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Townships often use zoning ordinances and police power ordinances for the regulation of signs. But sign regulation presents unique problems not encountered in the regulation of other land uses. In addition to the standard issues of authority and reasonableness inherent in any kind of land use regulation, signs raise issues of free speech and expression under the First Amendment. Here is a basic primer of what you need to know when regulating signs.
Zoning Ordinance, Police Power Ordinance or Both?
Two different kinds of ordinances are used by townships to regulate signs. Most of us are familiar with zoning ordinances, which regulate the location and character of land uses. Since signs are a kind of land use, they are subject to regulation under a zoning ordinance. The Michigan Zoning Enabling Act sets out the basic authority and process for adopting such ordinances.
The other kind of ordinance used to regulate signs is often called a “police power” ordinance or a “general” ordinance. These are regulatory ordinances that are designed to protect the public health, safety and general welfare. The authority to adopt such ordinances is implied under the Michigan Constitution, art 7, § 34, and expressly granted by MCL 41.181, sometimes referred to as the Township Ordinances Act, which provides that: “The township board … may adopt ordinances regulating the public health, safety, and general welfare of persons and property…”
Many townships use zoning regulations to control signs. Such elements as size, height, location and setback are familiar zoning markers, so a zoning ordinance generally fits the regulation of signs. The problem with zoning ordinance regulation of signs, however, is that they generally cannot prohibit existing uses because they are “prior nonconforming uses.” So once a sign is established, it can be difficult or impossible to ever remove the sign under a zoning ordinance. Almost everyone knows of an old sign that has persisted for years, even as the underlying users of the adjacent buildings have come and gone.
Police power ordinances are not limited by a per se requirement to allow the continuation of prior nonconforming uses. Within the limits of reasonableness, it is possible for a police power ordinance to remove signs over time of after a reasonable time. This is sometimes referred to as the “amortization” of the sign, to allow the owner to make a reasonable return on his investment in the sign before it must be removed or altered to meet current regulations.
A number of township have found that, to use their legal authority to its fullest, it is prudent to regulate signs under both a zoning ordinance and a police power ordinance. Future signs are best regulated under zoning, but existing signs require a police power ordinance so that the township has the option to remove existing signs when necessary. By maintaining both kinds of ordinances, your Township will be in the best position to address all the problems that signs can present.
Commercial On-Site Signs
Many signs are secondary uses that identify the business or activity that takes place on a particular parcel. These are referred to as “on-site” signs. Such signs can serve many purposes, such as advertising the business on the site, listing current special offers or prices of items sold on site, and directing patrons to particular areas of the property for particular items, to name some common purposes.
Typically, the sizes, numbers and locations of on-site commercial signs permitted in an ordinance will be sufficient to allow the reasonable use of signs for these purposes. In practice, townships have a wide variation in what they will allow for such on-site commercial signs. Some townships have very restrictive sign requirements, and others are more permissive. For the most part, the courts uphold the judgment made by townships in the regulation of such on-site commercial signs, unless a landowner demonstrates that the regulations unreasonably restrict the use of the property, which is a difficult burden for the landowner.
When commercial signs are located on a different property than the business to which they pertain, they are referred to as “off-site” signs or billboards. The same general principles apply to billboards as to on-site signs, and there is likewise a range of regulation by townships.
However, when billboards are located adjacent to interstate highways, freeways or primary highways, their regulation becomes subject to state law, the Highway Advertising Act, which (with some exceptions) limits township regulation of such billboards. The Highway Advertising Act sets standard requirements for the size, lighting and spacing of such billboards. A township must carefully determine whether its proposed regulation of such billboards is authorized by the terms of the Act.
First Amendment Considerations
Many signs communicate non-commercial messages, including political and religious messages. The regulation of these signs presents special issues under the First Amendment.
The first concern is whether such regulations are “content-neutral.” If the township’s ordinance requirements vary depending upon the message that a sign conveys, that raises a serious red flag.
But “content-neutrality” reflects a much more subtle concept than simply permitting some messages and prohibiting others (which is clearly unlawful, of course). As that concept is now understood by the courts, if an official must read a sign to determine whether it is permitted or not, then the regulations are not content-neutral.
For example, in a case just decided by the US Supreme Court this month, a municipality had different regulations for different non-profit signs, depending on the type of information they convey, such as directional signs (directing people to a group’s meetings), ideological signs (expressing particular opinions) and political signs (advocating a vote for a candidate or question). The sign ordinance in question treated temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs. Distinguishing between these types of signs clearly required that they be read, so the distinctions made between these types of signs were not “content-neutral,” even though they were not directed at particular messages. Reed v Gilbert, US Supreme Court (June 18, 2015).
If a regulation is determined not to be content-neutral, then a court will apply “strict scrutiny” to whether the regulation is reasonable, and the burden will be on the township to defend its validity. For such regulations to be found valid, the township must demonstrate both (1) that the regulation is designed to achieve a compelling governmental interest and (2) that the regulations are narrowly tailored to achieve that interest.
Although many significant public interests may justify the regulation of signs in general (traffic and pedestrian safety, visual blight, etc), it will be extremely challenging for a township to demonstrate that those interests (which possibly exist for all signs) can justify special regulation of certain non-commercial signs, but not others. In addition, by broadly restricting a vast array of signs, it will be difficult to demonstrate that the ordinance contains sufficiently “narrowly tailored” regulation.
Many townships currently use regulations that are not “content-neutral” as defined by the Supreme Court. Following the Reed v Gilbert decision, townships would be well-advised to review their sign ordinances to assure that they meet “content-neutrality” requirements, identify compelling interests that are advanced by particular strict regulations, and attempt to tailor those regulations as narrowly as possible.
— Bill Fahey
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Fahey Schultz Burzych Rhodes PLC, Your Township Attorneys, is a Michigan law firm specializing in the representation of Michigan townships. Our lawyers have more than 150 years of experience in township law, and have represented more than 150 townships across the state of Michigan. This publication is intended for our clients and friends. This communication highlights specific areas of law, and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.
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