COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60566 THE STANDARD OIL COMPANY : : : APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION CITY OF MAYFIELD HEIGHTS : : : APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: APRIL 30, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. 161348. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant: Michael T. Gavin, Eli Manos, Anthony J. Coyne, Mansour, Gavin, Gerlack & Manos Co., 2150 Illuminating Building, 55 Public Square, Cleveland, Ohio, 44113-1994. For Appellee: Vincent A. Feudo, William F. Schmitz, Kitchen, Messner & Deery, 1100 Illuminating Building, 55 Public Square, Cleveland, Ohio, 44113. - 2 - SWEENEY, JAMES D., J.: Plaintiff-appellant Standard Oil Company of Ohio, nka BP America, Inc. ("SOHIO") appeals from an adverse administrative 1 zoning appeal ruling by the Court of Common Pleas. See R.C. 2506, et seq. For the reasons adduced below, we affirm. A review of the record reveals that SOHIO owns a commercially zoned parcel of property of approximately 1.77 acres located at the southeast corner of the intersection of Mayfield Road (U.S. Route 322) and S.O.M. Center Road (Ohio Route 91) in 2 the City of Mayfield Heights, Ohio ("City"). The available frontage on each of these two routes is approximately 280 feet. On that parcel, SOHIO operates (1) a modern, fully canopied, ten pump gasoline station with an attached kiosk in the center of the pump area selling convenience-type items and (2) a Pro Care automotive repair garage with six work bays. The kiosk is a 12 x 40 foot structure with the forty-foot side facing S.O.M. Center Road and the twelve-foot side facing Mayfield Road. The pumps surrounding the kiosk run parallel to S.O.M. Center Road. The garage is a 40 x 110 foot structure with the one-hundred ten foot side facing S.O.M. Center Road and the forty-foot side facing Mayfield Road. The garage is situated to the east of the kiosk 1 BP America, Inc. is the successor in interest to SOHIO. 2 The area in question is designated a "U-4" zoning district by the City, which entails local retail and wholesale activities. Appellee brief, at 2. - 3 - with the work bays facing S.O.M. Center Road. See Plaintiff's Ex. 4. On the southwest corner of the intersection is a Shell Oil filling station. On the northwest corner of the intersection, Gulf Oil operates a filling station and auto repair facility. Strip shopping occupies the northeast corner. At some point, SOHIO applied to the building department of the City seeking a permit for the erection of various signs and illumination on the property and its structures which were recently rebuilt. A request for a freestanding wall sign bearing the company logo only was permitted on Mayfield Road. The remaining requests, their applicable Board of Zoning Appeal ("BZA") numbers, and actions by the City with respect to these remaining variances was stated succinctly by the City as follows: 1. Free-standing wall sign on SOM Center Road. Appeal 494. 2. The word "SOHIO" on gas pump columns. Appeal 502. 3. A 17 foot "PROCARE" sign on the SOM side of the Procare building. Appeal 503. 4. Line illumination of the canopy. Appeal 505. 5. Price advertising on the free- standing wall signs. Appeal 494. The Board of Zoning Appeals (hereinafter BZA) denied all the appeals with the exception of Appeal 502, which was granted. Pursuant to ordinance, the appellant appealed the denials to City Council, and - 4 - Appeal 502 was presented for confirmation. The Council affirmed the denials and reversed the issuance of a variance as regards Appeal 502. (Appellee brief, at 1.) The sections of the City's Planning and Zoning Code ("Code") which are relevant to the denial of the requested variances are the following: 1155.05 VARIANCES. (a) Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this Zoning Code, and such difficulties and hardships are inherent in the land sought to be built upon because of physical size, shape, topography or other characteristics which are peculiar to the premises in question and not shared in general by other land or buildings in the immediate vicinity, the Board of Zoning Appeals may modify the application of such provisions and grant a variance, provided that it gives reasons and findings of fact for its decision. Where any lot or parcel of land cannot be appropriately improved without modification of the front, side or rear yard or area requirements established by this Zoning Code, the Board may, after public notice and hearing and subject to such conditions and safeguards as it may prescribe to protect the appropriate development of neighboring property, modify such requirements. (b) In approving a variance, the Board may designate such conditions in connection therewith as will protect, as far as is reasonable, the attractiveness and value of adjoining property or health and safety of the owners or occupants thereof. (c) Any person believing that his or her property qualifies for a variance from the regulations of this Zoning Code for the district in which such property is located may apply to the Board for a variance. The - 5 - application shall comply with the requirements of the building permits for which application is made and shall be filed with the Board. (Ord. 1985-29. Passed 10- 14-85.) 1191.01 DEFINITIONS. * * * (b) "Sign" means a publicly displayed notice, message or design, including, but not limited to, an illuminated facia on a building, structure or premises, including any portion of the exterior surface of a structure, or visibly readable through any transparent portion of a building, to advertise and/or identify any business or service, whether or not it is transacted in or on such building, structure or premises, or the name of the person or firm conducting the business, or goods sold or services rendered in or on such building, structure or premises, or a political sign. The use of characters, logos, trademarks, insignias, emblems, devices or other symbols may be included within the permitted sign face area of any permanent sign provided that they do not constitute more than fifty percent (50%) of the permitted sign face area or 15 sq. feet maximum. The use of price advertising is prohibited. Line illumination of buildings, portions of buildings, fascia or other outline lighting is prohibited. * * * and, 1191.06 LOCATION, HEIGHT AND PROJECTION; STYLE AND COLOR; FREE- STANDING WALLS. (a) A sign shall be located on a building wall adjacent to a parking area, if there is a direct customer entrance between such street and/or parking area and such building. Any sign permitted at a secondary - 6 - public entrance to a building shall be limited to six square feet in area. A sign shall not extend higher than the top of the parapet wall of a building or project more than thirty-six inches in front of the established building line. Signs may be permitted on a canopy or awning only in such instances where a wall sign is not practical or possible, and then only with the approval of the Planning Commission. Where two or more adjacent stores on the same parcel have a similar or continuous marquee, canopy, mansard, permanent awning or building face, all signs shall be substantially similar in design and color. All signs shall be limited to two colors, excluding any one background color. For purposes of this section, white shall be considered a color. (Ord. 1987-45. Passed 12-14-87.) (b) In addition to any other type of permitted sign, one free-standing wall per parcel, having a height of not more than five feet and a width of not more than twelve feet, may be erected, with the total sign area not to exceed thirty square feet on each face, provided that planting is placed around such free-standing wall. Such wall shall be constructed of either burnt clay brick, stone or precast panels, any one of which must be approved by the permit-issuing authorities. Such wall shall be located in front of the set-back building line, shall be perpendicular to the public street and shall be at least five feet in back of the dedicated portion of the public street. (Ord. 1987-10. Passed 4-13-87.) (c) In U-4 and U-4-A zoned districts, parcels having more than 400 feet frontage and containing more than four separate business or mercantile occupancies may be permitted to construct one free-standing wall. Such wall shall not be permitted in conjunction with any other wall or nonconforming pole or other sign on the premises. Such wall shall be constructed of - 7 - either burnt clay brick, stone or precast panels, any one of which must be approved by the permit-issuing authorities. Walls shall not exceed five feet (5') in height and twenty feet (20') in width. All signs shall be mounted on the wall face and shall not exceed forty-eight (48) square feet per face. All walls shall be located in front of the setback building line, shall be perpendicular to the public street and shall be at least five feet (5') in back of the dedicated portion of the public street. (Ord. 1988-3. Passed 3-14-88.) (d) In U-4 and U-4-A Districts, lots having detached annex buildings or any free- standing business or mercantile building located in the rear or behind buildings fronting on the main street and located on the same parcel shall be permitted one identification or directional sign. Such sign shall be mounted on a structure of material as outlined for free-standing walls in subsection (c) hereof. Signs shall conform to all other provisions of this chapter and must be approved by the Planning Commission. The total area of signs permitted on such structure shall not exceed eight square feet. (Ord. 1988-3. Passed 3-14-88.) The reasons given by the City for the denial of the requested variances are as follows: 1. Re Appeal 494 -- an additional free-standing wall sign, with price advertising, on S.O.M. Center Road -- variance denied because: (1) the code allows only one free-standing wall sign per parcel and price advertising is prohibited; (2) there are no hardships inherent in the land, which are peculiar to the premises in question and not shared in general by other land or buildings in the immediate vicinity. See Code Sections 1155.05(a), 1191.01(b), 1191.06(b). - 8 - 2. Re Appeal 502 -- to install the word "SOHIO" on both sides of the columns over the gasoline pumps -- variance denied because signs are only permitted on a building wall. See Code Section 1191.06(a). 3. Re Appeal 503 -- to install a secondary "PROCARE" sign on the west side of the PROCARE structure, seventeen square feet in size -- variance denied because: (1) any sign permitted at a secondary public entrance to a building shall be limited to six square feet in size; (2) SOHIO did not demonstrate any practical difficulties or unnecessary hardships inherent in the land, which are peculiar to the premises in question and not shared in general by other land or buildings in the immediate vicinity. See Code Sections 1155.05(a), 1191.06(a). 4. Re Appeal 505 -- to install red neon strips the length of both sides of the canopy facing the two major routes -- variance denied because (1) line illumination is prohibited; (2) SOHIO failed to demonstrate a hardship. See Code Sections 1155.05(a), 1191.01(b). On December 7, 1988, SOHIO filed its timely appeal from the City's decisions in Common Pleas Court pursuant to R.C. 2506, et seq. The case was ultimately called for trial on October 4, 1989. At that time, the matter was submitted on the briefs of the parties. The court, applying a "practical difficulties" standard rather than an "unnecessary hardships" standard, affirmed the City's denial of the requested variances in a seven page judgment entry journalized on September 7, 1990. See Code Section - 9 - 1155.05(a); and Journal Vol. 1292, pg. 490-496 (a copy of which is attached to appellant's brief, at appendix, page A-1). SOHIO filed a timely notice of appeal with this court on October 1, 1990. Eleven assignments of error are presented for review. These assignments challenge both the court's review of the denial of the requested variances and the overall constitutionality of the City's zoning ordinances as applied to the property in question via declaratory judgment. SCOPE OF REVIEW In an administrative review, the reviewing court's inquiry is "limited to determining whether the ordinance has any reasonable relationship to the legitimate exercise of police power by the municipality. This determination is made by analyzing the particular use in question as it relates to the property governed by the ordinance." Sudan, Inc. v. Chagrin Falls (Cuyahoga, 1989), 63 Ohio App. 3d 83, 89, citing Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23, 28-29; Flair Corp. v. Brecksville (1976), 49 Ohio App. 2d 77, 83. "If the court finds the restriction of the proposed use valid, its inquiry ends." Karches v. Cincinnati (1988), 38 Ohio St. 3d 12, 16. This court is bound to uphold the decision of the trial court if that decision is supported by a preponderance of reliable, probative and substantial evidence. R.C. 2506.04; - 10 - Kisil v. Sandusky (1984), 12 Ohio St. 3d 30, 34. See also C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St. 2d 279; Seasons Coal. Co. v. Cleveland (1984), 10 Ohio St. 3d 77. In reviewing a challenge to a zoning ordinance on constitutional grounds, * * * . . . appellants must demonstrate, beyond fair debate, that the zoning classification is unreasonable and not necessary to the health, safety and welfare of the municipality. Mayfield-Dorsh, Inc. v. South Euclid (1981), 68 Ohio St. 2d 156, 22 O.O. 3d 388, 429 N.E. 2d 159. See, also, Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 395; Goldblatt v. Hempstead (1962), 369 U.S. 590. Appellants must demonstrate that the ordinance denies to them the economically viable use of their land without substantially advancing a legitimate government interest. Superior Uptown, supra; Agins, supra; Penn Central Transp. Co. v. New York City (1978), 438 U.S. 104. See, also, Ruckelshaus v. Monsanto Co. (1984), 467 U.S. 986. (Footnote omitted.) Karches v. Cincinnati, supra, at 19. See also Rotellini v. West Carrollton Bd. of Zon. App. (1989), 64 Ohio App. 3d 17, 20; Mayfield Hts. v. Cardarelli (Cuyahoga, 1989), 63 Ohio App. 3d 812, 815-816. Here again, the decision of the trial court is to be given great deference when judged under the manifest weight of the evidence. Karches v. Cincinnati, supra, at 19. Also, the burden of proving an ordinance's invalidity rests with the party contesting the determination and properly enacted zoning ordinances are presumed valid. Brown v. Cleveland (1981), 66 - 11 - Ohio St. 2d 93, 95; C. Miller Chevrolet v. Willoughby Hills (1974), 38 Ohio St. 2d 298. Further, in determining the constitutionality of an ordinance, a court may not substitute its judgment for that of a municipality as to the expediency, necessity for, or wisdom of the legislation. Benjamin v. Columbus (1957), 104 Ohio App. 293. I THE COURT ERRED IN AFFIRMING THE DECISION OF THE MAYFIELD HEIGHTS CITY COUNCIL IN DENYING APPELLANT STANDARD OIL COMPANY'S REQUEST FOR A VARIANCE TO INSTALL A FREE STANDING WALL SIGN ON SOM CENTER ROAD BECAUSE SUCH AN ADMINISTRATIVE DECISION IS, CONTRARY TO LAW, UNREASONABLE AND UNSUPPORTED BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE. In this assignment of error, appellant argues that the zoning code of the City: (1) allowed the PROCARE facility and the service station to have their own free-standing monument signs; (2) if it does not permit two monument signs, the code's prohibition of a pole sign creates practical difficulties in identifying the PROCARE facility to the motoring public. Appellant's brief at 11. The application for an additional freestanding wall sign with price advertising was the subject of BZA No. 494. SOHIO sought this variance from the application of code sections 1191.06(b) and 1191.01(b). See SOHIO's Notice of Appeal to the BZA dated July 22, 1988. SOHIO cannot now argue on appeal that a second freestanding wall sign is permitted under code section - 12 - 1191.06(d) where this argument was not before the BZA on their appeal to that body. The Supreme Court defined the term "practical difficulties" in Duncan v. Middlefield (1986), 23 Ohio St. 3d 83, syllabus: The factors to be considered and weighed in determining whether a property owner seeking an area variance has encountered practical difficulties in the use of his property include, but are not limited to: (1) whether the property in question will yield a reasonable return or whether there can be any beneficial use of the property without the variance; (2) whether the variance is substantial; (3) whether the essential character of the neighborhood would be substantially altered or whether adjoining properties would suffer a substantial detriment as a result of the variance; (4) whether the variance would adversely affect the delivery of governmental services (e.g., water, sewer, garbage); (5) whether the property owner purchased the property with knowledge of the zoning restriction; (6) whether the property owner's predicament feasibly can be obviated through some method other than a variance; (7) whether the spirit and intent behind the zoning requirement would be observed and substantial justice done by granting the variance. Applying the record to the factors in Duncan, we conclude that SOHIO did not meet the practical difficulties test by a preponderance of the evidence. Factor one must be viewed as inuring to the City's benefit. There has been no evidence that, without the variance, SOHIO will be deprived of the beneficial use of the property. The second factor is met by the city only to the extent that it requests a second freestanding sign where - 13 - only one such sign is presently permitted. The third factor inures to the benefit of SOHIO since it cannot be said that the variance, if allowed, would substantially alter the essential character of the neighborhood, and there was no evidence that adjoining properties would suffer a substantial detriment if the variance was allowed. The fourth element also inures to the benefit of SOHIO because there was no evidence that the delivery of government services would suffer if the variance were allowed. The fifth element inures to the benefit of the City since SOHIO recently rebuilt the station and added the PROCARE facility shortly before requesting the variance. The sixth element inures to the benefit of the City since it has not been shown that a predicament caused by a lack of signs exists. The seventh element also inures to the benefit of the City because the code operates to limit signage for the purpose of limiting confusion and obtrusive visual clutter. Disallowing the sign reduces visual clutter. Substantial justice would not be achieved by granting the variance because gasoline stations in the City all operate under the same signage requirements. Having failed to meet the practical difficulties test, and being otherwise ineligible for two signs under the code, as sought before the BZA, we find that the trial court did not abuse its discretion in finding for the City. Assignment overruled. II - 14 - THE COURT ERRED IN AFFIRMING THE COUNCIL'S DECISION TO OVERRULE THE BOARD OF ZONING APPEALS GRANTING A VARIANCE PERMITTING THE WORD "SOHIO" TO APPEAR ON EACH SIDE OF THE TEN PUMP COLUMNS SINCE SUCH DECISION IS UNSUPPORTED BY A PREPONDERANCE OF THE EVIDENCE. In BZA No. 502, which is the subject of this assignment, SOHIO requested a "variance to allow the name 'SOHIO' to appear on monocolumn spreaders on both sides. Each name and underline is 1.2 sq. ft." The reason given for the variance was that since the trade name "SOHIO" was not allowed on the canopy, the trade name on monocolumn spreaders would aid in identification of the gasoline brand. See Notice of Appeal to BZA in No. 502, dated September 19, 1988. Pursuant to code section 1191.02(a), only building wall signs and freestanding wall signs are permitted. Appellant's expert, Mr. Hill, testified at deposition that he did not consider the monocolumn spreader to be a wall, but was an integral part of the dispensing pumps. See Hill deposition, at 24. The type of sign requested by SOHIO on the spreader is also clearly prohibited under code section 1171.01(i)(10), which limits signs on gasoline dispensing pumps and canopy supports at filling stations to the identification of the type of gasoline or diesel fuel available. Given these facts, the fact that the trade name is exhibited on several other signs at the station which are in full view to the public, and the fact that the station is painted in BP America green which is identifiable - 15 - solely to that major oil company, we find that the intent and purpose of the ordinance was served and the court did not abuse its discretion in finding for the City by a preponderance of the evidence. Assignment overruled. III THE COURT ERRED IN AFFIRMING THE DECISION OF THE BOARD OF ZONING APPEALS AND COUNCIL IN DENYING THE REQUEST FOR A 17 FOOT "PROCARE" WALL SIGN ON THE SOM CENTER FACE OF THE PROCARE BUILDING PURSUANT TO ORDINANCE SECTION 1191.06(a) BECAUSE IT IS CONTRARY TO LAW AND UNSUPPORTED BY A PREPONDERANCE OF THE EVIDENCE AS THERE IS NO INDICATION THAT THE SIGN WOULD DETRIMENTALLY EFFECT ADJOINING PROPERTY OWNERS. Code section 1191.06(a) clearly provides that "[A]ny sign permitted at a secondary public entrance to a building shall be limited to six square feet in size." SOHIO, which had a seventeen square foot "PROCARE" sign on the main entrance to the garage which faced Mayfield Road, wished to place a similar sized sign on the garage facing S.O.M. Center Road. SOHIO argues that this six square foot restriction by the city is unreasonable given the fact that the side of the garage facing S.O.M. Center Road is located over two-hundred feet from that road. The record is devoid of any evidence which would support a finding of "practical difficulties." Accordingly, the court did not abuse its discretion in finding for the City as a preponderance of the evidence. Assignment overruled. - 16 - IV THE COURT ERRED IN AFFIRMING THE DECISION OF THE BOARD OF ZONING APPEALS AND COUNCIL IN DENYING THE REQUEST FOR A VARIANCE FOR LINE ILLUMINATION OF THE CANOPY BECAUSE SAID DECISION MISAPPLIED SIGN ORDINANCE SECTION 1191.01 IS CONTRARY TO LAW, ARBITRARY, CAPRICIOUS, AND NOT SUPPORTED BY CREDIBLE EVIDENCE. The requested variance to permit line illumination on the canopy was the subject of BZA No. 505. SOHIO sought the variance from the application of code section 1191.01(b), which clearly prohibits line illumination, because the neon strip would "aid in identification since 'SOHIO' on canopy is not allowed" and "other establishments allowed same." See BZA Notice of Appeal No. 505, dated September 27, 1988. By virtue of aiding identification of the station, the neon strip on the canopy performs the functions of a sign for the traveling public and comes within the definition of that term under the zoning code, the opinion of the appellant's expert notwithstanding. SOHIO has failed to make a showing of practical difficulties under a preponderance of the evidence. Therefore, the trial court did not abuse its discretion in finding for the City. Assignment overruled. V THE COURT ERRED IN AFFIRMING THE DECISION OF THE BOARD OF ZONING APPEALS AND COUNCIL DENYING THE REQUEST FOR PRICE ADVERTISING ON THE FREE STANDING WALL SIGNS WAS CONTRARY TO - 17 - LAW AND UNSUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE. Price advertising on freestanding wall signs is clearly prohibited by code section 1191.01(b). SOHIO sought the variance because the new kiosk had a smaller amount of window area than the old station, thus SOHIO no longer had "enough window area to display price from building without obstructing visibility." See BZA Notice of appeal No. 494, dated July 22, 1988. SOHIO is free to have price advertising in the kiosk windows, but it must conform to the 20% of window area limitation found in code section 1191.05. SOHIO had knowledge of these limitations when it chose to design and rebuild the station in 1988. We find no abuse of discretion in the court's determination that a showing of practical difficulties was not met by a preponderance of the evidence. Assignment overruled. VI THE COURT ERRED IN AFFIRMING THE BOARD OF ZONING APPEALS AND COUNCIL'S DETERMINATION OF THE AGGREGATE AREA AVAILABLE FOR SIGNS SINCE SAID DECISION WAS ARBITRARY AND CAPRICIOUS AND UNSUPPORTED BY THE PREPONDERANCE OF THE EVIDENCE. In this assignment, SOHIO argues that the City used the wrong road with which to determine the frontage of the property for purposes of calculating the total allowable square footage of signage available to SOHIO. See code section 1191.04. SOHIO alleges that S.O.M. Center Road should be considered the - 18 - principal thoroughfare. See code section 1191.04(b). The City claims that Mayfield Road is the principal thoroughfare. The evidence in the record shows that Mayfield Road, in 1986, had a traffic volume of 26,000 vehicles per day while S.O.M. Center Road had a traffic volume of 15,000 vehicles per day. Also, the address listed in the local telephone book for the filling station and the PROCARE garage was 6680 Mayfield Road. Report of City expert, Wendell Phillips, attached to appellee's brief, at Ex. H. Finally, the BZA appeal which dealt with the issue of maximum sign area, BZA Notice of Appeal No. 494, gave the location of the property as "Mayfield & SOM (6688 Mayfield)." We find no abuse of discretion by the trial court in determining that the principal thoroughfare in this case was Mayfield Road based on a preponderance of the evidence. Assignment overruled. The remaining five assignments address the constitutionality of the zoning ordinances as applied to the denial of the variance requests herein. These assignments will be addressed jointly. VII THE COURT ERRED IN AFFIRMING THE DECISION OF THE BOARD OF ZONING APPEALS AND COUNCIL DENYING STANDARD OIL'S REQUEST FOR A VARIANCE PERMITTING A FREE STANDING WALL SIGN ON SOM CENTER ROAD BECAUSE SAID DECISION IS UNCONSTITUTIONAL. VIII THE COURT ERRED IN AFFIRMING THE COUNCIL'S DECISION TO OVERRULE THE BOARD OF ZONING APPEALS' GRANTING A VARIANCE SO AS TO PERMIT - 19 - THE WORD "SOHIO" TO APPEAR ON EACH SIDE OF THE TEN PUMP COLUMNS BECAUSE SAID DECISION IS UNCONSTITUTIONAL. IX THE COURT ERRED IN AFFIRMING THE BOARD OF ZONING APPEALS AND COUNCIL'S DENIAL OF THE REQUEST FOR A 17 FOOT "PROCARE" SIGN ON THE SOM CENTER ROAD FACE OF THE PROCARE BUILDING BECAUSE SAID DECISION IS UNCONSTITUTIONAL. X THE COURT ERRED IN AFFIRMING THE BOARD OF ZONING APPEALS AND COUNCIL'S DENIAL OF THE REQUEST FOR A VARIANCE FOR NEON LINE ILLUMINATION OF THE CANOPY BECAUSE SAID DECISION IS UNCONSTITUTIONAL. XI THE COURT ERRED IN AFFIRMING THE BOARD OF ZONING APPEALS AND COUNCIL'S DENIAL OF THE REQUEST FOR PRICE ADVERTISING ON THE FREE STANDING SIGNS BECAUSE SAID DECISION IS UNCONSTITUTIONAL. The clear and plain intent of the zoning code in question is to promote the legitimate governmental interest of avoiding signage clutter and obscuring the vision of the public, thereby maintaining the aesthetics of the community. See Hudson v. Albrecht (1984), 9 Ohio St. 3d 69 (government has a legitimate interest in maintaining aesthetics of a community and in protecting real estate values from impairment.) Regulating, rather than prohibiting, the signage and illumination sought by SOHIO in this case furthers the legitimate governmental interest previously mentioned. We find no abuse of discretion by the - 20 - trial court in finding the ordinances to be constitutional in content and application. Assignments overruled. Judgment affirmed. - 21 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. ANN DYKE, P.J., and THOMAS PARRINO, J.*, CONCUR. JAMES D. SWEENEY JUDGE *(SITTING BY ASSIGNMENT: THOMAS PARRINO, RETIRED JUDGE OF THE COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT.) N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .