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

Moyer, C.J. 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 [318] 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; 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, 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, 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 * * *; 4c 4c “(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 pedestrianfs].” 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., [319] 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 [320] 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 contend that the inclusion of a provision in the ordinance that designates a period of time within which nonconforming signs must be altered or removed, which is referred to as an amortization provision, is unconstitutional and contrary to law. Effective July 16, 1979, Subsection 1329.15(b)(7) of the ordinance required that all signs “ * * * rendered nonconforming by the provisions of this chapter and permitted to continue shall be removed, altered or remodeled to conform to the provisions of this chapter no later than January 1, 1985.” Plaintiffs’ reliance on Akron v. Chapman, supra; Aristo-Craft, Inc. v. Evendale (App. 1974), 69 O.O. 2d 118, 322 N.E. 2d 309; and Gillette v. Washington, Twp. Zoning Comm. (Mar. 26, 1985), Montgomery App. No. 9039, unreported, is misplaced. In each of those cases, the cities sought to discontinue lawful, preexisting nonconforming uses within an amortization period. However, the cities neither demonstrated the existence of a danger to the public health, safety, morals or public welfare, nor made a legislative finding or declaration of nuisance sufficient to support the exercise of the police power. Rather, in the absence of such evidence or finding, they sought to use an amortization provision to eliminate lawful preexisting uses. Standing alone, such a provision is unconstitutional as it constitutes the taking of property without due process of law and is an unreasonable exercise of the police power. By contrast, when included as part of a valid exercise of municipal police power to abate a nuisance, an amortization clause becomes an element to consider in evaluating whether the ordinance is unreasonable or arbitrary. We find the amortization provision of the ordinance before us, allowing five and one-half years before mandatory compliance, is neither arbitrary nor unreasonable, particularly in view of the ordinance’s further provision for hardship variances.6 Given the presumption of constitutionality and upon the record before us, we find plaintiffs have failed to carry their burden of showing the ordinance is unconstitutional, unreasonable or arbitrary, and we find the ordinance to be a valid exercise of muni [321] cipal police power to protect the safety and general welfare of the public from a nuisance. The trial court did not err in finding the sign blight adversely impacts the aesthetics, value and vitality of Lakewood’s commerical areas and presents a hazard to vehicular and pedestrian traffic. We emphasize that retroactive zoning ordinances founded upon arbitrary, unsupported legislative declarations of nuisance, or comprised of arbitrary, discriminatory, capricious, or unreasonable terms, remain without real and substantial relation to legitimate governmental objectives. Ordinance No. 58-79 is not such an ordinance. Accordingly, we hold that the municipal police power under which Lakewood adopted Ordinance No. 58-79 includes the authority to regulate preexisting nonconforming signs that have become a public nuisance. The judgment of the court of appeals is affirmed. Judgment affirmed. Holmes, Douglas and H. Brown, JJ., concur. Mahoney, George and Wright, JJ., dissent. Mahoney, J., of the Ninth Appellate District, sitting for Sweeney, J. George, J., of the Ninth Appellate District, sitting for Locher, J. Footnotes [2] Section 4, Article VIII of the Ohio Constitution of 1802, stated: “Private property ought and shall ever be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the owner.” Section 19, Article I of the Ohio Constitution, retains this language, in pertinent part: “Private property shall ever be held inviolate, but subservient to the public welfare. * * * [W]here private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money s(s * * >> The United States Constitution provides for the exercise of state and local police power in derogation of the right to hold private property. The Fifth Amendment states, in pertinent part: “* * * [N]or shall any person * * * be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” The Fourteenth Amendment states, in pertinent part: “* * * [N]or shall any State deprive any person of life, liberty, or property, without due process of law * * *.” [3] R.C. 713.15 provided, at the time relevant herein, in pertinent part: “The lawful use of any dwelling, budding, or structure and of any land or premises, as existing and lawful at the time of enacting a zoning ordinance or amendment thereto, may be continued, although such use does not conform with the provisions of such ordinance or amendment, * * *. The legislative authority of a municipal corporation shall provide in any zoning ordinance for the completion, restoration, reconstruction, extension, or substitution of nonconforming uses upon such reasonable terms as are set forth in the zoning ordinance.” [4] R.C. 715.44 provides, in pertinent part: “A municipal corporation may: “(A) Abate any nuisance and prosecute in any court of competent jurisdic [320] tion, any person who creates, continues, contributes to, or suffers such nuisance to exist; <<* * * “(C) Prevent injury and annoyance from any nuisance; * * *.” [5] See footnote 2, supra. [6] Pursuant to Ordinance No. 58-79, Section 1329.16 of the Codified Ordinances of the city of Lakewood provides, in pertinent part: “A variance from the strict application of the provisions of this chapter may be granted by the Board of Building Standards in regard to an existing nonconforming sign * * * if the Board finds that requiring strict compliance with the provisions of this chapter may impose an undue hardship and that the granting of the variance from the provisions of this chapter will not depreciate or damage neighboring property, will not create a safety hazard and will not be contrary to the purposes of this chapter. * * *”