good afternoon your honor may please the court my name is steve stapleton and i represent hugo advertising o c it's a privilege and an honor to be in this court i have had the privilege and honor in the previous occasion and i appreciate the ability to argue this case before you today if i could you and i would like three minutes thank you this appeal involves two decisions from the district court and i suppose it's easy to label this case as a billboard case but really i was not the trial counsel in this case i came on for the appeal but this case is just about just as much about process and the proper process as it is involving the billboard and attendant regulations but the two decisions we have and i think are brief to radically separate the issues we have the able to two thousand and twelve opinion an order of judge bell affirming games charter townships the c b s denial of plaintiff's appeals and variance requests which were decided solely under michigan law and then two months later we have a few months later we have the september fourteenth two thousand and twelve opinion an order of the district court granting the township's motion summary disposition and denying you could ever tyson's motion for summary disposition purely on the purely federal claims that there ever was a location that was appropriate for a billboard this is the location in this case the township will argue we have in this case if you have a piece of property you have them six highway public highway recently constructed in the last fifteen years and out goes through condemns property obtains all the right of way and then you have private owners are budding this six but then you have a little strip in between that's not right of way was it designated as officially right of way its feet title ownership by the state not only just by the state of michigan but it's so if you truly were to way and then the ems and then the title property and then my client but if it was a private owner own that no problem he'd meet the requirements and be able to put up a billboard so i would argue that however whatever level of scrutiny you wish to apply the safety  hysterics issue with respect to the billboard in the adjacency in the abutting that regulation can reasonably argue the township cannot reasonably argue that that advances any safety or is that it concerns those are valid which i have a little bit of different arguments but the adjacent in a budding argument first of all in our brief adequately points out there are other billboards other digital billboards and other billboards which were allowed to be constructed prior admitted prior to the under the previous zoning ordinance which really didn't change much when you look at the the wording they used some six state trunk line and then they amended it to a budding i'm six directly  but really when you look at it you're saying township what were you trying to do when you when you connected this ordinance or you're enforcing this ordinance or how you interpret in this ordinance what you're trying to do well the purpose the safety nets that is what because safety in hysterics doesn't have anything to do some reason some private owner goes in and buys it not my client adjacent to but somebody if you look at it in the brief you'd see nobody would want to buy that there'd be no reason to put a billboard there so our argument is there's not there's no legitimate government interested variance that regulation doesn't directly advance the interests not need nearly tailored in any manner whatsoever for that issue with respect to the four thousand spacing foot spacing requirement again what we have in this case we have billboards th s provided they meet the requirements of advance the appropriate interest narrowly tailor it they can create additional or further spacing or permits but what do we have here a thousand to four thousand all the sudden now it's a four thousand  spacing requirement what's the well i would argue first of all we'd have to find out why they're doing that and they'd have to be and be narrowly tailored they'd have to have some evidence of that but case law has suggested that you can go there actually has been a case case the city of but i'll tell you when you go through the record you'll find that the township made that distinction in their purpose you know they keep going back to the purpose this is what we're doing but their purpose doesn't distinguish between the safety  between whether it's a digital billboard just saying they didn't put into it i mean i guess i would say i presume that by digital it means that the message can change rapidly can be animated things of that sort and at least as a standalone billboard that is not digital you just you can see it maybe it's not lit up at night and somehow the fact that there's a digital billboard in it changes in the way you would regulate that maybe with how many times you can change what's the brightness those types of regulations but to just blank at least you're sort of getting into is this the sort of thing that requires it doesn't require narrow tailoring in the strict scrutiny sense that this is the absolute best regulation that you could have right if you say digital billboards there's a rational reason for thinking that they are different from others in general on average and i responded not right and that is a fair question and my response would be that the record should show that there is evidence that the township both are lying and when they are inactive that ordinance or denied my clients a variance is to show this expert that saying just like you were saying you know whatever the reasons were this is why we're not going to allow it but then we say but wait mr expert you have one you have one thousand feet away you already have let me go back to the first part of that just want to make sure that i have this geometry correct  i have a piece of property that abuts the m six and let's say it's two hundred feet deep can i put a billboard anywhere on that two hundred feet lot under the games township board and see if the hundred it has to be one hundred foot back depending on where you are going to be but i do it could be further back it could be the next lot only has one hundred foot depth and you're in behind that with your lot you're saying you could not have the billboard correct under games townships but that's what we're talking about is yeah and in fact it's almost the issue here it's one hundred ten feet of things so technically we this is a very important piece of property for this particular case are are there are there any places where m dot itself phones in a budding lot or is it only this strip that you talked about that m now there are other areas that are along them six where can you would you could go back behind that lot no not under there because we wouldn't be a budding adjacent to this state that i'm six because there'd be that even if it's adjacent to property it also has to be adja how can there be a difference argument really rests on what i just went through that the same billboard could be two hundred feet back or one hundred one feet back and it be ok on this property and not on your property i mean it depends merely the fact that i mean that the public entity owns it and if it were a private entity it could be allowed to the ordinance that is their argument that is does m dot allow people to put billboards on its right great not that i have no again the distinction is in your raising is just between you as a private owner who's the second lot back from a different private owner who happens to be the directly a buddy what the other one i want to hit on for the minute and a half is the appeal judge bell who i respect greatly in a bend in his court a long time i do not understand why he decided to rule condition opinion on the state claim the administrative appeal when pending motions for summary judgment on the federal claims were were had been filed and once they are filed it's my position that there were exceptional circumstances that would justify him deciding whether the federal claims should go forward or had any merit to what he wanted to do make a decision that before he decides to exercise supplemental jurisdiction with the abuse of discretion standard i realize it's a high high standard except we don't know why he took it because he doesn't mention it in there are there any cases that say that supplemental jurisdiction depends on whether you decide the state part first with the federal  recognize that but when you look to see the dearth of cases on the sixth circuit relating to review of an administrative action in you see how the courts have treated it to say look if you can deal with the federal claims and you address those and you you dismiss those there's no reason for you to exercise supplemental jurisdiction there's a comprehensive state law scheme in place in michigan for the state courts to address that and are there any cases that  circuit overturn an exercise of such discretion i have not seen them although they have been lots of language saying why you were right not to do it right but i would argue that he should have put something in his brief to and what i'd like to point to the court in it's in the record evidence and it's docket number seven the parties before judge bell prepared a rule sixteen joint status conference report and in that joint status conference report the parties asked judge bell to decide the appeal and i'll just i'll just quote from again this was a this was a mutual request in our joint staff report docket number seven the parties are prepared to file the record from the zoning board of appeals and brief the appeal issues raised in count eight of the complaint as directed by the court and when that occurred there was no motion for summary disposition pending and i remember discussing with judge bell in i think the logic at the time is we normally would want to have you know the administrative decision if we could avoid constitutional issues that's what you try to do we asked judge bell to consider the the appeal and it was a joint request and then shortly thereafter the parties filed a stipulated record briefing schedule in its docket number thirteen and i  not heard any challenger criticism of judge bell's opinion it was very detailed it was very oriented to the the issues that would arise and i am mindful that as a general proposition this quarter the federal courts do not want to get in boiled in local zoning matters but i think this is a little different when we think about the important constitutional issues that are play so i'll just end it with that comment i think it was totally appropriate for judge belvin make that decision that he made th to the summary disposition or summary judgment stage on the constitutional issue and who objected to that after it was over nobody and i in you could read all the briefs in the in the trial court and there was not an objection raised the other thing i'd point out just procedurally that i don't know if it's important but what's important to me in the client and i think what's important to municipalities in general is guidance from this court on a very very important issues relating to to traffic sin and i think we ought to embrace the idea that you know the technology is great the technology provides a lot but it also provides a unique challenge and particularly in the area of billboards which are u nique in the sense that you are your target audience are motorists your target audience or a captive audience you can't turn off a t v looking billboard like you can type turn off your cell phone and i guess i would submit and i and i don't want to sound over passionate about this but let's let's appreciate that when you're going down a highway at seventy miles an hour you're moving one hundred three feet per second and if you've got  field of position field of vision that you can't turn off and they switch every six or eight seconds depending on the regulation and they're conspicuous i would submit that they're designed to grab your attention and it is important that we strike a administrator denied it end of story it was a second application it was that second application is the one that went to the z b a the second application is the one that dealt with the digital technology and i think what's important  at least from my perspective is that the court really address the distinction between the static billboard and what it presents and the digital billboard and what it presents in terms of the twin goals of the static and traffic safety and we can go back to early supreme court precedent the metromedia case in san diego case in one thing that has been consistent all these years is that those twin goals have been recognized this important those twin goals have been recognized as you don't need empirical evidence you don't need scientific studies to allow local municipalities to to make a balancing or legislative judgments about this technology and that's as true as today as it was years and years ago before this digital technology and i do submit it that it's important  fact that they are attention driving we are all motorists we do understand this and even the current cases you can look at all the current cases at least most of the truly acknowledge that this is something within  application is only for a digital billboard if we uphold the four thousand foot digital billboard park do we even really need to address the hundred foot depth the sort of things i if the a j if the four thousand foot limit stands then this billboard can't stand regardless of the adjacency rules for it is that fair and therefore that's in one sense could think this is the only thing that's before us and also i would ask the court to keep in mind that we started out with an eight count complaint two counts had to do with declaratory rulings on the adjacency issue those counts were dismissed so i think given that we're dealing with a digital billboard application that's really what's before the court that if the court acknowledges the four thousand foot spacing requirement i do think the adjacency issue is does not control the result it does not have to be  we're not depending on it for the court's summary judgment a decision did that rest on both prongs both parts we're talking about here it addressed both in that it failed under each independently did i think walk through these the ordered standards and it did talk about adjacency you need to talk about the spacing and as far as the factual discussion i had with your adversary do you have any quarrel with that is that basically correct well i think the the particular parcel it issue does not a but the the m six there is intervening private property managed and that but the sort of the discussion i head was that there billboard let's call it one hundred fifty feet back and there's one hundred feet of somebody else in front of them the next lot over just happens to be two hundred feet deep they put a billboard  that the ordinance that issue was amended and the ordinance city issue kind of addresses that it says billboards are only permitted within one hundred feet of the m six freeway yes in the i one i  two and that is again that's that was exhibit c to our motion for summary disposition and that anybody but i'm sorry they with me will now it's within a hundred feet but it still has to be adjacent so if the lot if x owns the first seventy five feet of setback he can't put his billboard ninety five feet from the right of way because he's not adjacent to it is that correct he has to have bought it and be within one hundred whereas the person next to him who has one hundred or five hundred feet of setback he could put his billboard ninety five feet right from the right way though those were his provisions did change and that is something that was addressed by a judge bell when he got to the point of well i'm not i'm not but the moment i'm not so concerned about what the old ones were if they have been changed i'm i accurately representing with the new ones are right and that and that is again in the record the new ordinance was was adopted i just apologize i part of my practice has been representing governmental agencies in rhode authorities and i do have a particular set maybe over sensitivity to this distractibility issue and i would respectfully or with respect to the aesthetics again the general term is that x can be recognized as a legitimate interest however under whatever level of scrutiny you apply whether it's the higher level or the intermediate there still has to be a very specific finding what aesthetics it is that close to a neighborhood is it how close is it to the residential will it how will the lighting do this what is it going to look like is it in an industrial area or commercial area this is owned less common sense view is the more you might need to study it isn't that that if you say that digital billboards that move in that are more brightly lit or likely to be more distracting as or  can you give me an example of something that's been up as ordinance that's been held unconstitutional on the federal level federal constitution because there wasn't an adequate basis what's your best case for that well what i would answer is you do have there is case law certainly that recognizes certain regulations and spacing requirements and how many you know i would say the spacing requirements would be the biggest regulation where they've said ok eighteen hundred thousand feet ok now we're going to do four thousand and what's the next closest reported case a little over two thousand what's the reason what's the just reported cases this federal courts on and literal constitutes a spacing no there has been i wish i would have there was one i think it pennsylvania was a state law case but i have not seen a federal case ok because at least that aspect the you're asking us to hold it it's unconstitutional under the federal constitution well you what i'm asking is is only that they have to comply with the scrutiny that's that's a political tool and not just to say safety as that x once they start exceeding things the the level of scrutiny is put in acted by the interpretation of the federal constitution so wrecked depending on which is why asking for a case i know and we the cases we cited show even a reasonable degree of even under the intermediate level of scrutiny would require them to come up with more than just safety n