Sun Oil Co. of Pennsylvania v. City of Upper Arlington

• Decision Date: 20 December 1977
• Citation: 379 N.E.2d 266,9 O.O.3d 196,55 Ohio App.2d 27
• Parties: , 9 O.O.3d 196 SUN OIL COMPANY OF PENNSYLVANIA, Appellant, v. CITY OF UPPER ARLINGTON, Appellee.
• Court: Ohio Court of Appeals

Page 27

55 Ohio App.2d 27

379 N.E.2d 266, 9 O.O.3d 196

SUN OIL COMPANY OF PENNSYLVANIA, Appellant, v. CITY OF UPPER ARLINGTON, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

Dec. 20, 1977.

Syllabus by the Court

A municipal zoning ordinance, regulating display signs and outdoor advertising, which provides for the eventual removal of preexisting signs, constituting otherwise valid nonconforming uses, that have been depreciated for federal tax purposes, is in conflict with R.C. 713.15, a general law under Section 3, Article XVIII, Ohio Constitution.

Charles V. Schwenker and Bruce E. Reppert, Columbus, for appellant.

Robert J. Holland, City Atty., for appellee.

WHITESIDE, Judge.

Plaintiff appeals from a judgment of the Franklin County Court of Common Pleas and raises four assignments of error, as follows:

"1. The trial court erred in holding constitutional zoning for solely aesthetic purposes; the judgment is contrary to law.

"2. Judgment for the appellee was against the manifest weight of the evidence.

"3. The court's holding that vested non-conforming uses may be constitutionally prohibited is contrary to law.

"4. The judgment of the trial court sustaining the classifications established by the Upper Arlington sign ordinance is contrary to law." By this action, plaintiff seeks a declaration that Chapters 1145 and 1191 of the Upper Arlington City Code are unconstitutional as they affect plaintiff and an injunction against the enforcement thereof with respect to plaintiff's existing free-standing signs at service stations in Upper Arlington.

Defendant filed a counterclaim, seeking a declaration that Chapter 1145 of the Upper Arlington City Code is constitutional and an injunction requiring plaintiff to remove its signs which are in violation thereof.

The trial court found Chapter 1145 of the Upper Arlington City Code to be constitutional, denied plaintiff injunctive relief, and granted injunctive relief to defendant, requiring plaintiff to remove its free-standing signs found to be in violation of the Upper Arlington Zoning Code.

Plaintiff operates several service stations in the city of Upper Arlington, in connection with which there are on the service station premises free-standing signs identifying the product sold on the premises, all of which were properly and legally erected prior to the adoption of Chapter 1145 of the Upper Arlington Zoning Code.

Chapter 1145 of the Upper Arlington Zoning Code regulates display signs and outdoor advertising. Section 1145.05(4) requires all display signs to be mounted on the building housing the establishment advertised by the sign, except as otherwise provided in the ordinance. Section 1145.05(6) permits the erection and maintenance of free-standing signs upon the obtaining of a special permit from the Board of Zoning Adjustment in accordance with the provisions thereof. Plaintiff's signs apparently do not meet such standards. The ordinance in question was enacted subsequent to the erection and maintenance of the signs in question by plaintiff, and said ordinance, therefore, rendered the signs valid nonconforming uses under the Zoning Code.

Section 1145.04 of the Zoning Code provides that nothing in Chapter 1145 requires the removal or discontinuance of any legally existing permanent display sign attached to realty except as otherwise provided in the ordinance. Section 1145.05(5) of the Zoning Code provides in pertinent part that:

" * * * Such (free-standing) signs heretofore lawfully erected and maintained and now in place may be maintained Until January 1, 1976, or Until depreciated for Federal Income Tax purposes on the books of the owner, whichever is later, But not later, in any case, than April 7, 1981. * * *" (Emphasis added.)

By virtue of this provision, defendant contends that plaintiff is required to remove the signs in question, which have been amortized for income tax purposes.

The first two assignments of error relate to the basic constitutionality of the zoning ordinance regulating signs in the city of Upper Arlington. Plaintiff contends that the ordinance in question is an attempt to zone for aesthetic purposes. Defendant contends that aesthetic considerations are appropriate in enacting zoning regulations, such as the one here in question.

It has been the firmly established law of Ohio that the police power cannot be exercised for solely aesthetic purposes, as stated in the third paragraph of the syllabus of Wondrak v. Kelley (1935), 129 Ohio St. 268, 195 N.E. 65, as follows:

"Aesthetic reasons alone, unrelated to the requirements of the public health, safety or welfare, will not justify the exercise of the police power."

This principle was further explained in the opinion of Youngstown v. Kahn Bros. Building Co. (1925), 112 Ohio St. 654, at pages 661-662, 148 N.E. 842, at page 844, as follows:

"The police power, however, is based upon public necessity. There must be an essential public need for the exercise of the power in order to justify its use. This is the reason why mere aesthetic considerations cannot justify the use of the police power. * * * Successive city councils might never agree as to what the public needs from an aesthetic standpoint, and this fact makes the aesthetic standard entirely impractical as a standard for use restriction upon property. The world would be at continual seesaw if aesthetic considerations were permitted to govern the use of the police power. We are therefore remitted to the proposition that the police power is based upon public necessity, and that the public health, morals, or safety, and not merely aesthetic interest, must be in danger in order to justify its use."

Defendant refers to more recent cases, contending that they indicate aesthetic consideration may be the primary motivation for zoning legislation. Ghaster Properties, Inc., v. Preston (1964), 176 Ohio St. 425, 200 N.E.2d 328, cited for this proposition, related to the maintenance of billboards along interstate highways. A fair reading of that decision, however, indicates that aesthetic considerations were secondary, with the primary factor being the safety and convenience of motorists using the highway. In State v. Buckley (1968), 16 Ohio St.2d 128, 243 N.E.2d 66, the Ohio Supreme Court found statutes requiring junkyards to be obscured from the ordinary view of persons passing upon highways constitutional, although they are based upon aesthetic considerations. The explanation for this conclusion as set forth in the opinion by Justice Brown, at page 132, 243 N.E.2d at page 70, is as follows:

"We think that aesthetic considerations can support these statutes, because interference with the natural aesthetics of the surrounding countryside caused by an unfenced or inadequately fenced junk yard is generally patent and gross, and not merely a matter of taste. * * * "

Similarly, in P. & S Investment Co. v. Brown (1974), 40 Ohio App.2d 535, at page 543, 320 N.E.2d 675, at page 680, it is stated as follows:

"We hold that when the appearance of a use in violation of permitted uses in a particular zone is in such gross contrast to the permitted uses of such zone as to be patently offensive, the order of a township board of zoning appeals to prohibit such use is a valid exercise of the police power although such order is based upon aesthetic consideration."

Section 1145.05(6) of the Upper Arlington Zoning Code contains both aesthetic and nonaesthetic considerations for the granting of a permit to erect and maintain a free-standing sign. The ordinance contains height limitations, size limitations, set-back limitations, color limitations safety limitations, and number limitations, as well as aesthetic considerations. The ordinance requires that a free-standing sign be necessary to the conduct of the activity on the site, that an attached sign would not be in harmony with the building thereon, that the free-standing sign be in harmony with the buildings on the site, that such sign not detract from the appearance of the general neighborhood, and refers to compatibility of the sign with the surrounding neighborhood. In Buckley, supra, 16 Ohio St.2d at page 133, 243 N.E.2d at page 70, it is stated expressly that: "This holding is not to be construed as a blanket approval of all regulation based upon aesthetics." Broadly construed, the ordinance in question would be in conflict with Wondrak, supra. However, it is not necessary to so broadly construe the ordinance, and the aesthetic considerations set forth therein can, and are, construed to be limited to situations where the maintenance of a free-standing sign would be in such gross contrast to the surrounding area as to be patently offensive to the surrounding neighborhood, rather than merely a matter of taste. When so construed and limited, the ordinance in question is constitutional and constitutes a proper exercise of the police power. Accordingly, the first two assignments of error are not well taken.

By the fourth assignment of error, plaintiff contends that the classifications contained in the zoning ordinance with respect to signs are arbitrary and capricious. The ordinance distinguishes between free-standing signs and signs which are mounted on the building. The latter are permitted, but the former are permitted only by obtaining a permit from the Board of Zoning Adjustment. Although, with respect to the aesthetic considerations, there may be some question as to whether free-standing signs are any more offensive than signs on a building, from the totality of the ordinance, it appears to be at least reasonably debatable as to whether or not a permit should be required from the Board of Zoning Adjustment prior to the erection of a free-standing sign, but not with respect to signs mounted on a building. The set-back, height, and safety considerations are particularly appropriate to free-standing signs. A free-standing sign is more likely to constitute a...