“The Home Rule Amendment to the Ohio Constitution confers a significantly high degree of sovereignty upon municipalities. However, the amendment does not provide cities the absolute power of self-government.”
How later courts described this case
- “The Home Rule Amendment to the Ohio Constitution confers a significantly high degree of sovereignty upon municipalities. However, the amendment does not provide cities the absolute power of self-government.”
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
dissenting. The majority opinion concedes that the city of Toledo has concurrent authority to enforce advertising regulations within city limits. Proceeding from this premise it should be *59 noted that R.C. 5516.11 permits substitution within industrially and/or commercially zoned areas of a local zoning authority’s regulations controlling the “size, lighting, and spacing of outdoor advertising devices which are not inconsistent with the intent of this act [R.C. Chapter 5516] and which are a part of a bona fide commercial and industrial zoning plan,” in lieu of the controls encompassed by R.C. 5516.02(D), 5516.06 and 5516.09.
Pursuant to the foregoing concurrent authority to regulate, the city of Toledo has passed outdoor advertising regulations, i.e., Chapter 1377 et seq., Title 9, Toledo Municipal Code. Chapter 1393.14 states in pertinent part, that:
“The following signs are also prohibited which:
<< * * *
“(h) Violate[ ] any provision of any Federal or State of Ohio law relative to outdoor advertising; * * *”
This city ordinance clearly recognizes the authority of relevant state and federal laws regulating outdoor advertising signs.
R.C. 5516.10 provides that within municipalities applications for such a permit shall be made to the municipal authority designated by that municipality’s legislative authority. R.C. 5516.10 is clear in its grant of authority to the municipalities. The power to issue or to deny such permits, as are at issue in this case, rests with the municipality, except under R.C. 5516.02(A) and 5516.06.
It has been further decided in Art Neon Co. v. City and County of Denver (C.A. 10, 1973), 488 F. 2d 118 , that neither the Federal Highway Beautification Act nor appropriately enacted state regulatory statutes preempt municipal ordinances regulating outdoor advertising signs.
The agreement between the federal government and state authorities dated June 28, 1961, executed by the Ohio Director of Highways and the Federal Highway Administrator of the United States Department of Commerce, spells out this absence of preemption of municipal ordinances where it states in relevant part: “There shall be excluded from application of the said national standards any segments of the Interstate System which traverse commercial or industrial zones within the boundaries of incorporated municipalities, as such boundaries existed on September 21, 1959, wherein the use of real property adjacent to the Interstate System is subject to municipal regulation or control, or which traverse other areas where the land use, as of September 21, 1959, was clearly established by state law as industrial or commercial.” This agreement was authorized by the Federal Highway Beautification Act, Section 131(d), Title 23, U.S. Code. 2
*60 This valid agreement between the executive branches of the state and federal governments intends that all outdoor advertising signs in industrial or commercial zones within municipalities as of September 21, 1959, are excluded from state control and subject to the municipal legislative control.
Such interpretation and application of this agreement for carrying out national policy is consistent with the power granted to the state Director of Transportation to make such agreement under R.C. 5516.09, which explicitly authorizes the director to promulgate and enforce regulations consistent with outdoor advertising and national policy governing any aspect of the advertising devices. The fact that the federal government, through its authorized federal highway administrator, agreed with the Ohio Director of Highways to exclude the areas where the defendants’ signs are located from operation of the state law reinforces the conclusion that the defendants have a right to maintain the signs where they are now located subject only to the regulation by the zoning and sign authorities of the city of Toledo. This exception does not embrace the seven signs in the area that were outside the limits of the municipal corporation prior to September 21, 1959, but applies to the eight signs inside the corporate limits on that date.
The foregoing analysis particularly pertaining to the 1961 federal-state agreement is sufficient to support a decision that the eight signs within the corporate limits of Toledo on September 21, 1959, are lawfully there, requiring affirmance of the lower courts pertaining to such eight signs.
For the reasons that follow, the seven signs in the area that were outside the limits of the municipal corporation prior to September 21, 1959, are also lawfully there, and require affirmance of the lower courts pertaining to these seven signs. •
The State Highway Act, R.C. Chapter 5516, contains several of the following exceptions to the application of the Act.
R.C. 5516.10 provides, in part, that “[applications for such permits shall be made to the director or, within municipalities, to the municipal authority designated by its legislative authority * * *.”
R.C. 5516.06 generally provides that “[n]o advertising device shall be erected within six hundred sixty feet of the edge of the right-of-way of a highway on the primary system * *
R.C. 5516.06(F) makes an exception which allows “[advertising devices located in zoned or unzoned industrial or commercial areas adjacent to highways on the primary system” to be set back less than the otherwise required six hundred sixty feet.
R.C. 5516.02 provides generally that “[n]o advertising device shall be *61 erected or maintained within six hundred sixty feet of the edge of the right of way on the interstate system * * *.” However, an exception to this general proscription in R.C. 5516.02(D) exempts “[advertising devices which are located in commercial or industrial zones traversed by segments of the interstate system * * *.”
R.C. 5516.11 grants local controls for billboard advertising to the city of Toledo as follows:
“"Whenever a state, county, or local zoning authority has established regulations which control the size, lighting, and spacing of outdoor advertising devices which are not inconsistent with the intent of this act and which are a part of a bona fide commercial and industrial zoning plan, such regulations will be accepted in lieu of the controls provided in division (D) of section 5516.02 and in sections 5516.06 and 5516.09 of the Revised Code at * * tf
R.C. 5516.11 refers to the “intent” of the Highway Advertising Act. That intent and purpose is fulfilled by the Toledo Municipal Sign Code in Chapter 1377.01 as follows:
“The purpose of this Title Nine—Sign Code is to establish standards for the fabrication, erection and use of signs, symbols, markings and/or advertising devices within the City. These standards are designed to protect and promote the public welfare, health and safety of persons within the community and to aid in the development and promotion of business and industry by providing sign regulations which encourage aesthetic creativity, effectiveness and flexibility in the design and use of such devices without creating detriment to the general public.”
The Toledo Municipal Sign Code establishes detailed regulations regarding the size of signs, height, spacing and distance from highways permitted in various zoning districts. Toledo Municipal Code Chapters 1385, 1387 (particularly 1387.05), 1389 and 1391.
Moreover, the state of Ohio, which includes the plaintiff as part thereof, by issuing the original sign permits to the defendants through the Director of Transportation, and by renewal of several of such permits in later years, is estopped to assert sign violations now, and has waived that right. See Toledo v. Custer (1970), 24 Ohio St. 2d 152 [ 53 O.O.2d 351 ]; O.O.2d Liquid Disposal, Inc. v. Dawe (1975), 46 Ohio App. 2d 197 [ 75 O.O.2d 344 ]; O.O.2d v. Cleveland Electric Illuminating (N.D. Ohio 1977), 440 F. Supp. 193 ; Yoshida v. Liberty Mut. Ins. Co. (C.A. 9, 1957), 240 F. 2d 824, 829 .
Finally, it must be noted that the Ohio General Assembly specifically granted municipalities the authority to regulate outdoor billboards in R.C. 715.27(A). See fn. 1.
For all of the above reasons, I dissent. Both lower courts made a correct analysis, reached a just result, and therefore should be affirmed.
Locher, J., concurs in the foregoing dissenting opinion.
Section 131(d), Title 23, U.S. Code, provides:
“In order to promote the reasonable, orderly and effective display of outdoor advertising * * * signs, displays, and devices whose size, lighting and spacing, consistent with customary *60 use is to be determined by agreement between the several States and the Secretary, may be erected and maintained within six hundred and sixty feet of the nearest edge of the right-of-way * * * as may be determined by agreement between the several States and the Secretary.