Posted By: Dwight Merriam, Partner, Robinson & Cole LLP
Romulus, Michigan, a city of about 24,000 people, is just 20 miles from Detroit. I’ll bet you’ve been there and you don’t even know it. Why? Romulus is the community in which the Detroit Metropolitan Airport is located.
No one is quite sure where the name of the town comes from, but I can tell you that the city was organized in 1835 and the minutes of the very first meeting of the Township indicate that local officials voted to enact a “$2 bounty on every wolf ‘catched’ in the town of Romulus…” Reportedly, there were a large number of wolves in the area at that time. It seems to fit with the Greek myth of Romulus and Remus, raised by wolves.
Last week, the U. S. District Court for the Eastern District of Michigan handed down a decision granting, without oral argument, an outdoor advertising company’s motions for partial summary judgment in a case about regulating billboards. International Outdoor, Inc., V. City Of Romulus, 2008 U.S. Dist. LEXIS 87384 (ED Mich. October 29, 2008). The City of Romulus has been left to respond on the unanswered question of whether there is a severability clause that will save what’s left of the ordinance after the court held that the sign ordinance was facially unconstitutional.
We all know how tough it is to write and administer defensible sign ordinances with the blade of the First Amendment over our heads. The decision in this case suggests at least two corrective measures that municipalities might take to overcome deficiencies in their regulations.
First, Romulus went wrong, said the court, by having no statement of purposes: “Without a stated purpose or any intrinsic evidence regarding the enactment of the sign ordinance, the Court’s inquiry under Central Hudson necessarily fails. Accordingly, Defendant’s sign ordinance is facially unconstitutional.”
Practice Pointer No. 1: Always have a statement of purposes. Just last night, I was writing an article for a journal in which I was drafting a model ordinance for small wind turbines of the variety you might put up in your backyard. The first thing I wrote was – you guessed it – a statement of purpose. The objective here is to make sure that if a court ever sees the regulation that it will know that the municipality is operating from the basis of a permissible governmental objective. The four-part Central Hudson test, as you may recall, requires that the government demonstrate a substantial interest in support of the regulation, that the regulations directly and materially advance that interest, and that the regulation be narrowly tailored. These three parts (the first part provides that the commercial speech must concern lawful activities and not be misleading) can be readily recited with some additional supportive detail in a statement of purposes.
Second, the court found that the general standards in the regulations were too general. Those standards included the ubiquitous “be in harmony with the appropriate and orderly development of the surrounding neighborhood” and “[t]he proposed use shall not be detrimental or injurious to the neighborhood within which it is located, …” I’ll bet I could have made a small fortune selling rubber stamps with those two phrases 20 and 30 years ago when many of these regulations first came to be.
But that hackneyed language won’t hack it today. You have to be more specific and the criteria must be, as the U. S. Supreme Court has said in Shuttlesworth v. Birmingham (1969): “narrow, objective, and definite.”
Practice Pointer No. 2: You can use the general standards but drill down to more rock-solid specific criteria.
The question to ask yourself today is “Would my local ordinance survive the scrutiny that the Eastern District of Michigan gave to the ordinance in Romulus?”