Liberty Savings Bank v. Kettering

I respectfully dissent from the decision of the majority overruling the first assignment of error.

Section 1171.12(B)(2)(b) of the Kettering Zoning Ordinances permits individual tenants in single-occupancy buildings that are located in a commercial center which has been designated a Planned Unit Commercial Development to use (1) a wall or canopy-mounted sign no larger than one hundred square feet or (2), at the option of the tenant, two wall-mounted signs each of which is no larger than seventy-five square feet to identify or advertise the tenant's business. The trial court erred in construing the ordinance to permit Liberty Savings Bank, a tenant, to install a ground-mounted sign, which according to Section 1171.12(B)(2)(a) is limited in the case of Planned Unit Commercial Developments to signs identifying the commercial center itself, one sign for each side of the development adjoining a public street.

Some of the difficulty presented in the application of this ordinance arises from the way in which businesses subject to the regulation are identified. Section 1171.12(B)(2)(b)(1) describes the business signs permitted for "individual tenants or storefronts." The argument is made that the terms identify but one class of individual tenants, those whose businesses are in strip storefront locations, because the terms are used in the alternative. However, the terms are not mutually exclusive, and the more specific of the two is not exhaustive of the more general. Some individual tenants may be in storefront locations while other individual tenants may be in other locations. Some, such as Liberty Savings Bank, are in freestanding, single-occupancy buildings. They are individual tenants, nevertheless, and the signage limitations in subparagraph (1) apply to them as well as to those in strip storefronts. Subparagraph (2) then gives those in single-occupancy buildings the option to apportion the signage they are permitted in (1) to the different form of signage provided in subparagraph (2), which is therefore subsidiary to and dependent on subparagraph (1). Even if it is not so viewed, there is nothing in subparagraph (2) which permits any individual tenant to have a ground-mounted sign.

The trial court apparently viewed the prohibition against pole-mounted signs on single-occupancy buildings in the second sentence of Section 1171.12(B)(2)(b)(2) to permit ground-mounted signs, reasoning that failure to make a similar prohibition of them permits their use. The court's reasoning follows the rule that an express exception in a statute amounts to an affirmation of its application to all other cases not so excepted. However, the prohibition against pole-mounted signs in subparagraph (2) is not an exception of any kind. It is consistent with the other provisions of Sections 1171.12(B)(2)(b)(1) and (2), which limit signs on single-occupancy buildings to wall-mounted or canopy signs. It is, at most, mere surplusage. It probably reflects some zoning conflict long past, but it cannot be read to permit the use of a ground-mounted sign.

The review of the decision of the Kettering City Council performed by the court of common pleas was limited to errors of law made by the council. The authority of this court is coterminous with that of the court of common pleas in respect to that form of review. Rotellini v. W. Carrollton Bd. of ZoningAppeals (1989), 64 Ohio App.3d 17, 580 N.E.2d 500. Therefore, a reversal by this court on the foregoing basis would not invade the discretion reserved to the court of common pleas.

I would reverse and reinstate the order of the Kettering City Council.