*

This decision was originally issued as an “unpublished decision” filed on February 5, 2014. The

court has now designated the opinion as one recommended for full-text publication.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0047p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

HUCUL ADVERTISING, LLC, a Michigan

limited liability company,

Plaintiff-Appellant,

v.

CHARTER TOWNSHIP OF GAINES, a Michigan

municipal corporation,

Defendant-Appellee.

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No. 12-2343

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:11-cv-00682—Robert Holmes Bell, District Judge.

Argued: December 3, 2013

Decided and Filed: February 5, 2014*

Before: BOGGS, SILER, and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: Steven F. Stapleton, MILLER CANFIELD, Grand Rapids, Michigan, for

Appellant. Craig R. Noland, SMITH HAUGHEY RICE & ROEGGE, Grand Rapids,

Michigan, for Appellee. ON BRIEF: Steven F. Stapleton, MILLER CANFIELD, Grand

Rapids, Michigan, for Appellant. Craig R. Noland, William L. Henn, SMITH

HAUGHEY RICE & ROEGGE, Grand Rapids, Michigan, for Appellee.

_________________

OPINION

_________________

BOGGS, Circuit Judge. This case concerns the constitutionality of a zoning

ordinance that regulates the construction of billboards. Hucul Advertising, LLC, sought

1
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 2

permission to construct a billboard on its property in the Charter Township of Gaines,

in Michigan. The Township denied Hucul’s application on the ground that the proposed

billboard would violate Chapter 17 of the Gaines Township Zoning Ordinance, which

regulates signs within the Township’s boundaries. The ordinance at the time permitted

billboards only on property that was “adjacent” to the M-6 highway right-of-way, and

Hucul’s property did not satisfy the adjacency requirement. Hucul then submitted an

application to build a digital billboard on the property. That application was also denied,

as the property was not adjacent to the M-6, and the proposed digital billboard would be

located within 4,000 feet of another digital billboard, which was also a violation of the

applicable zoning ordinance. Hucul then applied to the Zoning Board of Appeals

(“ZBA”) for relief, seeking approval to install a digital billboard, which the ZBA denied.

The Township subsequently amended the ordinance’s adjacency requirement to also

require that any proposed billboard be built within 100 feet of the M-6 and to clarify

that, in order for a parcel to be adjacent to the M-6, it must “abut and have frontage on

the M-6.”

Hucul sued the Township in state court, challenging the ZBA decision, and

claiming, inter alia, that the zoning ordinance violated the First Amendment, that the

Township violated Hucul’s civil rights by enforcing the ordinance, and that the

Township violated the Equal Protection Clause by treating land adjacent to public

property differently from land adjacent to private property. The Township removed the

case to federal district court, and the district court granted summary judgment to the

Township on all issues. Hucul appeals, maintaining that the billboard regulations violate

the First Amendment and the Equal Protection Clause, and arguing that the district court

improperly exercised supplemental jurisdiction over the ZBA appeal.

We hold that the 4,000-foot spacing requirement for digital billboards constitutes

a valid “time, place, and manner” restriction on speech. Since Hucul’s proposed digital

billboard does not satisfy this requirement, Hucul would not be entitled to relief even if

its objections to the adjacency requirements had merit. Accordingly, we need not

consider whether the adjacency requirements violate either the First Amendment or the
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 3

Equal Protection Clause. With regard to Hucul’s jurisdictional claim, we hold that the

district court did not abuse its discretion in exercising jurisdiction over the ZBA appeal.

I

We review a district court’s grant of summary judgment de novo. Frazier v.

Honda of Am. Mfg., Inc., 431 F.3d 563, 565 (6th Cir. 2005). Summary judgment is

appropriate where “the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The question is “whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as a matter

of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). When ruling

on a summary-judgment motion, a court must draw all reasonable inferences from the

evidence in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).

We review for abuse of discretion a district court’s decision to exercise

supplemental jurisdiction over state-law claims. Blakely v. United States, 276 F.3d 853,

860 (6th Cir. 2002). “An abuse of discretion exists only when we are left with the

definite and firm conviction that the district court made a clear error of judgment in its

conclusion upon weighing relevant factors.” Veneklase v. Bridgewater Condos, L.C.,

670 F.3d 705, 709 (6th Cir. 2012) (citations and internal quotation marks omitted).

II

A

Hucul argues that the district court erred in holding that the 4,000-foot spacing

requirement for digital billboards did not violate the First Amendment. In particular, it

claims that the requirement is an impermissible restriction on commercial speech.

We must first decide what test to apply to determine whether the ordinance

violates the First Amendment. Hucul argues that the district court erred in applying the

“time, place, and manner” test for content-neutral restrictions on speech, instead of the
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 4

Central Hudson test for restrictions on commercial speech. Pl’s Br. at 16; see Clark v.

Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984); Central Hudson Gas &

Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980). Under the

“time, place, and manner” test, restrictions on speech “are valid provided [1] that they

are justified without reference to the content of the regulated speech, [2] that they are

narrowly tailored [3] to serve a significant governmental interest, and [4] that they leave

open ample alternative channels for communication of the information.” Prime Media,

Inc. v. City of Brentwood, Tenn., 398 F.3d 814, 818 (6th Cir. 2005) (quoting Clark, 468

U.S. at 293). Under the Central Hudson test,

we must (1) determine whether the expression is protected by the First

Amendment. For commercial speech to come within that provision, it at

least must concern lawful activity and not be misleading. Next, we ask

whether (2) the asserted governmental interest is substantial. If both

inquiries yield positive answers, we must (3) determine whether the

regulation directly advances the governmental interest asserted, and

(4) whether it is not more extensive than is necessary to serve that

interest.

Bench Billboard Co. v. City of Toledo, 499 F. App’x 538, 543 (6th Cir. 2012) (internal

alteration marks omitted) (quoting Central Hudson, 447 U.S. at 566), cert. denied,

133 S. Ct. 1252 (2013).

Hucul asserted its claim below under the Central Hudson test, arguing that the

challenged ordinance regulates commercial speech. The district court, however,

analyzed Hucul’s claims under the “time, place, and manner” test, on the ground that the

challenged ordinance is content-neutral on its face, i.e., it does not purport to regulate

commercial speech only, nor does it distinguish between commercial and noncommercial billboards. On appeal, Hucul continues to argue its claim under the Central

Hudson standard. The Township cites both tests in its brief but does not argue for the

use of one or the other; rather, it simply responds to Hucul’s arguments under the

Central Hudson test.

As a practical matter, the choice of which test to apply makes little difference

here: the two tests impose similarly demanding levels of “intermediate scrutiny,” Bench
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 5

1

See Prime Media, 398 F.3d at 824 (“As the Supreme Court has held, the framework for

analyzing regulations of commercial speech is substantially similar to the test for time, place, and manner

restrictions. And the commercial-speech tailoring requirement––a reasonable fit between the legislature’s

ends and the means chosen to accomplish those ends––is a close cousin, if not a fraternal twin, of the test

that we have applied here.” (internal citations and quotation and alteration marks omitted)).

Billboard Co. v. City of Covington, 465 F. App’x 395, 404 (6th Cir. 2012), and, as

relevant to this dispute, both tests impose similar requirements: under the “commercial

speech” test, the restrictions must “directly advance” a “substantial” governmental

interest, whereas under the “time, place, and manner” test, they must be “narrowly

tailored” to a “significant” governmental interest.1 In any event, we agree with the

district court that the appropriate test here is for “time, place, and manner” restrictions

on speech. We have held that, where an ordinance regulates both commercial and noncommercial speech and does not differentiate between the two, the application of time,

place, and manner scrutiny is appropriate. Id. at 405 (“Central Hudson’s form of

intermediate scrutiny is not appropriately applied to content-neutral ordinances that

regulate both commercial and non-commercial speech.” (citing Cleveland Area Bd. of

Realtors v. City of Euclid, 88 F.3d 382, 386 (6th Cir. 1996)); see also Prime Media, 398

F.3d 814 (applying the “time, place, and manner” test to analyze the constitutionality of

size and height restrictions for billboards); Prime Media, Inc. v. City of Franklin, Tenn.,

181 F. App’x 536 (6th Cir. 2006) (same). Accordingly, we evaluate the ordinance under

the “time, place, and manner” test.

B

As background, we note that “[b]illboards and other visual signs . . . represent

a medium of expression that the Free Speech Clause has long protected.” Prime Media,

398 F.3d at 818. At the same time, “they ‘pose distinctive problems’ that also have long

been subjected to the ‘police powers’ of States and cities because billboards and signs

‘take up space and may obstruct views, distract motorists, displace alternative uses for

land, and pose other problems that legitimately call for regulation.’” Id. (quoting City

of Ladue v. Gilleo, 512 U.S. 43, 48 (1994)). We analyze the spacing requirement for

digital billboards in that context.
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 6

To constitute a valid restriction on the time, place, and manner of speech, a

restriction must first be “justified without reference to the content of the regulated

speech.” Clark, 468 U.S. at 293. To determine whether a regulation is content-neutral,

we ask “whether the government has adopted a regulation of speech because of

disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989). The requirement that digital billboards be spaced a certain distance

apart cannot reasonably be considered an attempt to censor a message: it addresses

whether and under what circumstances one may build a billboard—whatever its

content—not what that billboard may or may not say. In addition, the purported goals

of the ordinance are content-neutral. They include “[e]liminat[ing] distractions that are

hazardous to motorists and pedestrians,” “[p]rotect[ing] and enhanc[ing] property

values,” preventing “visual chaos and clutter,” and “[p]rotect[ing] the natural beauty and

distinctive character of Gaines Charter Township.” TWP. OF GAINES, MICH., ZONING

ORDINANCE § 17.1. The ordinance thus aims to promote traffic safety and aesthetics and

preserve property values, without reference to the content of the regulated speech.

Hucul does not appear to dispute that the spacing requirement for digital billboards is

content-neutral.

To constitute a valid restriction, the governmental interests that the spacing

requirement purports to serve must also be significant. We have long recognized that

governmental interests in aesthetics, traffic safety, and the preservation of property

values constitute “significant governmental interests.” See Metromedia, Inc. v. City of

San Diego, 453 U.S. 490, 507–08 (1981) (affirming that “the twin goals that the

ordinance seeks to further—traffic safety and the appearance of the city—are substantial

governmental goals”); see also Rzadkowolski v. Vill. of Lake Orion, 845 F.2d 653, 655

(6th Cir. 1988) (upholding regulations that “promote significant and legitimate aesthetic

interests which enhance property values and psychological well-being for individuals

and families”). Hucul does not dispute that the asserted governmental interests are

significant. We agree with the district court’s determination that the regulation easily

satisfies this criterion.
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 7

The next question is whether the regulations are narrowly tailored to serve the

governmental interests mentioned. As the Supreme Court has explained, “[s]o long as

the means chosen are not substantially broader than necessary to achieve the

government’s interest . . . the regulation will not be invalid simply because a court

concludes that the government’s interest could be adequately served by some lessspeech-restrictive alternative.” Ward, 491 U.S. at 800. Rather, we only require “a

reasonable fit between the legislature’s ends and the means chosen to accomplish those

ends.” Prime Media, 398 F.3d at 822 (citations and internal alteration and quotation

marks omitted).

To determine whether the ordinance’s spacing requirement is “narrowly

tailored,” it is helpful to briefly review controlling precedent on this issue. In

Metromedia, the Supreme Court invalidated San Diego’s prohibitions on outdoor

advertising on the ground that they were content-based, but a majority of the Court

would have found that even a total ban on billboards was “narrowly tailored” to achieve

the interests of aesthetics and traffic safety. See Prime Media, 398 F.3d at 820

(explaining the Supreme Court’s reasoning). In Ward, the Supreme Court upheld New

York City’s requirement that a city sound technician control the mixing board during

concerts at a bandshell in Central Park, despite the availability of alternative methods

of regulating sound volume. Ward, 491 U.S. at 800 (“It is undeniable that the city’s

substantial interest in limiting sound volume is served in a direct and effective way by

the requirement that the city’s sound technician control the mixing board during

performances. Absent this requirement, the city’s interest would have been served less

well.”). And in Members of the City Council of Los Angeles v. Taxpayers for Vincent,

466 U.S. 789, 808 (1984), the Court upheld a complete ban on posting signs on

telephone poles and similar public property, reasoning that “the City did no more than

eliminate the exact source of the evil it sought to remedy.”

Consistent with the Supreme Court’s reasoning, in Rzadkowolski, we “upheld a

billboard regulation as sufficiently tailored to achieve the interests of aesthetics and

traffic safety even though the regulations banned billboards in all but the small village’s
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 8

one industrial zone.” Prime Media, 398 F.3d at 821. We “upheld the restrictions

because most of the village was residential, and the restrictions promote[d] significant

and legitimate aesthetic interests which enhance property values and psychological wellbeing for individuals and families. They may [have] also minimize[d] traffic

obstructions and possible visual hazards.” Id. (quoting Rzadkowolski, 845 F.2d at 655).

Likewise, in Prime Media, we upheld size and height restrictions for billboards as

“narrowly tailored” to the City of Brentwood’s interests in avoiding visual blight and

improving traffic safety. Id.

Hucul, framing its argument in terms of the related requirements under the

Central Hudson test, argues that “the regulations do not directly advance the necessary

governmental interest.” Pl.’s Br. at 16. First, Hucul points out that the Michigan

Highway Advertising Act (“MHAA”), Mich. Comp. Laws §§ 252.301-.323, allows for

digital billboards within 1,000 feet of each other. But as the district court explained, the

MHAA sets forth “a minimum spacing requirement rather than a mandatory or

maximum spacing requirement.” See Mich. Comp. Laws § 252.317 (providing that a

sign structure “shall not be erected closer than 1,000 feet to another sign structure on the

same side of the highway”) and Twp. of Homer v. Billboards by Johnson, Inc., 268 Mich.

App. 500, 504 (2005) (holding that the MHAA “sets forth minimum requirements that

a township cannot fall below, but that a township is free to exceed”). The fact that

different townships may exercise their discretion differently and reach different

judgments does not render the restrictions imposed by any one township unreasonable

and not “narrowly tailored” to a township’s goals.

Second, Hucul claims that the Township “does not justify” its decision to treat

digital billboards differently from static ones, which are not subject to the 4,000-foot

spacing requirement. Pl.’s Br. at 19. As the district court explained, however, the

Township need not offer an exact justification for the particular number that it chose.

In Prime Media, we recognized that “ask[ing] the City to justify a size restriction of

120 square feet over, say, 200 square feet or 300 square feet would impose great costs

on local governments and at any rate would do little to improve our ability to review the
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 9

law—because any further explanation assuredly would contain the kind of aesthetic and

subjective judgment that judges are not well-equipped to second guess.” 398 F.3d at

823–24. The fact that the Township could reasonably have imposed a spacing

requirement of less than 4,000 feet does not render its choice unreasonable or

substantially broader than necessary to achieve its goals. In addition, the Township did

in fact justify its decision to treat digital billboards differently. As the district court

explained, and as Hucul’s own witnesses acknowledged, digital billboards can have a

greater effect on safety and aesthetics than static ones due to their increased visibility

and changing display.

Hucul cites a Michigan Court of Appeals case in which the court struck down a

ban on “readily changeable signage,” where the defendant “offer[ed] no justification for

this restriction and [the court could] discern none.” See Outdoor Sys., Inc. v. City of

Clawson, 686 N.W.2d 815, 821 (2004). In that case, the zoning ordinance banned all

“billboards,” which it defined as signs a) unrelated to the principal use of the premises

and b) on which the display could readily be changed. Id. at 818. The court held that

the city’s distinction between signs that could and could not be “readily changed”

effectively prohibited outdoor-advertising companies from doing business and without

justification. Id. at 821.

Hucul argues that “the District Court did not like the holding in Outdoor

Systems . . . and simply failed to follow it.” Pl.’s Br. at 20. But Hucul’s objections are

unfounded. As a preliminary matter, we note that a state court’s interpretation and

application of the First Amendment of the United States Constitution are not binding on

this court. Regardless, Outdoor Systems is easily distinguished from this case, since it

dealt with what was effectively a ban on all billboards unrelated to the premises on

which they were built, rather than a restriction on digital signs that can change visually

from moment to moment. As the state court reasonably found, the fact that a sign may

change from time to time when space is leased to a new advertiser does not necessarily

render it more of an aesthetic or safety concern than a sign that cannot change at all.

Such an argument does not apply, however, to digital billboards, which change
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 10

constantly, and may very well present greater safety concerns (and perhaps greater

aesthetic ones) than do static billboards—digital billboards may be animated, and they

may be brighter and more distracting than static ones. Indeed, as Hucul acknowledged,

digital billboards are visible from a greater distance and may be more effective at

drawing the viewer’s attention. Accordingly, we cannot conclude that the Township’s

decision to treat them differently was unreasonable. Again, although the government’s

restriction on speech must “reasonably fit” the ends it seeks to achieve, the fit need not

be perfect. Moreover, Hucul offers no evidence suggesting that a 4,000-foot spacing

requirement provides no incremental benefits over a less restrictive regulation. We hold

that the Township’s “time, place, and manner” restriction is “narrowly tailored” to its

ends.

Finally, we must determine whether the spacing requirement leaves open ample

alternative channels for communication. We conclude that it does. The regulation

permits digital billboards that satisfy the spacing requirement and static billboards

spaced more closely together, and does not foreclose the use of any other modes of

communication. See Prime Media, 398 F.3d at 819 (holding that “the regulations leave

open ample alternative communication because they permit billboards that satisfy the

. . . restrictions” and because they “do ‘not affect any individual’s freedom to exercise

the right to speak and to distribute literature in the same place where the posting of signs

on public property is prohibited’” (quoting Taxpayers for Vincent, 466 U.S. at 812)).

Hucul does not argue that it does not have adequate alternative means of communication

at its disposal.

In view of the foregoing analysis, we hold that the billboard-spacing requirement

does does not violate Hucul’s First Amendment right to free speech. Since the

requirement is valid, Hucul’s failure to satisfy it is dispositive of its remaining claims

for relief aside from its jurisdictional claim, which we turn to below.
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 11

III

Hucul argues that the district court “abused its discretion when it opted to

exercise supplemental jurisdiction over [Hucul’s] purely state law zoning appeal.” Pl.’s

Br. at 26. Hucul argues that the district court should not have decided the appeal; rather,

it should have left the matter for a state court to decide.

Under federal law, “in any civil action of which the district courts have original

jurisdiction, the district courts shall have supplemental jurisdiction over all other claims

that are so related to claims in the action within such original jurisdiction that they form

part of the same case or controversy under Article III of the United States Constitution.”

28 U.S.C. § 1367(a). This includes supplemental jurisdiction over “state claims for onthe-record review of local administrative action.” City of Chicago v. Int’l Coll. of

Surgeons, 522 U.S. 156, 171 (1997). Claims form part of the same case or controversy

when they “derive from a common nucleus of operative facts.” Blakely, 276 F.3d at 861

(citation omitted).

Here, Hucul’s zoning appeal involves the same factual issues as Hucul’s related

federal claims, i.e., the denial of its application for permission to construct a digital

billboard on its property. Hucul does not dispute that the district court had, a priori, the

right to exercise jurisdiction over the state-law zoning appeal on the grounds that the

state appeal and the federal claims formed part of the same case or controversy.

The question is whether the district court nonetheless abused its discretion in

exercising supplemental jurisdiction. Under 28 U.S.C. § 1367(c), a district court “may

decline” to exercise supplemental jurisdiction “if—

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.”
No. 12-2343 Hucul Adver. v. Charter Twp. of Gaines Page 12

None of those exceptional circumstances is present in this case, and Hucul does

not argue otherwise. When one of those circumstances is present, we review the district

court’s decision not to exercise supplemental jurisdiction for abuse of discretion. But

in the absence of any such circumstance, it does not appear that a court would be

authorized—let alone required—to decline to exercise jurisdiction. The statute, in

authorizing the district court to decline to exercise supplemental jurisdiction under

certain circumstances (“district courts may decline”) (emphasis added), would appear

by implication to require the exercise of jurisdiction under all other

circumstances—expressio unius est exclusio alterius. Therefore, where no statutory

exception applies, a district court cannot abuse its discretion in exercising supplemental

jurisdiction over a state-law claim that forms part of the same case or controversy.

In any event, the district court did not abuse whatever discretion it may have had

by deciding the state-law zoning appeal in this case. Hucul does not argue that the

zoning appeal raised a novel or complex issue of state law or predominated over Hucul’s

numerous federal claims. Nor did the district court dismiss all the claims over which it

had original jurisdiction; instead, it resolved Hucul’s First Amendment and equalprotection claims on the merits. Finally, Hucul does not argue, nor do we find, that other

compelling circumstances exist for declining to exercise jurisdiction in this case.

IV

The judgment of the district court is AFFIRMED.