Supreme Court
made the same error that the Rhode Island Supreme Court
made. Adams requests this Court to grant its Petition for
Certiorari, as it did in Palazzolo, supra and find that
Adams’ acquisition of its billboards and leases after the
adoption of the instant Respondent’s 1975 sign code does
not preclude a finding that Adams had a reasonable
expectation that it could continue to maintain its rooftop
billboards after May 1, 1987.
During the course of its opinion, Palazzolo
referred to this Court’s statement in Lucas, supra, that:
“Where the State seeks to sustain regulation
that deprives land of all economically
beneficial use, we think it may resist
compensation only if the logically
antecedent inquiry into the nature of the
owner’s estate shows that the proscribed
use interests were not part of his title to
begin with.” Lucas, supra, 505 U.S. at
1027, cited in Palazzolo, supra, 746 A.2d
at 715.
eRe eae
18
Palazzolo found that because the property owner therein
had acquired his property after the State’s regulations in
question were already in place, the owner lacked a
regulatory takings claim. 746 A.2d at 715. Palazzolo
also relied upon the above Lucas statement when it
rejected Mr. Palazzolo’s argument that the date of the
regulation’s adoption was irrelevant. 746 A.2d at 716.
Further, Palazzolo held that because the regulations had
been in place when Mr. Palazzolo acquired the property,
he lacked an investment-backed expectation that he could
fill the coastal wetlands at issue therein. 746 A.2d at 717.
As noted in Palazzolo, supra, Lucas requires the
Court to determine whether the nature of one’s estate
included the use in question. 746 A.2d at 715, citing
Lucas, supra. An analysis of Adams’ estate should lead
this Court to grant the instant petition to reverse the
erroneous ruling of the Michigan Supreme Court.
First, unlike the situation in Palazzolo, and of
greater Fifth Amendment significance, the instant case
involves the elimination of an existing use of property.'
f
' Adams is unaware of any decision by this Court which
upheld a governmental body’s uncompensated elimination
of an existing and lawful use of property. Typically, this
Court has considered a regulatory takings claim within the
context of the proposed development of one’s property.
See, ¢.g. City of Monterey v. Del Monte Dunes, 526
Pe A a eed
19
Palazzolo involved a request to develop raw land (coastal
wetlands). The instant Respondent had issued permits for
the rooftop billboards at issue more than seven years
before the adoption of the ordinance and approximately 19
years before its effective date. The billboards were lawful
before the Respondent passed and then later enforced its
ordinance.
State common law principles define the property
rights and interest that are protected by the United States
Constitution. Board of Regents of State College v. Roth,
408 U.S. 564, 577; 92 S. Ct. 2701; 33 L.Ed. 2d 548
(1972). One such common law principle of real property
law is that:
“The right to maintain a nonconforming use
does not depend upon ownership or tenancy
of the land on which the use is situated. It
is not personal to the current owner or
tenant but attaches to the land itself.
Accordingly, a change in the ownership or
tenancy of a nonconforming business or
structure does not affect the right to
continue the nonconforming use; such right
can be exercised equally by the purchaser.
Since the right runs with the land, it is not
lost. although the use in question was
U.S. 687, 704; 119 S.Ct. 1624; 143 L.Ed. 2d 882 (1999)
and Lucas, supra.
20
conducted by a tenant and is carried onbya ~
new tenant.
“A change of ownership of land to which a
nonconforming use has attached does not
affect the right to such use although the
change occurred after the restrictive
ordinance became effective. And the right
is not forfeited by a purchaser who takes
with knowledge of the regulations which
are inconsistent with the existing use.” 83
Am. Jur. 2d Zoning and Planning, § 656,
pp. 557-558 and cases cited therein
(footnotes omitted. )
Although the above text does not cite any
Michigan decisions, Michigan law is in accord with the
rule that a subsequent owner has the constitutional right to
continue a predecessor's non-conforming use of the
purchased property. Redford Moving & Storage Co. v.
City of Detroit, 336 Mich. 702, 711; 58 N.W. 2d 812
(1953).
Unlike the property owner in Palazzolo, supra,
Adams acquired an existing and lawful use of property.
Although the Respondent had, by fiat, declared that use to
? Adams |, supra, held that the instant Respondent had the
implied statutory authority to eliminate the non-
conforming signs. 439 Mich. at 219.
TEE
21
be nonconforming in 1975, that lawful nonconforming use
ran with the real property owned by Adams’ lessors.
Consistent with Lucas’ above admonition (approvingly
cited in Palazzolo, supra), the instant Respondent is
unable to eliminate Adams’ right to continue to use the
property without paying Adams just compensation. 505
U.S. at 1027.
Second, as a matter of fact, Adams had a distinct
expectation that it would be allowed to continue to use the
billboards in question. Both the general history of
billboard jurisprudence within the State of Michigan, and
in particular, the experiences of Adams’ immediate
predecessor, Central Advertising Company, demonstrate
that Adams had a reasonable expectation that it could
continue to use the rooftop leaseholds. Among other
things, the following factors support this proposition:
e In 1937, the Michigan Supreme Court held that
a city’s police power authority to regulate
billboards did not allow a city to terminate the
use of a non-conforming billboard. Wolverine
Sign Works v. City of Bloomfield Hills, 279
Mich. 205, 208; 271 N.W. 823 (1937):
e In 1972, three years before the Defendant
adopted its ordinance, the Michigan Court of
Appeals held that the City of Ann Arbor did
not have a right to eliminate over time Central
Advertising Company’s non-conforming off-
22
premises billboards. Central Advertising
Company v. Ann Arbor, 42 Mich. App. 59,
73; 201 N.W.2d 365 (1972).
In 1974, more than a year before the Defendant
adopted its ordinance and 13 years before its
effective date, the Michigan Supreme Court
affirmed the above Court of Appeals ruling,
albeit on other grounds. Central Advertising
Co. v. Ann Arbor, 391 Mich. 533; 218
N.W.2d 27 (1974).
In April of 1975, the Washtenaw County
Circuit Court reaffirmed its findings regarding
the invalidity of the City of Ann Arbor’s sign
code. In June of 1975, the Michigan Supreme
Court affirmed the Trial Court’s ruling within
the context of its prior holding. Central
Advertising Co, v. Ann Arbor, 394 Mich. 943
(1975).
Adams acquired its rooftop leaseholds from
Central Advertising Company in 1983. It did
so after many years of Michigan biliboard
jurisprudence had established the rights of a
billboard owner. One of those owners was
Adams’ immediate predecessor (Central ©
Advertising Company) and the party to whom
the Defendant had issued permits and a license
for the instant billboards.
23
Adams also had the legal right to expect that it
could renew its leases with its lessors. Its Fifth
Amendment-protected leasehold rights (see, General
Motors and Petty Motor Co., supra), included its right to
renew its leases. Almota Farmers Elevator & Warehouse
Co, v. United States, 409 U.S. 470; 93 S.Ct. 791: 35
L.Ed. 2d 1 (1973). Adams had a right to renew its leases
in 1993 and 1996.
The relevant Michigan jurisprudential history
applicable to the instant case, buttressed by this Court’s
decisions in, among others, General Motors, Petty
Motors, and Almota Farmers Elevator & Warehouse,
supra, demonstrates that Adams had a _ reasonable
expectation that it would be allowed to continue to use the
rooftop billboards. The right to use those lawful pre-
existing structures ran with the land. This was part of
Adams’ “title,” i.e., its “bundle” of rights. Adams had
an expectation that it could use the billboards. For these
reasons, Adams requests the Court to grant this Petition
for Certiorari and reverse the decision of the Michigan
Supreme Court.
CONCLUSION AND RELIEF REQUESTED
As demonstrated above, the Michigan Supreme
Court’s finding is clearly contrary to many of this Court’s
decisions. The Michigan Supreme Court did not merely
misapply a properly stated rule of law. Rather, its
24
decision is clearly contrary to the Fifth Amendment’s
requirement that the Defendant must pay just
compensation for the elimination of Adams’ property
rights. Adams requests the Court to grant its Petition for
Certiorari, find that the enforcement of the Defendant’s
sign code is contrary to Adams’ Fifth Amendment rights,
and reverse the erroneous decision of the Michigan
Supreme Court.
Respectfully submitted,
FRASER TREBILCOCK DAVIS & FOSTER, P.C.—
Attorneys for Plaintiffs
“ : )
By: tls hse ie ny
Michael H. Perry (P 228907
1000 Michigan National Tower -
Lansing, Michigan 48933
(517) 482-5800
Dated: December 18, 2000
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.