Township board repeals political sign ordinance

By: Jeremy Selweski | Macomb Township Chronicle | Published August 20, 2014

MACOMB TOWNSHIP — Under pressure from the American Civil Liberties Union (ACLU) and seeking to avoid any lawsuits, township officials chose to eliminate an ordinance that they approved six months ago in order to regulate the use of political signs in the township.

The decision was announced by Township Supervisor Janet Dunn at the Board of Trustees’ Aug. 13 meeting. Dunn stated that the township’s legal counsel had recommended that the board suspend its political sign policy pending the results of a U.S. Supreme Court decision that should settle the controversial matter once and for all. The board then voted unanimously to repeal the ordinance.

“I believe that it is in the best interest of Macomb Township to avoid the costs of being embroiled in litigation that will soon be decided by the United States Supreme Court without our involvement,” Dunn said. “Therefore, it is my recommendation that Macomb Township do away with its current (political) sign ordinance tonight and examine alternatives that will safeguard the aesthetics of our community without any unnecessary court litigation.”

Dan Korobkin, deputy legal director for the ACLU of Michigan, was thrilled to learn of the board’s decision when reached for comment the following day.

“Macomb Township did the right thing here by repealing this ordinance,” he said. “They should be commended for recognizing that their ordinance was unconstitutional. This is good news for supporters of the First Amendment, free speech and political speech. There’s nothing more American than putting a sign up on your property that expresses your political beliefs.”

The Board of Trustees initially approved the ordinance on Feb. 12. According to Township Clerk Michael Koehs, it was drafted in response to repeated complaints from residents as an attempt to prevent political candidates from posting unwanted signs on properties all over the township. The new regulations were intended to improve the aesthetics of the township by removing clutter and blight, as well as improve the safety of motorists and pedestrians by eliminating vision-obscuring obstacles.

The ordinance indicated that political signs must not exceed 32 square feet in area, must not stand more than 10 feet tall, and must be set back at least 6 feet from all property lines. Signs also could not be installed on any property more than 30 days before an election and had to be removed within seven days after an election. In addition, it declared that candidates must obtain written permission from the property owner prior to posting any signs on their property.

However, the constitutionality of the ordinance was questioned by a township resident and former political candidate, who brought it to the attention of the ACLU. David Radtke, a cooperating attorney for the ACLU of Michigan, then sent a letter to Dunn on June 25 urging that the Board of Trustees repeal the ordinance no later than July 10.

Radtke argued that the ordinance infringed on the rights of township residents to engage in political expression, that it unfairly restricted signage based on its content and subject matter, and that its requirement that candidates get written permission from property owners was too vague. He also cited a number of recent legal cases related to political sign regulation that federal courts have struck down, including cases out of Warren and Troy.

Korobkin stated that Macomb Township’s failure to meet the ACLU’s July 10 deadline was “all just water under the bridge now” that the ordinance has been repealed. He added that the township made a smart decision, given his organization’s strong track record of fighting political sign restrictions.

“Unfortunately, we’ve had a number of similar cases that we’ve had to bring to court,” Korobkin said, “and the result is always the same. Courts have consistently struck down ordinances like this because they are unconstitutional.”

But Township Attorney Larry Scott believes that “there’s a lot of conflict out there” concerning the legality of such ordinances. He stated many communities across the nation have political sign ordinances in place, and federal district courts have rendered conflicting opinions as to their constitutionality. He anticipated that the U.S. Supreme Court would issue a ruling in the case of Reed vs. Gilbert, Arizona, within the next 12 months, which should provide a definitive answer.

“It just made a lot more political and financial sense for Macomb Township to repeal its ordinance and await the Supreme Court’s decision, rather than risk potential legal action in the meantime,” Scott explained.

Still, Koehs believes that the Board of Trustees’ action may not have been necessary. Although he ultimately sided with the rest of his colleagues in voting to repeal the ordinance, his feelings on the issue were mixed. Koehs argued that because the November general election is less than three months away and the township does not have any elections scheduled for next year, the board could have chosen to do nothing without much consequence.

Even if the ACLU were to sue the township, he said, the Supreme Court’s ruling would likely come down before the local proceedings progressed very far.

“It’s really six in one hand, half a dozen in the other,” the clerk continued. “If (Reed vs. Gilbert) goes in our favor, then we’ll just have to re-pass the same ordinance that we already passed. If it goes against us, then our ordinance will be declared unconstitutional and struck down anyway. So it doesn’t do us any harm to just keep our ordinance in place. All this (decision to repeal) does is make it look like we got rid of our ordinance because we were worried about the ACLU suing us.”

Other board members, though, did not appear to see it that way. In her Aug. 13 statement, Dunn suggested that hanging on to the ordinance was not worth the risk.

“Because we have received overwhelming public support for (political) sign regulation, for reasons of safety and the aesthetics of our community, this action is particularly regrettable — however, necessary,” she said. “We have already begun the research for a viable alternative.”

According to Scott, these potential alternatives would likely involve ordinance language that does not single out political signs as being the only types of signs subject to regulation.

“There are others ways to prevent political candidates from posting signs on people’s property,” he said. “We are looking into some different options, and once we determine our best course of action, we will bring it back before the board.”

Scott added, however, that he was not given a specific timeline to follow, so it is not certain that the board will take additional action prior to the November general election.

Korobkin does not believe that an ordinance shielding residents and businesses from unsolicited political signs was needed in the first place. He stated that any candidate who puts a sign on someone else’s property without permission is clearly guilty of trespassing.

“There’s nothing wrong with taking down unwanted political signs on your own property,” he said. “That’s your right if you want to do that, and there are already laws on the books to protect you.”

But as Koehs pointed out, in a community like Macomb Township, which is still growing and developing at a rapid pace, there are other factors to consider. In particular, many township properties are not always closely monitored by their owners, so they often become targets for overzealous candidates looking to promote themselves.

“What about a developer who lives in Florida and owns 14 vacant properties here in Macomb Township?” he asked. “That’s the type of thing that we’re especially worried about. No one here wants to restrict anyone from expressing their political beliefs. We’re just trying to protect the health, safety and welfare of people in this community.”