Agenda - Planning Commission - 02/02/2012

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December 10, 201 1 1 Volume 51 No. 23 Zoning Bulletin The Court of Appeals of Michigan found that Lamar's argument that case law prohibited a township from barring modernization of a noncon- forming use if it reduces the nonconformity was without merit. Modern- ization of a nonconforming use may be allowed dependent on the facts of the case, said the court. Modernizations of nonconforming uses are not to be allowed carte blanche just because they may reduce nonconformities. Here, the court found that the ZO's restrictions on modernization of nonconforming signs and billboards to 30% of replacement value still al- lowed a property owner to maintain, modernize, and use the billboard. The ZO did not prevent Lamar's billboard from being used, nor did it de- stroy Lamar's investment. It merely limited changes that could be made to it. Accordingly, the Township had the authority to abate the nuisance (in Lamar's changed billboard). Consequently, Lamar was not entitled to relief from the ZO under which its modernized billboard was declared a nui- sance per se. The court also rejected Lamar's argument that the ZO's required space between billboards violated the First Amendment. The court noted that the First Amendment protects commercial speech only if that speech con- cerns lawful activities and is not misleading. A restriction on protected commercial speech is constitutional so long as it: (1) seeks to implement a substantial government interest; (2) directly advances that interest; and (3) reaches no further than necessary to accomplish the given objective. Applying that test here, the court found that the ZO's 2,640 -foot spacing between signs requirement passed constitutional muster. Lawful commercial speech was involved, found the court. As to the ZO's restrictions on that speech (in the form of the spacing requirements), the court found: (1) that the ZO's goals of promoting aesthetic desirability of the environment and reducing hazards to life and property in the Township were of substantial government interest; (2) the restrictions directly advanced those interests; and (3) went no further than necessary to accomplish those objectives. Lamar had argued that the spacing requirements served no aesthetic or public safety purpose. The court disagreed. It concluded that the ZO's .spacing requirements were valid. See also: Austin v. Older, 283 Mich. 667, 278 N.W. 727 (1938). See also: Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 1 01 S. Ct. 2882, 69 L. Ed. 2d 800, 16 Env't. Rep. Cas. (BNA) 1057, 11 Envtl. L. Rep. 20600 (1981). Case Note: The circuit court had found another portion of the ZO was an unconstitutional restraint on free speech because it granted unbridled discretion to the Zoning Administrator to grant or deny permits for modifications to nonconforming billboards which did not bring those billboards into full compliance. The trial court had severed that portion of the ZO from the ZO. Lamar had challenged that remedy. The appellate court found that section of the ZO was severable, as no other section relied upon it and its removal did not 10 © 2011 Thomson Reuters