State v. Diamond Motors, Inc.

• Decision Date: 28 June 1967
• Docket Number: No. 4592,4592
• Citation: 50 Haw. 33,429 P.2d 825
• Parties: STATE of Hawaii v. DIAMOND MOTORS, INC. STATE of Hawaii v. Glenn D. ALEXANDER, dba Neon Hawaii.
• Court: Hawaii Supreme Court

Page 825

429 P.2d 825

50 Haw. 33

STATE of Hawaii v. DIAMOND MOTORS, INC.

STATE of Hawaii v. Glenn D. ALEXANDER, dba Neon Hawaii.

No. 4592.

Supreme Court of Hawai'i.

June 28, 1967.

Syllabus by the Court

1. A city ordinance regulating the location and limiting the size of outdoor signs is a proper exercise of the city's police power for the public welfare when reasonably necessary and appropriate for the accomplishment of an aesthetic objective and need not be based on economics, health, safety or morality.

2. A party charged with violating a city ordinance who complains that the classifications in the ordinance are unreasonable has the burden of showing unreasonableness.

3. A party who complains that classifications in a city ordinance deprive him of the equal protection of the law has the burden of showing that the ordinance created against him the discrimination of which he complains. James G. Jung, Jr., Greenstein & Cowan, Honolulu, for appellants.

J. Garner Anthony & John H. Plews, Robertson, Castle & Anthony, Honolulu, for The Outdoor Circle, amicus curiae.

Richard T. Ishida, Deputy Pros. Atty., William H. Yim, Deputy Corp. Counsel, City and County of Honolulu, Honolulu, for appellee.

Before RICHARDSON, C. J., and MIZUHA, MARUMOTO, ABE and LEVINSON, JJ.

LEVINSON, Justice.

In 1957 the City and County of Honolulu enacted Ordinance No. 1557 which was codified, after the adoption in 1959 of the Charter of the City and County of Honolulu, as Article 26 (Signs Regulations) of Chapter 13 (Regulations Promoting General Welfare) of the Revised Ordinances of Honolulu 1961. The ordinance is comprehensive in nature and provides for the regulation and control of outdoor signs, the location, erection, maintenance and use of signs, and penalties for the violation thereof. It prohibits, among other things, the erection and the maintenance in industrial districts of ground signs exceeding 75 square feet in area or exceeding 16 feet in height from the ground. ¹

Appellant Alexander is the owner of a ground sign 40 feet high and more than 75 square feet in area, which he installed in 1965 upon the premises of appellant Diamond Motors, Inc., located in an industrial district on the main highway between Honolulu International Airport and downtown Honolulu and the Waikiki beach area. As provided in the ordinance, the City's Building Superintendent gave written notice to appellants to correct the violation by appropriately reducing the area and height of the sign within 20 days. Appellants failed to make the corrections.

Each of the appellants was, thereafter, charged by an information filed August 25, 1965 with a violation of the ordinance and, upon a consolidated trial by jury, was found guilty as charged. Judgments were entered July 13, 1966. Appeals to this court have been consolidated and are based upon the trial court's denial of appellants' written motion to dismiss filed prior to trial and upon the trial court's denial of appellants' oral motion for judgment of acquittal made after the appellee rested in the trial.

Appellants' opening brief presents six questions which are said to be involved in these appeals. ² In our opinion, the following two of them are without merit: (1) the claim that the provisions of the ordinance regulating non-billboard type of outdoor advertising are ultra vires; (2) the claim that the application of the ordinance to appellants is a denial of free speech in violation of the First Amendment to the Constitution of the United States and of Article I, Section 3, of the Constitution of the State of Hawaii. ³

We now consider three of the other four questions.

Appellants assert: (1) that the ordinance, including its application to appellants, is based exclusively upon aesthetic considerations; (2) that legislation based exclusively upon aesthetic considerations is outside the scope of police powers and therefore invalid; and (3) that application of the ordinance to appellants constitutes a taking of private property without the payment of compensation in violation of the Fifth Amendment to the Constitution of the United States and Article I, Section 18 of the Constitution of the State of Hawaii.

Appellee disputes the first assertion and argues that the ordinance was enacted for a number of purposes, among which was the preservation of aesthetics as a means to the end of protecting and promoting the general welfare of the people of the City and County of Honolulu, particularly by protecting and promoting the tourist trade and thereby the economic well-being of the City and County of Honolulu.

Appellee's answering brief admittedly 'does not extend to supporting the proposition that aesthetics alone is a proper objective for the exercise of the City's police power.' Perhaps, the 'weight of authority' in other jurisdictions persuaded the City to present the more traditional arguments because it felt that it was safer to do so. However, the brief of The Outdoor Circle as amicus curiae presents, as we think, a more modern and forthright position. ⁴

We accept beauty as a proper community objective, attainable through the use of the police power. We are mindful of the reasoning of most courts that have upheld the validity of ordinances regulating outdoor advertising and of the need felt by them to find some basis in economics, health, safety, or even morality. See Thomas Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S.Ct. 190, 61 L.Ed. 472 (1917). We do not feel so constrained.

Hawaii's constitution provides:

'The State shall have power to conserve and develop its natural beauty, objects and places of historic or cultural interest, sightliness and physical good order, and for that purpose private property shall be subject to reasonable regulation.' (Article VIII, Section 5.)

Appellants argue that this constitutional provision has no application to this case because the offending sign is located in an industrial area. We do not agree. The natural beauty of the Hawaiian Islands is not confined to mountain areas and beaches. The term 'sightliness and physical good order' does not refer only to junk yards, slaughter houses, sanitation, cleanliness, or incongrous business activities in residential areas, as appellants argue.

The question that we are required to decide is not unlike that presented in Merritt v. Peters, 65 So.2d 861 (Florida 1953). In that case the county commissioners adopted regulations governing the erection of commercial signs and limiting their size. The party involved insisted that the regulation was an arbitrary and unreasonable exercise of the police power by the county. The court said:

'We have no hesitancy in agreeing with him that the factors of health, safety and morals are not involved in restricting the proportions of a sign board, but we disagree with him in his position that the restriction cannot be sustained on aesthetic grounds alone. In City of Miami Beach v. Ocean & Inland Co., 147 Fla. 480, 3 So.2d 364, we think we decided the point contrary to the appellant's view. We held in that case that attractiveness of a community like Miami Beach was of prime concern to the whole people and therefore affected the welfare of all. We think the principle applies to the territory across the bay where the appellant's property is situated. * * *' (p. 862.)

Cromwell v. Ferrier, 19 N.Y.2d 263, 225 N.E.2d 749 (New York 1967) upheld the constitutionality of a town zoning ordinance which was a comprehensive and detailed plan for regulation of signs in the township. The court said:

'* * * Advertising signs and billboards, if misplaced, often are egregious examples of ugliness, distraction, and deterioration. They are just as much subject to reasonable controls, including prohibition, as enterprises which emit offensive noises, odors, or debris. The eye is entitled to as much recognition as the other senses, but, of course, the offense to the eye must be substantial and be deemed to have material effect on the community or district pattern. * * *' (p. 755.)

Oregon City v. Hartke, 240 Or. 35, 400 P.2d 255, decided in 1965, in holding that an ordinance wholly excluding automobile wrecking yards from Oregon City was a valid exercise of the police power, said:

'* * * there is a growing judicial recognition of the power of a city to impose zoning restrictions which can be justified solely upon the ground that they will tend to prevent or minimize discordant and unsightly surroundings. This change in attitude is a reflection of...