In a recent decision from the Michigan Court of Appeals, an applicant challenged a provision that gave the board of zoning appeals (BZA) discretion to approve signs that do not comply with the sign ordinance. The applicant, who had submitted an application for a sign that did not comply with the sign ordinance, brought an appeal to the BZA in accordance with a provision that said the BZA may grant a special permit for signs that do not otherwise comply only if the proposed sign meets certain specific standards. Those standards generally required that the sign be consistent with the purpose and intent of the sign code, be compatible with the surrounding neighborhood, and not be detrimental to the public safety or welfare or any adjacent land use, but reserved the discretion to grant the special permit to the BZA. The applicant’s facial challenge alleged that the discretion to grant the special permit constituted a prior restraint that “has the potential for becoming a means of suppressing a particular point of view.” The court disagreed, noting that the applicant could have received a permit for a billboard that met the sign code without applying for a special permit (and thus being subject to the BZA’s discretion), and moreover that the discretion, absent any evidence of an unconstitutional application, was sufficiently limited by the requirement that a proposed sign meet the specifically enumerated standards for approval.

Despite rejecting the applicant’s facial challenge to the sign code, the court found for the applicant in its allegation that the BZA failed to support its decision to deny the special permit application with competent, material, and substantial evidence on the record. In this case, the record revealed an “egregious lack of factual findings,” noting only that “plaintiff was present, that several citizens were present to oppose the billboards, and that the two letters [of opposition] were submitted.” The record did not provide any reasoning for the BZA’s decision, but merely announced the denial. According to the court, quoting another Michigan case, “we cannot affirm a decision where the record is as devoid of factual or logical support as is the case here.”

International Outdoor, Inc., v. City of Harper Woods, Not Reported in N.W.2d, 2016 WL 1682799 (Mich. Ct.  App., April 26, 2016).