On October 27, 2011, the  Michigan Court of Appeals issued an unpublished opinion holding that the  expansion of a non-conforming sign was a violation of the township zoning ordinance and a nuisance per se.

Defendant sign company removed a portion of a non- conforming billboard and replaced it with a new sign face that was still non-conforming in terms of the township zoning ordinance, but which decreased the level of non- conformity.   The defendant did not seek township approval before updating its non-conforming sign.   The township brought suit, asserting that the non-conforming sign was a violation of the zoning ordinance and a nuisance per se.  Defendant sign company counter-claimed, alleging that the township’s sign regulations (spacing) violated the First Amendment and that the zoning ordinance did not provide standards for the zoning administrator’s determination on changing non-conforming uses.

The trial court held for the township, finding that the defendant’s sign was non-conforming in three respects:  sign surface was too big, sign was too tall and sign was located too close to another sign.   The trial court also found that while the new sign was in greater conformity with zoning ordinance requirements than the previous sign, the sign was still non-conforming as to spacing distance from other signs.   The trial court held that the revised sign was in violation of the zoning ordinance and was a nuisance per se.  The trial court ordered the revised sign removed within 21 days and dismissed Defendant’s counter claim.

On appeal, defendant argued that Michigan law prohibits the township from restricting the modification of a non-conforming use or structure if the modification lessens the non-conformity.   The Court of Appeals, however, found this argument to be without merit, noting that Michigan law does not authorize any improvement to a non-conforming use, exclusive of the application of the pertinent zoning ordinance.   Notably, the township’s zoning ordinance did not prohibit maintenance or modernization of a non-conforming sign if the proposed improvement did not exceed 30% of the replacement value.  Defendant’s cost of updating its billboard, however, exceeded 30% of the replacement cost.  Accordingly, it was a violation of the zoning ordinance and a nuisance per se.

Additionally, the Court of Appeals upheld the trial court’s striking of a sentence of the zoning ordinance that authorized the zoning administrator to make a determination on non- conforming uses, as there were no standards included to guide the zoning administrator’s decision.  The Court of Appeals also upheld the township’s spacing requirement for billboards, noting that the regulation was properly tailored as a restriction on commercial speech.

Township of Blair v Lamar OCI North Corporation, 10/27/11, unpublished