Northern Ohio Sign Contractors Ass'n v. City of Lakewood

• Citation: 513 N.E.2d 324,32 Ohio St.3d 316
• Decision Date: 09 September 1987
• Docket Number: Nos. 86-962,86-986,s. 86-962
• Parties: NORTHERN OHIO SIGN CONTRACTORS ASSOCIATION et al., Appellants, v. CITY OF LAKEWOOD, Appellee. DELOREAN CADILLAC, INC. et al., Appellants, v. CITY OF LAKEWOOD, Appellee.
• Court: United States State Supreme Court of Ohio

Page 316

32 Ohio St.3d 316

513 N.E.2d 324

NORTHERN OHIO SIGN CONTRACTORS ASSOCIATION et al., Appellants, v. CITY OF LAKEWOOD, Appellee.

DELOREAN CADILLAC, INC. et al., Appellants, v. CITY OF LAKEWOOD, Appellee.

Nos. 86-962, 86-986.

Supreme Court of Ohio.

Sept. 9, 1987.

Syllabus by the Court

1. Pursuant to the municipal police power granted by Sections 3 and 7, Article XVIII of the Ohio Constitution, an ordinance may constitutionally be applied to regulate preexisting, nonconforming commercial signs which have been declared a public nuisance by a municipal government.

2. R.C. 713.15 does not prevent a city from exercising its police power to abate a preexisting use which has become a nuisance.

3. When a municipal government exercises its police power by adopting an ordinance to abate a nuisance, an amortization clause in the ordinance becomes an element to consider in evaluating whether the ordinance is unreasonable or arbitrary.

As part of a planned effort to restore vitality to its commercial areas, defendant-appellee, city of Lakewood, adopted a sign ordinance placing controls on preexisting, previously unregulated signs located in commercial areas. Because the city determined that some commercial signs constituted a blight that impeded revitalization of declining commercial areas, Ordinance No. 58-79 amended Chapter 1329 of the Codified Ordinances of the city of Lakewood, effective July 16, 1979, to impose consistent design, size, location, and illumination standards for all types of signs erected in the city. Although subject to variances, the ordinance requires sign owners to modify or remove preexisting nonconforming signs in order to achieve compliance within a five and one-half year period ending January 1, 1985, and provides for penalties of up to $200 per day for violations of the ordinance. Ordinance No. 52-85, enacted after the decision of the trial court below, amended Chapter 1329 to further declare that all existing nonconforming signs were nuisances. ¹

Plaintiffs-appellants, Northern Ohio Sign Contractors Association et al., in case No. 86-962, and DeLorean Cadillac, Inc. et al., in case No. 86-986, whose businesses and appurtenant signs are located in the affected commercial area, filed separate declaratory judgment actions. The cases were consolidated for trial and on appeal, and are now before this court.

Plaintiffs seek a declaration that the ordinance, as applied to preexisting, otherwise lawful, nonconforming signs, constitutes an unconstitutional taking of property in violation of their due process rights; that the ordinance exceeds the city's home rule powers granted in Section 3, Article XVIII of the Ohio Constitution; and that the ordinance conflicts with the prohibition of R.C. 713.15 against retroactive zoning ordinances. Plaintiffs also seek a permanent injunction against enforcement of the ordinance and its penalties.

The trial court rendered judgment for the city, declaring that the ordinance, as applied, is constitutional; is a proper exercise of Lakewood's police power; and, as a building code ordinance, is not in conflict with R.C. 713.15. The court of appeals affirmed.

The causes are now before this court upon the allowance of motions to certify the record.

W. James Mayer, Lakewood, Jr., Goldfarb & Reznick, Bernard S. Goldfarb, Morris M. Reznick, Mark V. Webber and Carl E. Cormany, Cleveland, for appellants.

Walter, Haverfield, Buescher & Chockley, Henry B. Fischer, John H. Gibbon, Frederick W. Whatley, Cleveland, William E. Blackie, Law Director, and Michael E. Murman, Lakewood, for appellee.

MOYER, Chief Justice.

The question presented by this appeal is whether constitutional due process or the prohibition of R.C. 713.15 against retroactive zoning ordinances prohibits the retroactive enforcement of a sign ordinance which requires the alteration or removal of previously lawful signs. We must determine whether the ordinance is a reasonable and lawful exercise of the city's police power which is rationally related to a legitimate interest in public health, safety, morals or general welfare.

For the reasons that follow, we hold that Ordinance No. 58-79 is constitutional and affirm the judgment of the court of appeals.

I

It is well-settled that courts will presume the constitutionality of a municipal ordinance and that the party challenging a legislative act of a municipality bears the burden of demonstrating its unconstitutionality. See Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69, 71, 9 OBR 273, 275, 458 N.E.2d 852, 855, appeal dismissed (1984), 467 U.S. 1237, 104 S.Ct. 3503, 82 L.Ed.2d 814; Dayton v. S.S. Kresge Co. (1926), 114 Ohio St. 624, 629, 151 N.E. 775, 776.

As the constitutional right of the individual to use private property has always been subservient to the public welfare under Section 19, Article I of the Ohio Constitution, ² such use is subject to the legitimate exercise of local police power pursuant to Sections 3 and 7, Article XVIII of the Ohio Constitution. Hudson v. Albrecht, Inc., supra, 9 Ohio St.3d at 72, 9 OBR at 275, 458 N.E.2d at 855; Pritz v. Messer (1925), 112 Ohio St. 628, 149 N.E. 30, paragraph one of the syllabus.

A municipal ordinance passed under such authority will be valid if it bears a real and substantial relationship to the health, safety, morals or general welfare of the public and if it is not unreasonable or arbitrary. Hudson v. Albrecht, Inc., supra, 9 Ohio St.3d at 72, 9 OBR at 275, 458 N.E.2d at 855; Benjamin v. Columbus (1957), 167 Ohio St. 103, 4 O.O.2d 113, 146 N.E.2d 854, paragraph five of the syllabus; Akron v. Chapman (1953), 160 Ohio St. 382, 52 O.O. 242, 116 N.E.2d 697, paragraph one of the syllabus.

The intent of Lakewood's Ordinance No. 58-79, as codified in Section 1329.01 of the codified ordinances of the city, was:

"(a) To promote attractive and maintain high value residential districts * * *;

" * * *

"(d) To control the design of signs so that their appearance will be aesthetically harmonious with their surroundings and an overall urban design for the area;

"(e) To eliminate any conflict between advertising (or identification) signs and traffic control signs which would be hazardous to the safety of the motoring public or pedestrian[s]."

The protection of real estate from impairment and destruction of value and the maintenance of the aesthetics of a community are legitimate governmental interests that may be protected by the reasonable exercise of a municipality's police power where such actions bear a substantial relationship to the general welfare of the public. These interests, therefore, may be properly considered by a legislative body enacting zoning ordinances. Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28, 30 OBR 33, 505 N.E.2d 966, paragraph two of the syllabus; Hudson v. Albrecht, Inc. supra, at paragraphs one and two of the syllabus.

II

Plaintiffs-appellants argue that the Lakewood ordinance, as applied to them, is an unconstitutional deprivation of property without due process of law.

Previous cases before this court have established the rule that neither zoning nor building ordinances may be enforced against preexisting, otherwise lawful, nonconforming structures absent a declaration of nuisance. Akron v. Chapman, supra, at paragraph two of the syllabus (zoning ordinance); Gates Co. v. Housing Appeals Board (1967), 10 Ohio St.2d 48, 39 O.O.2d 42, 225 N.E.2d 222 (building ordinance). See, also, Ghaster Properties, Inc. v. Preston (1964), 176 Ohio St. 425, 27 O.O.2d 388, 200 N.E.2d 328, paragraphs two, three and four of the syllabus (general statute regulating billboards); Sun Oil Co. v. Upper Arlington (1977), 55 Ohio App.2d 27, 35, 9 O.O.3d 196, 201, 379 N.E.2d 266, 271 (zoning ordinance regulating signs). Lakewood argues that the corollary to this rule is that an ordinance may be constitutionally applied to regulate preexisting nonconforming signs which have become a public nuisance. We agree.

The record of testimony and exhibits before the trial court demonstrates the existence of a sign blight which is the functional equivalent of a public nuisance adversely impacting the aesthetics, vitality and value of the city's commercial areas and creating a hazard to vehicular and pedestrian traffic. In addition, subsequent to the decision of the trial court, Lakewood amended Chapter 1329 of its codified ordinances to incorporate a declaration that all existing nonconforming signs constitute a nuisance. Contrary to plaintiffs' assertion that the city must prove that each sign individually represents a nuisance, we recognize that the collective effect of the signs upon the community cannot in all cases be appreciated by consideration of plaintiffs' signs individually. We conclude that the ordinance clearly bears a real and substantial relationship to the safety and general welfare of the public. Plaintiffs have failed to meet their burden of proving otherwise.

Plaintiffs next assert that the sign ordinance is unenforceable, as it contravenes R.C. 713.15 which prohibits retroactive zoning ordinances. ³ The city contends the ordinance constitutes a building code outside the scope of R.C. 713.15. However, it is not the characterization of the sign ordinance that is controlling. The controlling factor is whether the city has the authority to abate nuisances. R.C. 715.44, which authorizes the city to abate nuisances, must therefore be read together with R.C. 713.15. ⁴

R.C. 713.15 and 715.44 reflect the balancing of private and public interests in private property as defined in Section 19, Article I of the Ohio Constitution. ⁵ In view of our previous analysis of these interests, we hold that R.C. 713.15 does not prevent a city from taking legislative action pursuant to its police power to abate a preexisting use which has become a nuisance. See, also, C.D.S., Inc. v. Gates Mills (1986), 26 Ohio St.3d 166, 26 OBR 142, 497 N.E.2d 295.

Finally, plaintiffs...