Sen. George Amendment Bans FIA Billboards

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News Release
Senator for the 20th District
TOM GEORGE
State Capitol / Lansing, Michigan 48913
PH (517) 373.0793 / FAX (517) 373.5607
www.senate.michigan.gov/gop/senator/george/

FOR IMMEDIATE RELEASE
April 3, 2003
Contact: Sherry Sofia
(517) 373-0793

George Amendment Bans FIA Billboards

Reduces Wasteful Spending

Senator Tom George successfully inserted an amendment today into the Family Independence Agency budget, which would prohibit the agency from spending money on billboards. According to department records, the FIA has contracted with Adams Outdoor Advertising for over $872,000 worth of billboards. The billboards appear throughout the state and carry messages such as: “Helping with family matters because family matters,” and, “A child’s safety is everyone’s business.”

“The money could be better spent than on these feel good billboards,” George said. “Here we are faced with cutting funding for important services such as health care and education, while the state is putting up these useless billboards that don’t say anything.”

The amended bill has been reported out of subcommittee and will next be reviewed by the Appropriations Committee as a whole before being sent to the Senate for consideration.

ROHE—Group Offers Advice on Billboard Control

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Published in the Lansing State Journal
February 6, 2003

Michigan has much to do in reducing signage along roads

Time is precious in our hectic lives. Often, we find the most precious elements yield to more pressing concerns.

If a billboard were placed in the oldest section of Michigan State University’s campus, there would be an outrage. Every one of us would react to the insult to a precious place.

But when one more billboard clutters the roadside, we drive on by. Often, we can’t be bothered. If maintaining places worthy of our affection is still important, then Scenic Michigan’s mission is your mission.

Scenic Michigan, an affiliate of Scenic America, is a non-profit group in the business of preserving and enhancing the aesthetic character of Michigan’s communities and corridors.

We successfully backed a measure making it a felony to destroy trees or shrubs within a highway right-of-way. We have halted new construction of double-decker billboards. We have arranged for billboard permit fees to become more commensurate with administrative costs.

Scenic Michigan promotes the use of Logo Signs and Tourist Oriented Direction Signs (TODS). These signs along major highways provide helpful information to the traveling public without intrusive blight.

Scenic Michigan provides communities with tools to conserve scenic roadsides, roadside vegetation, community identity and tasteful highways. Billboard companies often look to the First Amendment in defending intrusive signs. For communities interested in regulating billboards, Scenic Michigan, with a grant from the Frey Foundation, has arranged for a team of lawyers and planners to develop: “Recommended Elements of a Sign Ordinance.” We freely provide this to municipalities for the asking.

This document enables municipalities to meaningfully make a statement to defend their aesthetic character before it is eclipsed by more “litter on a stick.”

Our Scenic Resource Inventory Guide provides communities with a cookbook recipe on how to implement a plan for a specific corridor.

If you would like more information on the “Scenic Resource Inventory Guide” or “Recommended Elements of a Sign Ordinance,” write to info@scenicmichigan.org .

People interested in protecting community aesthetics are invited to attend Scenic Michigan’s Annual Conference on April 7 in Mount Pleasant.

Tourism goes hand in hand with respect for the place. We can treat our motoring tourists with a trip through the Yellow Pages on the road. Or, we can dignify their visit with respect for them and our land.

Scenic Michigan knows that billboard blight clashes with an economy for tourism. The 14,000 billboards now lining Michigan’s roadways intrude upon our landscape and devalue our greatest asset.

Alaska, Hawaii, Maine and Vermont are billboard free. They recognize the relationship between respect and tourism. When Vermont banished billboards, tourism increased by 50 percent. Let’s unite in respecting our fragile place.

Maintaining and enhancing the vistas, whether urban, rural, or vacation land, is just good business and good long term investment for the people of Michigan.

Deborah Rohe is president of Scenic Michigan

Retired Librarian Takes on MDOT, Legislature Over Billboard Law

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Dec. 6, 2002

BY FRED GRAY
Petoskey News-Review Staff Writer

KINCHELOE — While driving along I-75 three years ago, retired prison librarian Jean Karrer of Kincheloe noticed

there was something unusual about the dozen or so billboards along both sides of I-75 just north of Rudyard in the snowswept eastern reaches of Michigan’s Upper Peninsula.

On inspection she noticed that the trees and bushes in front of the signs on the state right of way had been severely trimmed, or in her word, “destroyed,” evidently to increase the visibility of the billboards from the highway.

That piqued her curiosity and as she looked further into the mystery, she became convinced that there was trickery afoot, and she uncovered layer after layer of state and agency policy, often in apparent conflict.

Her approach — to write brief letters of protest to a weekly community newspaper — earned her a lawsuit filed by the owner of the local sign company, whom she called a “felon” for destroying trees and vegetation surrounding his billboards.

And her outspokenness has caused a rift with her three children, who press her to retract her published statements, something she has so far refused to do.

“They all think I’m crazy for getting involved in this. They wanted me to recant, to say that I was mistaken. I said, ‘No. I raised you differently. A right is a right and I will not lie,'” Karrer says. “So they’re still worried about their mother. That’s all right. That’s why I stayed up here, to live up here instead of going down below.”

Karrer’s arguments boil down to this: The issuance of trimming permits by the Michigan Department of Transportation conflict with state law that forbids destruction of trees to improve the visibility of billboards.

And the issues she has raised are at the heart of changes that have been proposed to the Highway Advertising Act of 1972 — changes aimed at removing the clear and admitted conflict between law and policy.

No one will say that Karrer’s low-key campaign, waged through a series of precise, spirited letters penned on her antique wooden desk, has been the sole motivating force behind the changes being debated in Lansing.

But she has the attention of MDOT officials, and her legislators, Rep. Scott Shackleton, R-Sault Ste. Marie, and Sen. Walter North, R-St. Ignace.

And she has the support of local and county officials, who are currently studying how to protect the I-75 corridor from St. Ignace to the Soo from new billboards, and of Scenic Michigan, the public interest organization headed by Debbie Rohe of Petoskey, which battles their proliferation statewide.

Karrer’s arguments focus on the meaning of a single word: “Destroy.”

State law makes it a felony to “destroy trees or shrubs within a highway right of way for the purpose of making a sign, whether proposed or existing, more visible.” The law says nothing, so far, about trimming.

Dictionary definitions of “destroy” include acts that fall short of total annihilation: To destroy can mean to break up or ruin, or to make useless.

Karrer argues that topping trees essentially destroys them as they are rendered useless for years, never to grow back to their original shape, and thus any MDOT permit that allows for severe trimming of trees violates state law.

She also says the tall, mature pines that line long stretches along the west side of I-75 were originally planted to form a windbreak to protect motorists from the “unforgiving winds from the west.”

She says that when trees are topped for long stretches to improve visibility of billboards, they break the continuity of the windbreak and subject motorists to sudden gusts of wind.

“Wind is a dangerous factor up here. They’ll close the bridge during high winds. And when you’re driving I-75 and you don’t have a windbreak, you’re subject to sudden gusts of wind and snowdrifts, and on a slippery highway, that’s dangerous,” Karrer says.

“From March 1998 until January 2002 there were 20 rollovers and six cars in the ditch in the three or so miles between the Kinross and Rudyard exits, where the billboards are located.”

In her letter published last June in the Community Voice weekly newspaper, circulation 1,700, Karrer wrote:

“These open, cut areas are killers. The wanton destruction of state property along the I-75 right of way must stop. We want the beauty of Chippewa County back and we want highway safety.”

Karrer appealed to Michigan State Police and the Chippewa County Sheriff’s Department to enforce the law. So far she has heard nothing from law enforcement.

She has heard from Ron Roe, owner of MacInnes Advertising of Rudyard. Roe is certain he has acted properly, having obtained permits from MDOT to “trim spruce in front of existing billboards” in specified locations in the state’s right of way.

The permits, which include approved sketches attached to the application, state that trees “may be trimmed to a resultant height of 6-8 feet. All work must be done by a certified arborist.”

Ari Adler, MDOT’s director of communications, admits the statutes on the subject are vague even to the point of conflict, but he says many state laws are subject to interpretation.

“We issue permits for trimming but not for complete removal. If they go in for trimming, they tend to expand and end up whipping trees out. Then we have to work out restitution. So there are limitations on what they can do.”

MDOT, in a nine-page manual on issuance of permits to clear vegetation around highway advertising, takes full responsibility for the process. But it makes no mention of the Highway Advertising Act, or Sec. 11 making it criminal to destroy trees.

The MDOT manual even says individual plants may be relocated or removed to reduce the obstructed view, provided that such action does not constitute an infringement of federal, state or local laws or regulations.

Adler cites a 1921 state statute that gives “authorities having jurisdiction over roads” the power to approve or deny requests to cut, destroy or otherwise injure any shade or ornamental tree or shrub growing within the limits of any public highway within the state.

The early statute is much more lenient to offenders than the Highway Advertising Act, providing for a fine of not more than $100 or imprisonment in the county jail for a period not exceeding 30 days, or both.

In contrast, Sec. 11 of the Advertising Act of 1999 subjects violators who commit similar acts to two years in prison and a $10,000 fine, or both.

Karrer sees the confusion in law and the permitting system as an excuse for continued destruction of trees to the detriment of the state’s natural charm and the safety of its residents.

“The thing is, these people up here hide behind the beauty and think they can get away with things,” she says.

© Petoskey News-Review Charlevoix Courier 2002

Wayne County Circuit Court Upholds Livonia’s Billboard Ban

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On November 28, 2001, Wayne County Circuit Court Judge Edward M. Thomas upheld Livonia’s ban on billboards. The Livonia ordinance defined “Billboard” as: “A ground sign advertising a product, event, person, business, or subject not related to the premises on which the sign is located. Off-premise directional signs as permitted in this ordinance shall not be considered as billboards.”

A New York company challenged this billboard ordinance on five well known grounds: 1) Exclusionary zoning, 2) First Amendment Freedom of Speech, 3) Commerce clause of the U.S. Constitution, 4) Substantive due process rights under the U.S. and Michigan Constitutions, and 5) Equal protection.

The Wayne County Circuit Court averted a trial by granting “summary disposition” in favor of the City of Livonia. Summary disposition is a procedural way to dismiss a case when there are no factual issues.

Judge Thomas’ 16-page Opinion found no basis to any of the five claimed theories. The Court found there was no First Amendment violation by recognizing there was a distinction between “commercial and non-commercial speech; the former may be regulated in situations where the latter may not be.” The court applied standards derived from the U.S. Supreme Court in finding there was no infringement of First Amendment freedoms. Judge Thomas upheld Livonia’s interest by finding there was a reasonable fit between the intended goal (aesthetics and safety) and the means to reach the goal (a billboard ban). Judge Thomas also found the billboard ban was “content neutral.” In other words, efforts to legislate the type of speech may violate First Amendment freedoms. Courts frown on legislative attempts to draw lines between favored and disfavored businesses or conduct. The outright ban on billboards was aptly found to be content neutral by Judge Thomas.

Since the Court found a reasonable relationship between the goals (aesthetics and safety) and the means (banning billboards), there was no substantive due process violation.

The Court rejected the Exclusionary Zoning argument because there was no “demonstrated need” for billboards.

The interstate and equal protection arguments were dismissed in that the Court found no discriminatory practices.

The Wayne County Circuit Court Opinion has been appealed to the Michigan Court of Appeals. Scenic Michigan will be filing an Amicus Curiae brief.

Michigan Supreme Court Unanimously Empowers the City of Holland to Ban Construction of New Billboard

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Issues: Whether sections of city’s zoning ordinance regarding signs were valid under the Michigan City and Village Zoning Act (CVZA); Home Rule Cities Act (HCRA) §§ 41(c) and (f); Exclusionary zoning

Court: Michigan Supreme Court

Case Name: Adams Outdoor Advertising, Inc. v. City of Holland

e-Journal Number: 10112

Judge(s): Kelly, Corrigan, Cavanagh, Taylor, Young, Jr., and Markman; Concurring in result only – Weaver

Although the challenged sections of defendant-city’s zoning ordinance limited the billboards within the city, they did not constitute an impermissible total prohibition of billboards and the trial court erred when it ruled that plaintiff met its burden to demonstrate exclusionary zoning under the CVZA. Since defendant enacted the provisions under the CVZA as part of its zoning ordinances, the HRCA provision authorizing cities to regulate billboards in their charters did not need to be considered. The court affirmed the Court of Appeals decision vacating the circuit court’s injunction precluding enforcement of the challenged zoning ordinance provisions.

Read the full Opinion Here

Supreme Court Rules City Doesn’t Have to Pay for Billboard Ban

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An East Lansing ordinance banning rooftop billboards does not qualify as a taking and the city does not owe compensation to the affected business, the Supreme Court ruled Wednesday.

The long-running case, Adams Outdoor Advertising v. City of East Lansing (docket No. 113674), has already appeared before the high court – where justices held that the city had the legal authority to prohibit freestanding and rooftop billboards and returned the case to the Ingham County Circuit Court to determine whether the law resulted in an uncompensated taking. Wednesday’s decision dealt solely with whether the law’s impact on rooftop billboards meant there should be compensation to the business.

In overturning the trial court and Court of Appeals, a unanimous Supreme Court held that the billboard leases, which predated the 1975 ordinance, did not include an absolute right to display signs on the rooftops. Justice Clifford Taylor, in an opinion joined by Justices Maura Corrigan, Stephen Markman and Robert Young Jr., wrote that the law is not a taking under a three-part test.

First, the court already has ruled that the ordinance is legal and part of reasonable police power regulation. Second and third, the economic effect of the law is minimal because the rooftop is only a small portion of the property.

In a separate concurring opinion, Justice Marilyn Kelly, joined by Justice Michael Cavanagh, said she agreed with the ruling but disagreed with the premise of basing it on the rights of the lessor, which she said is not before the court.

“I realize that the economic effect on the plaintiff in this case is substantial because defendant’s ordinance precludes plaintiff from using its leaseholds,” Ms. Kelly wrote. “I balance that fact against the absence of any investment-backed expectation and the recognized social benefit of improving safety and aesthetics.”

In another separate concurring, and somewhat reluctantly so, opinion, Chief Justice Elizabeth Weaver wrote that she is “concerned this court has failed to give due consideration to the private property interests related to billboard ownership and leases,” but that eliminating the billboards “would not change the nature of the underlying governmental action.”

Victory in ADAMS Advertising in Michigan

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From Environmental Policy Project,
Georgetown University Law Center

On Wednesday, July 26, 2000, the Michigan Supreme Court issued a decision in Adams Outdoor Advertising v. City of East Lansing, unanimously reversing a court of appeals ruling that a municipal ordinance requiring the removal of billboards effected a regulatory taking. The City of East Lansing had adopted an ordinance in 1975 requiring that billboards be removed at the end of a twelve year amortization period. The court of appeals, in a dramatic departure from the nearly universal rule followed across the country, had ruled that the use and value of the billboards during the amortization period was irrelevant in a takings analysis. See 591 NW 2d 404. The Supreme Court reversed the finding of taking and eliminated this adverse precedent.

In reaching this decision, however, the Supreme Court relied on somewhat strange and rather narrow reasoning. Four justices, in the majority opinion, relied on the bizarre and so far as we know unprecedented reasoning that the alleged taking of the plaintiff’s leasehold interests had to be analyzed by asking whether the ordinance effected a taking of the lessors’ property interests. Because the lessors’ owned entire buildings while the leasehold interests covered only the spot on the buildings where the billboards are located, this analysis led to the conclusion that there was no taking. These four justices and two others (who filed a concurring opinion) also reasoned, more convincingly, that there was no taking because the plaintiff purchased the billboards and entered into new leases after the ordinance was already in effect and, therefore, lacked a sufficient property interest or investment-backed expectation to claim a taking. The seventh justice filed a brief opinion concurring in the result of the majority opinion but seeming, in substance, to dissent from the conclusion that there was no taking.

While a valuable victory, the decision leaves open for debate in the Michigan Supreme Court in some future case the question whether a reasonable amortization period does preclude a finding of a taking. Whether the majority’s novel analysis of a lessee’s takings claim based on the property interest of the lessor has any long-term viability seems very much open to question.

John Bagg, of counsel with the Environmental Policy Project, drafted an amicus brief on behalf of Scenic Michigan and Scenic America in the case. The brief developed the lack of protected property interest/lack of investment-backed expectation argument relied upon by six of the justices. John Rohe served as local counsel and provided invaluable assistance on the brief.

A copy of the opinion is available at: http://www.lawyersweekly.com/misup/113674.htm