Kinzel v. Ebner , 2023 Ohio 164 ( 2023 )

[Cite as Kinzel v. Ebner, 2023-Ohio-164.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
Judith A. Kinzel, Trustee, et al. Court of Appeals No. E-21-036
Appellees Trial Court No. 2017 CV 0554
v.
Douglass Ebner, aka Douglas
Ebner, et al.
Appellants
v.
Richard L. Kinzel, et al. DECISION AND JUDGMENT
Appellees Decided: January 20, 2023
*****
Michael Braunstein and Matthew L. Strayer, for Appellee,
Judith A. Kinzel, Trustee.
Charles A. Bowers, Stephen M. O’Bryan, and Mark E. Staib,
for Appellants.
Matthew L. Strayer, for Appellee, Richard L. Kinzel.
Frank H. Scialdone, for Appellee, City of Sandusky.
Robert J. Tucker, for Amicus Curiae, Ohio Realtors.
Christopher A. Holecek and Christina Sandefur, for Amicus
Curiae, Goldwater Institute.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellants, Douglass Ebner, 2253 Cedar Point LLC, and 2243 Cedar Point
LLC (collectively “Ebner”), appeal the judgment of the Erie County Court of Common
Pleas, which granted summary judgment in favor of appellee, the city of Sandusky (“the
City”), on Ebner’s counterclaims that Sandusky Ordinance Nos. 12-107 and 17-088 were
invalidly enacted and were unconstitutional. For the reasons that follow, we affirm, in
part, and reverse, in part.
I. Facts and Procedural Background
{¶ 2} The underlying facts of this appeal are straightforward; the litigation history
less so. This is the second time this case has been on appeal. In Kinzel v. Ebner, 2020-
Ohio-4165, 157 N.E.3d 898 (6th Dist.), we set forth the facts and most of the arguments
raised by the parties as follows.
{¶ 3} Ebner is the owner of single-family homes located on Lot 12 and Lot 13 of
the Laguna Subdivision.1 The homes are beachfront property, situated along the shore of
Lake Erie, and are located on the Cedar Point Chaussee, which is a narrow strip of land
that connects the Cedar Point Amusement Park peninsula to the city of Sandusky. Ebner
acquired his properties in 2013 and 2015. He and his family reside in the home on Lot
12, but he offers it for short-term vacation rentals when he is out of town. Ebner uses Lot
1
Appellant is the sole member of 2253 Cedar Point LLC, which owns Lot 12, and 2243
Cedar Point LLC, which owns Lot 13.
2.
13 almost exclusively for short-term vacation rentals. Lots 12 and 13 are located next to
the amusement park.
{¶ 4} The litigation was initiated on October 31, 2017, when Ebner’s neighbor,
Judith Kinzel, filed a complaint against Ebner seeking injunctive relief and damages.2
Kinzel alleged that Ebner’s use of the properties for short-term rentals was in violation of
deed restrictions as well as Sandusky Municipal Ordinance Nos. 12-107 and 17-088.
Notably, two months earlier, the City had filed criminal charges against Ebner in
Sandusky Municipal Court for violating Sandusky Municipal Code 1341.32, which
prohibits transient rentals of property.
{¶ 5} Ebner filed a counterclaim against Kinzel, Kinzel’s husband, and the City.
Relevant here, Ebner’s counterclaim against the City sought a declaration that Ordinance
Nos. 12-107 and 17-088 were not validly enacted and were unconstitutional.3 Further,
Ebner claimed that the City’s criminal enforcement action against him violated Equal
Protection.
2
Kinzel brought the action as Judith Kinzel, Trustee under the Judith A. Kinzel Trust
Agreement (dated August 13, 1989, amended on June 25, 1997, amended on January 5,
1999, restated on January 17, 2002 and amended and restated on September 1, 2006 and
amended on the 23rd day of October 2015). The Kinzel Trust owns the property adjacent
to Ebner’s.
3
Although the City’s enforcement action against Ebner is under the municipal code as
enacted by Ordinance No. 17-088, Ebner contests the validity of Ordinance No. 12-107,
because if that ordinance were rendered invalid, then Ebner’s short-term rentals of his
property would be permitted as a prior non-conforming use under Ordinance No. 17-088.
3.
{¶ 6} On April 22, 2019, the trial court entered its judgment on the parties’ various
competing motions for summary judgment. The trial court awarded partial summary
judgment in favor of Kinzel on her ordinance violation claim, finding that judgment as to
liability was appropriate, but reserving for the jury the issue of causation and damages.
The trial court also awarded summary judgment to the City on nearly all of Ebner’s
counterclaims, finding that because the validity and constitutionality of Ordinance Nos.
12-107 and 17-088 were at issue in the criminal case against Ebner, and because the
jurisdiction of the Sandusky Municipal Court was invoked first, the jurisdictional priority
rule deprived the trial court of jurisdiction to rule on Ebner’s claims. Alternatively, the
trial court ruled that the City was entitled to summary judgment because the statutes were
valid and constitutional. The court did find, however, that a question of fact remained as
to Ebner’s equal protection claim, and thus denied the City’s motion for summary
judgment on that claim.
{¶ 7} Ebner and Kinzel appealed and cross-appealed, respectively, the trial court’s
April 22, 2019 judgment. In Kinzel v. Ebner, this court affirmed the trial court’s
judgment, in part, and reversed, in part. Kinzel v. Ebner, 2020-Ohio-4165, 157 N.E.3d
898, at ¶ 2. This court affirmed the judgment as it pertained to the claims between Kinzel
and Ebner. As to the claims between Ebner and the City, this court reversed the trial
court’s judgment that the jurisdictional priority rule deprived the court of jurisdiction to
consider Ebner’s challenge to the validity and constitutionality of Ordinance Nos. 12-107
4.
and 17-088. Id. at ¶ 87. However, this court did not reach the merits of the trial court’s
judgment that the ordinances were valid and constitutional because we sua sponte found
that the judgment was not a final, appealable order. Id. at ¶ 90.
{¶ 8} Upon remand to the trial court, on February 8, 2021, the trial court
reconsidered the City’s motion for summary judgment on Ebner’s equal protection claim.
The court found that Ebner had failed to identify any other similarly situated landowners
to which the ordinances applied but were not enforced. The court further found that
Ebner presented nothing more than speculation and inferences that the criminal
enforcement of the ordinances was motivated by malice unrelated to the City’s official
duties. Thus, the trial court awarded summary judgment to the City on Ebner’s equal
protection claim.
{¶ 9} Ultimately, the remaining claims between Kinzel and Ebner were settled and
dismissed. All of the claims between the parties having been resolved, the trial court’s
April 22, 2019 judgment—holding that Ordinance Nos. 12-107 and 17-088 are valid and
constitutional—is now final and appealable.4
II. Assignments of Error
{¶ 10} Ebner has timely appealed the trial court’s April 22, 2019, and February 8,
2021 judgments, and now presents three assignments of error for our review:
4
On February 26, 2021, the trial court denied Ebner’s motion to reconsider the April 22,
2019 judgment.
5.
1. The trial court erred when it dismissed Ebner’s counterclaims
against the City and denied its motion for summary judgment, holding that
Sandusky Ordinance 12-107 (“2012 Ordinance”) was validly enacted and
constitutional.
2. The trial court erred when it dismissed Ebner’s counterclaims
against the City and denied its motion for summary judgment, holding that
Sandusky Ordinance 17-088 (“2017 Ordinance”) was validly enacted and
constitutional.
3. The trial court erred in granting summary judgment against Ebner
on its equal protection counterclaim against the City, finding that Ebner had
not introduced evidence sufficient to create a genuine issue of material fact.
III. Analysis
{¶ 11} We review the grant or denial of a motion for summary judgment de novo,
applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61
Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77
Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is
appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party
is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one
conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that
6.
conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co.,
54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 12} In his first and second assignments of error, Ebner argues that the trial
court erred when it held that Ordinance Nos. 12-107 and 17-088 were validly enacted and
were constitutional. Ebner organizes his argument by first addressing whether both of the
ordinances were validly enacted, and then addressing whether both of the ordinances are
constitutional. We will do the same.
A. Whether the Ordinances Were Validly Enacted
{¶ 13} In his brief, Ebner argues that neither of the ordinances were validly
enacted because the City failed to strictly adhere to the public notice and hearing
requirements. The City responds that Ordinance No. 12-107 was validly enacted as an
emergency measure, and that Ordinance No. 17-088 was validly enacted because the City
substantially complied with the public notice and hearing requirements. We will begin
with a brief, general discussion of the interplay between the Ohio Constitution, the Ohio
Revised Code, and the City of Sandusky Charter. We will then apply those authorities to
each ordinance in turn.
{¶ 14} Article XVIII, Section 3 of the Ohio Constitution provides that
“Municipalities shall have authority to exercise all powers of local self-government and
to adopt and enforce within their limits such local police, sanitary and other similar
regulations, as are not in conflict with general laws.” “[U]nder such powers of local self-
7.
government a municipality may enact ordinances relating to the subject of zoning.”
Morris v. Roseman, 162 Ohio St. 447, 450, 123 N.E.2d 419 (1954), citing Pritz v.
Messer, 112 Ohio St. 628, 149 N.E. 30 (1925). In Morris, the Ohio Supreme Court
recognized two sources of authority for the way that municipalities may enact ordinances:
By Section 2, Article XVIII,5 a mandatory duty is placed upon the General
Assembly to enact laws for the incorporation and government of cities and
villages, and Section 7, Article XVIII,6 grants a municipality the option of
determining its own plan of local self-government by framing and adopting
a charter. If a municipality adopts a charter it thereby and thereunder has
the power to enact and enforce ordinances relating to local affairs, but, if it
does not, its organization and operation are regulated by the statutory
provisions covering the subject.
Id. The Ohio General Assembly has enacted legislation governing zoning procedure in
R.C. 713.06, et seq. However, in this case, the City has adopted a charter controlling the
manner in which ordinances may be enacted and enforced pursuant to its authority under
Sections 3 and 7 of Article XVIII of the Ohio Constitution. Notably, as it pertains to
5
Article XVIII, Section 2 of the Ohio Constitution provides, in pertinent part, “General
laws shall be passed to provide for the incorporation and government of cities and
villages.”
6
Article XVIII, Section 7 of the Ohio Constitution states, “Any municipality may frame
and adopt or amend a charter for its government and may, subject to the provisions of
section 3 of this article, exercise thereunder all powers of local self-government.”
8.
zoning, the City’s charter does not conflict with “general laws” because R.C. 713.14
expressly precludes the application of R.C. 713.06, et seq. to charter municipalities:
“Sections 713.06 to 713.12, inclusive, of the Revised Code do not repeal, reduce, or
modify any power granted by law or charter to any municipal corporation or the
legislative authority thereof, or impair or restrict the power of any municipal corporation
under Article XVIII of the Ohio Constitution.” Therefore, the City’s charter controls the
zoning amendment process in this case.
{¶ 15} Finally, we note that the burden is on Ebner to demonstrate that the
ordinances were not validly passed. “In the absence of evidence to the contrary, it is
presumed that the procedure necessary to the legal adoption of legislation by a public
legislative body has been followed.” Smith v. Juillerat, 161 Ohio St. 424, 428, 119
N.E.2d 611 (1954), citing City of Youngstown v. Aiello, 156 Ohio St. 32, 37, 100 N.E.2d
62 (1951).
1. Ordinance No. 12-107
{¶ 16} In this case, the City enacted Ordinance No. 12-107 as an emergency
measure. The issue presented by the parties centers on what is the substance and effect of
an emergency measure. Four sections of the City’s charter are pertinent:
[Section] 3 CITY COMMISSION. CREATION AND POWERS.
There is hereby created, commencing January 1, 1980, a City
Commission to consist of 7 electors of the City elected at large, each of
9.
whom shall be elected for a term of 4 years beginning January 1, after their
elections, as hereinafter set forth.
***
All of the powers of the City, except such as are vested in the Board
of Education and except as otherwise provided by this Charter or by the
Constitution of the State, are hereby vested in the City Commission; and
except as otherwise prescribed by this Charter or by the Constitution of the
State, the City Commission may by ordinance or resolution prescribe the
manner in which any power of the City shall be exercised. In the absence
of such provision as to any power, such power shall be exercised in the
manner now or hereafter prescribed by the general laws of the State
applicable to municipalities.
[Section] 12 LEGISLATIVE PROCEDURE
* * * The affirmative vote of at least 4 of the members shall be
necessary to adopt any ordinance or resolution; and the vote upon the
passage of all ordinances and resolutions shall be taken by “yeas” and
“nays” and entered upon the journal.
[Section] 13 ORDINANCE ENACTMENT
***
10.
No ordinance or resolution of a general or permanent nature, or
granting a franchise, or creating a right, or involving the expenditure of
money or the levying of a tax, or for the purchase, lease, sale or transfer of
property, unless it be an emergency measure or unless otherwise provided
by this Charter, shall be passed until it has been read at 2 regular meetings
not less than one week apart, or the requirement for such reading has been
dispensed with by an affirmative vote of 5 of the members of the City
Commission.
[Section] 14 EMERGENCY MEASURES
All ordinances and resolutions passed by the City Commission shall
be in effect from and after 30 days from the date of their passage, except
that the City Commission may, by an affirmative vote of 5 of its members,
pass emergency measures to take effect at the time indicated therein.
Any (sic) emergency measure is an ordinance or resolution for the
immediate preservation of the public peace, property, health, or safety, or
providing for the usual daily operation of a municipal department, in which
the emergency is set forth and defined in a preamble thereto. Ordinances
appropriating money may be passed as emergency measures, but no
measure making a grant, renewal or extension of a franchise or other
11.
special privilege, or regulating the rate to be charged for its service by any
public utility, shall ever be so passed.
{¶ 17} Ebner argues that the charter’s “Emergency Measures” section only
determines when the measure goes into effect. Ebner thus concludes that the City was
still required to comply with the pre-adoption notice and hearing requirements for zoning
legislation contained in Sandusky Municipal Code 1113.02, et seq., which were passed
pursuant to the City’s authority under Section 3 of the charter. The City, on the other
hand, argues that the “Emergency Measures” section grants authority to pass substantive
measures by the vote of five of the seven City Commission members. In effect, Ebner
thinks of Ordinance No. 12-107 as a zoning ordinance with an emergency designation,
whereas the City thinks of Ordinance No. 12-107 as an emergency measure pertaining to
zoning. Based upon the language of the City’s charter, we find the City’s view to be
correct.
{¶ 18} “The municipal charter is basically the constitution of the municipality.”
Fuldauer v. City of Cleveland, 32 Ohio St.2d 114, 118, 290 N.E.2d 546 (1972), quoting
Cleveland ex rel. Neelon v. Locher, 25 Ohio St.2d 49, 51, 266 N.E.2d 831 (1971).
“Municipal charters are to be so construed as to give effect to all separate provisions and
to harmonize them with statutory provisions whenever possible. In the absence of
circumstances requiring otherwise, language used in a municipal charter is to be
12.
construed according to its ordinary and common usage.” State ex rel. Paluf v. Feneli, 69
Ohio St.3d 138, 630 N.E.2d 708 (1994).
{¶ 19} Upon review, we find that the charter recognizes “Emergency Measures” as
a separate category of ordinances and regulations. Section 13 of the charter introduces
the distinction between regular ordinances and resolutions and “Emergency Measures,”
when it states that “No ordinance or resolution of a general or permanent nature * * *
unless it be an emergency measure or unless otherwise provided by this Charter, shall be
passed until it has been read at two regular meetings not less than one week apart * * *.”
(Emphasis added.) Section 14 of the charter again recognizes a distinction in providing
that “All ordinances and resolutions passed by the City Commission shall be in effect
from and after 30 days from the date of their passage, except that the City Commission
may, by an affirmative vote of 5 of its members, pass emergency measures to take effect
at the time indicated therein.” (Emphasis added.) Had the City’s charter stopped there,
we would be tempted to agree with Ebner that an “emergency measure” is simply a
designation pertaining only to the effective date of the ordinance or resolution. However,
Section 14 of the charter continues on, and defines what an emergency measure is: “Any
(sic) emergency measure is an ordinance or resolution for the immediate preservation of
the public peace, property, health, or safety, or providing for the usual daily operation of
a municipal department, in which the emergency is set forth and defined in a preamble
thereto.” Section 14 further places limitations on the substantive content of emergency
13.
measures: “Ordinances appropriating money may be passed as emergency measures, but
no measure making a grant, renewal or extension of a franchise or other special privilege,
or regulating the rate to be charged for its service by any public utility, shall ever be so
passed.” Thus, because the charter distinguishes between ordinances and regulations of a
general or permanent nature and emergency measures, and because the charter provides a
substantive definition of emergency measures, we hold that the City’s charter
contemplates a separate category of substantive ordinances and resolutions known as
“Emergency Measures.” As such, emergency measures are not subject to the procedural
requirements for zoning amendments contained in Sandusky Municipal Code 1113.02, et
seq., pursuant to Section 3 of the charter, which states “except as otherwise prescribed by
this Charter or by the Constitution of the State, the City Commission may by ordinance
or resolution prescribe the manner in which any power of the City shall be exercised.”
(Emphasis added.)
{¶ 20} In opposing this result, Ebner cites several cases as examples where courts
have rejected attempts by a municipality to evade mandatory public hearing and notice
requirements by passing zoning ordinances under the guise of an emergency. We find
the cases to be distinguishable and not persuasive.
{¶ 21} In Morris v. Roseman, 162 Ohio St. 447, 123 N.E.2d 419 (1954), the
question presented to the court was “whether a noncharter municipality, under the ‘home
rule’ provisions of Section 3, Article XVIII of the Constitution of Ohio, possesses the
14.
power to adopt an emergency zoning ordinance effective immediately, or whether such
municipality in adopting a zoning ordinance is governed by [R.C. 713.12], which requires
the holding of a public hearing and the giving of a 30-day notice of the time and place of
such hearing.” The court held that the noncharter village of Oakwood was subject to
R.C. 713.12, and thus “the emergency ordinance it attempted to adopt in a manner
contrary to such statute was wholly unauthorized and ineffective.” Morris at 452. Here,
however, the City is a charter municipality, and thus the procedure for enacting
Ordinance No. 12-107 is derived from the charter and not R.C. 713.12. Therefore, we
find Morris to be clearly distinguishable.
{¶ 22} Likewise, Ebner’s reliance on Village of Wintersville v. Argo Sales Co.,
Inc., 35 Ohio St.2d 148, 299 N.E.2d 269 (1973), is misplaced. In that case, the Ohio
Supreme Court found that a zoning ordinance passed as an emergency ordinance was not
valid because the village of Wintersville failed to provide 30-days notice of a public
hearing, as required by R.C. 713.12. However, like the village of Oakwood in Morris,
the village of Wintersville was not a charter municipality. Thus, we find Wintersville to
be distinguishable.
{¶ 23} Similarly, Fifth Column, LLC v. Village of Valley View, 221 F.3d 1334(Table), 2000 WL 799785 (6th Cir.2000), is inapplicable because that case also involved
whether a non-chartered municipality complied with the requirements of R.C. 713.10 and
713.12 when it enacted an emergency ordinance.
15.
{¶ 24} Turning to cases that involve a charter municipality, in State ex rel. Gulf
Refining Co. v. De France, 89 Ohio App. 334, 101 N.E.2d 782 (6th Dist.1950), the
petitioner purchased land on which it wanted to build a gas station. Prior to the
construction of the gas station, the property was annexed by the city of Toledo. On the
same day that the property was annexed, Toledo enacted an emergency zoning ordinance
that effectively prohibited the construction of the gas station. The petitioner initiated an
original action in this court, seeking a writ of mandamus to compel Toledo to issue a
building permit for the gas station. In overruling Toledo’s demurrer to the action, this
court recognized that authority for zoning ordinances may be derived from a city charter
or from the Revised Code. This court found that “[t]he Toledo charter does not
specifically enumerate the power to enact zoning regulations but does provide that the
city shall have and exercise all powers granted to cities by the Constitution and laws of
Ohio.” Id. at 336-337. Because the Toledo charter did not describe the power to enact
zoning regulations, this court concluded, “The authority for the adoption of the ordinance
herein involved is therefore derived from the statute rather than from the city charter * *
* and must be in accordance with the provisions of [the Revised Code].” Id. at 337. In
contrast to De France, the City’s charter in this case does enumerate the power to enact
substantive emergency measures, and therefore the authority for Ordinance No. 12-107
arises under the City’s charter and not under the Revised Code. Thus, we find De France
to be distinguishable.
16.
{¶ 25} Ebner next cites State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St.
259, 34 N.E.2d 777 (1941). In that case, the property owner secured a building permit
for a business building, but that permit expired in December 1939 without construction
having started. On February 12, 1940, the city of Shaker Heights introduced Ordinance
No. 4708 to rezone the property to multiple-family residence use. At the same meeting,
Shaker Heights passed emergency Ordinance No. 4709, which provided that no permits
shall be issued while any ordinance governing the property is pending before the council
or city planning commission. Eight days later, the property owner applied for a second
permit for the business building. The building inspector refused to issue the permit. Id.
at 259-261.
{¶ 26} On appeal, the Ohio Supreme Court examined Shaker Heights’ charter,
which stated,
“The powers of this city may be exercised in the manner prescribed in this
charter, or, to the extent that the manner is not prescribed herein, in such
manner as the council may prescribe. The powers of the city may also be
exercised, except as a contrary intent appears in this charter or in the
enactments of the council conformably thereto, in such a manner as may
now or hereafter be provided by the general law of Ohio.” (Italics ours.)
Id. at 263. The court also noted that Section 5 of Ordinance No. 4162 provided that “any
emergency measure * * * may be passed after one reading.” Id. The court found that
17.
because neither the charter nor any enactment of council contained a contrary intent, and
because Shaker Heights proceeded in the enactment of Ordinance No. 4708 in
accordance with R.C. 713.12,7 “it is clear that in the matter of zoning, council was
proceeding under the legislative authority of [the Revised Code].” Arnold at 264.
Therefore, the court held that Shaker Heights could not,
dispense with the requisite steps provided by [R.C. 713.12], and thus put
into effect the anticipated legislation not only earlier than otherwise
permitted put (sic) contrary to the plain mandate of the statute that no such
change or amendment shall be made without first submitting the proposed
change or amendment to the planning commission for report and giving
notice by publication of and holding a public hearing on whether the
change or amendment should be made.
Id. at 265.
{¶ 27} The distinction between Arnold and the present case comes in the treatment
of emergency measures in the respective charters. In Arnold, the charter did not provide
for substantive emergency measures, and Ordinance No. 4162 spoke only to an
emergency measure being passed after one reading. Thus, the court concluded that in
passing zoning ordinances, Shaker Heights must comply with the procedures of the
Revised Code. Because the emergency ordinance in Arnold circumvented those
7
In Arnold, the Ohio Supreme Court referenced R.C. 713.12’s predecessor statute,
Section 4366-11 of the General Code.
18.
procedures and retroactively applied Ordinance No. 4708, the court found that it was
invalid. Here, in contrast, the City’s charter provides for substantive emergency
measures not subject to the same procedural requirements as a regular zoning ordinance,
and Ordinance 12-107 was passed as such an emergency ordinance. Therefore, we find
Arnold to be distinguishable.
{¶ 28} Finally, Ebner cites State ex rel. Osting v. City of Sidney, 3d Dist. Shelby
No. 17-2000-21, 2001 WL 272521 (Mar. 20, 2001). In Osting, the city of Sidney passed
Ordinance No. A-2203 rezoning certain lots from heavy industrial to community
business. In opposition to this ordinance, several individuals initiated a referendum
petition to suspend Ordinance No. A-2203. After the referendum petition was filed with
the city clerk, Sidney City Council held a special meeting at which it adopted two
emergency ordinances. Ordinance No. A-2207, the first emergency ordinance,
immediately repealed Ordinance No. A-2203. The second emergency ordinance,
Ordinance No. A-2208, instantly rezoned the lots in the same manner as was done in
Ordinance No. A-2203. The effect of the emergency ordinances was to block the
previously filed referendum petition, and to prevent the filing of any future referendum
petitions. Id. at *1.
{¶ 29} On appeal, the Third District recognized that Sidney was a charter city, and
that pursuant to its authority it enacted code sections providing the requirements and
procedures for amending or changing the zoning of lots. Id. at *3. The court then found
19.
that Ordinance No. A-2207 effectively repealed Ordinance No. A-2203. Id. at *4.
However, the court found that Ordinance No. A-2208 did not comply with the provisions
of the Sidney Code for the enactment of a zoning ordinance, in that Ordinance No. A-
2208 was passed without being first submitted to the Sidney Planning Commission, and
without being subject to public notice and hearing. Id. Thus, the Third District declared
Ordinance No. A-2208 to be invalid. Id. at *5.
{¶ 30} We find the decision in Osting to be of little weight. The court in Osting
held that Ordinance No. A-2208 did not comply with the procedural requirements for
passing a zoning ordinance under the Sidney Code. Here, however, the issue is not
whether Ordinance No. 12-107 complied with the procedural requirements for passing a
zoning ordinance under Sandusky Municipal Code 1113.02, et seq.—the parties agree
that it did not—instead, the issue is whether Ordinance No. 12-107 could be passed as a
valid emergency ordinance without meeting those requirements. Even though the
ordinance in Osting was passed as an emergency measure, the Third District did not
consider the issue, and did not examine the Sidney charter or the Sidney Code for any
provision regarding an emergency ordinance. Therefore, we do not find Osting to be
particularly instructive in the present case.
{¶ 31} Contrary to the position of Ebner and the amici, we note that there have
been instances where courts have upheld an emergency ordinance that was passed
without complying with the public notice and hearing requirements. For example, in
20.
State ex rel. Davis Inv. Co. v. City of Columbus, 175 Ohio St. 337, 194 N.E.2d 859(1963), the Ohio Supreme Court upheld an emergency ordinance that amended the rules
for granting a variance. In that case, the property owner owned seven acres of land that
was classified as a suburban residential district. Wanting to build a shopping center on
the land, the property owner sought a variance pursuant to Section 3309.06(b) of the
Columbus City Codes. Id. at 338. While the variance was before the Board of Zoning
Adjustment, the Columbus City Council adopted Ordinance No. 618-60 as an emergency
measure without notice. Ordinance No. 618-60 amended Section 3309.06, and
effectively mandated the denial of the property owner’s variance application. Id. Prior to
the amendment, Section 3309.06(b) allowed the Board of Zoning Adjustment to grant a
variance in a residential district for a use that would be authorized in a commercial
district, subject to certain conditions. Id. at 339. After the amendment, Section 3309.06
removed the language in subsection (b), and specifically provided that “Nothing herein
shall be construed as authorizing the board to effect changes in the zoning map, or to add
to the uses permitted in any district.” Id. at 340. In a mandamus action before the Ohio
Supreme Court, the court recognized that the city of Columbus was a charter city, and
Section 22 of the charter provided for “emergency measures ‘for the immediate
preservation of the public peace, property, health or safety.’” Id. at 341. The court
concluded that “within the terms of the Columbus charter [the Council of the City of
Columbus] was in the lawful exercise of its prerogatives in enacting the legislation which
21.
tied the hands of the board in reference to allowing relator to use its 7.3 acres for
commercial purposes.” Id. at 342.
{¶ 32} Likewise, in Taylor v. London, 88 Ohio St.3d 137, 723 N.E.2d 1089(2000), the Ohio Supreme Court upheld emergency ordinances that annexed certain
parcels of land. In that case, the London City Council passed two ordinances accepting
applications for annexation. On February 17, 1998, several citizens filed referendum
petitions, requesting that those two ordinances be placed on the ballot at the next general
election. Two days later, in response to the referendum petitions, the London City
Council passed four emergency ordinances. Of the four emergency ordinances, the first
two repealed the previous ordinances accepting the applications for annexation. The
second two accepted the applications for annexation of each parcel of land to the city of
London. Id. at 137-138.
{¶ 33} On appeal, the Ohio Supreme Court recognized that the procedures for
annexation petitions is set forth in R.C. Chapter 709. Id. at 139. Some of those
procedures include filing a petition with the board of county commissioners, and the
holding of a public hearing. If the petition is approved by the commissioners, the petition
and a transcript of the proceedings must be presented to the legislative authority of the
municipal corporation, which may then accept or reject the application for annexation by
resolution or ordinance. Id. at 139-140, citing R.C. 709.02, et seq. The appellants in
Taylor argued, in part, that R.C. 709.10 prohibited the city of London from accepting
22.
annexation applications through emergency legislation. In rejecting this argument, the
Ohio Supreme Court reasoned that although R.C. 709.10 provides that “annexation shall
become effective thirty days after the passage of the resolution or ordinance * * *
accepting annexation,” it was not irreconcilable with R.C. 731.30, which provides that
emergency ordinances take effect immediately. Id. at 142. The court resolved the
conflict between the two statutes by holding “an emergency ordinance accepting
annexation becomes effective immediately in accordance with R.C. 731.30 but citizens
living in the area annexed do not secure rights and privileges until thirty days thereafter
in accordance with R.C. 709.10.” Id. The court explained that “the delay set forth in
R.C. 709.10 provides time for the finalization of the annexation * * * and also allows
time for the municipality to arrange for extension of its services to the newly annexed
area, e.g., garbage collection, police patrol, fire protection, water, and sewer.” Id. The
court concluded that “[i]f the General Assembly had intended * * * to prohibit
municipalities from passing annexation applications by means of emergency ordinances,
it would have stated so in the statutory procedures for annexation. However, no such
language exists in R.C. 709.10, or anywhere in R.C. Chapter 709.” Id. at 143. Thus, the
Ohio Supreme Court held, in part, that “the enactment of emergency legislation by a
municipality accepting an application for annexation of real estate is not prohibited by
R.C. 709.10.” Id.
23.
{¶ 34} We find Davis Inv. Co. and Taylor to be instructive. In Davis Inv. Co., the
Ohio Supreme Court recognized the authority of a charter municipality to pass
emergency measures without notice pursuant to its charter. Here, Section 14 of the City’s
charter similarly grants the authority to pass emergency measures. In Taylor, the Ohio
Supreme Court tacitly affirmed that an emergency measure does not have to comply with
the substantive procedural requirements for ordinances concerning the same subject
matter. Similar to Taylor, nothing in the City’s charter, the Sandusky Municipal Code, or
even R.C. 713.06, et seq., prohibits the City from passing a zoning ordinance by means of
an emergency measure. Therefore, we hold that pursuant to the terms of the City’s
charter, the City was not required to comply with the public notice and hearing
requirements of Sandusky Municipal Code Sections 1113.02, et seq., before it passed
Ordinance No. 12-107 as an emergency measure.8 Consequently, Ordinance No. 12-107
was validly enacted.
8
As a final matter on this issue, we note that both parties cite our decision in Snyder v.
City of Bowling Green, 6th Dist. Wood No. WD-96-036, 1996 WL 715426 (Dec. 13,
1996). In that case, the Bowling Green City Council adopted ordinance number 5821 as
an emergency measure to rezone certain property from agricultural to light industrial.
Snyder challenged the ordinance, arguing that it failed to set forth any reason for the
emergency nature of the ordinance. Id. at *1. Analyzing the text of the emergency
justification, this court determined that the ordinance “failed to apprise voters that their
representatives did have valid reasons for the necessity of declaring that the ordinance
was an emergency.” Id. at *3. In so determining, this court followed a long line of cases
that stand for the proposition that “purely conclusory, tautological, or illusory language in
an emergency measure does not meet the requirements for a valid [emergency]
ordinance.” Id. at *2, quoting State ex rel. Waldick v. Williams, 74 Ohio St.3d 192, 195,
658 N.E.2d 241 (1995); see also State ex rel. Webb v. Bliss, 99 Ohio St.3d 166, 2003-
Ohio-3049, 789 N.E.2d 1102, ¶ 14 (“[T]he statutory duty to set forth reasons for an
24.
{¶ 35} We are not insensitive to the arguments of Ebner and the amici that such a
holding provides municipalities a loophole through which they may circumvent
procedural safeguards by simply declaring the matter an emergency. However, this
concern has long been tolerated in Ohio. As stated in State ex rel. City of Fostoria v.
King, 154 Ohio St. 213, 220-221, 94 N.E.2d 697 (1950),
It may seem strange to sustain legislation as emergency legislation
not subject to referendum, where there is in fact no emergency, or where
the reasons given for the necessity and for declaring the emergency do not
appear to be valid reasons. However, as does Section 4227-3, General
Code, provisions for emergency legislation usually safeguard referendum
rights by requiring substantially more than a majority vote to enact
emergency in an ordinance is mandatory. Hence, the failure to do so, for example, by
including purely conclusory, tautological, or illusory language in the emergency measure
fails to meet the R.C. 731.30 requirements for a valid emergency ordinance.”).
Nevertheless, this court held that because no referendum petition was filed, the ordinance
went into effect as a regular ordinance. Id. at *3.
Upon review, we do not find Snyder to be particularly applicable to the present
case. The facts in Snyder do not provide any insight into whether certain procedural
requirements of public notice and hearing were complied with before the ordinance was
passed as an emergency measure. Thus, the case is of limited utility in addressing
Ebner’s argument that emergency measures must still comply with those procedural
requirements. Instead, Snyder focuses on the adequacy of the justification for the
emergency declaration, citing a line of cases which address that issue. However, Ebner
expressly does not make that argument, stating in his reply brief that “Ebner is not asking
this Court to review the existence of an emergency. Instead, Ebner argues that, even if
the City had properly raised an emergency, it could not use that emergency to flout its
own pre-enactment procedures.” Therefore, we do not rely on Snyder in reaching our
decision.
25.
emergency legislation. The statutory requirement of stating reasons for
declaring the emergency is provided only to satisfy voters that their
representatives did have valid reasons for the necessity of declaring that the
ordinance was an emergency. If there was in fact no emergency or if the
reasons given for such necessity are not valid reasons, the voters have an
opportunity to take appropriate action in the subsequent election of their
representatives. However, the existence of an emergency or the soundness
of such reasons is subject to review only by the voters at such a subsequent
election of their representatives. They are not subject to review by the
courts.
Thus, the Ohio Supreme Court points to the ballot box as the appropriate remedy for any
abuse of emergency measures.
2. Ordinance No. 17-088
{¶ 36} Ebner next argues that Ordinance No. 17-088 was not validly enacted in
accordance with the relevant provisions of the Sandusky Municipal Code, which include:
1113.01 INTENT
(a) This Zoning Code and the Zone Map may be amended
periodically in order to keep it abreast of new zoning techniques, as well as
when the following general conditions arise:
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(1) Whenever a general hardship prevails throughout a given district;
and
(2) Whenever a change occurs in land use, transportation, or other
sociological trends, either within or surrounding the community; and
(3) Whenever extensive developments are proposed that do not
comply but would be in the public interest.
(b) Such amendments shall be made in accordance with the
legislative procedures set forth below.
1113.02 INITIATION OF CHANGE
Whenever the public necessity, general welfare, or good zoning
practice require, the Planning Commission may propose by motion to
amend, supplement, or change these regulations or the zoning district of
property within the City. A proposed change of the Zoning Code or the
Zone Map may be initiated by the Planning Commission, the legislative
body, or the owner or agent of an owner of the property to which the
change would apply. If the application is made by a person other than the
owner, it shall be accompanied by a verified statement by the owner that
the person making the application is authorized to make the application. If
initiated by the legislative body, the owner, or agent of the owner, the
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amendment shall be referred to the Commission before action is taken by
the legislative body.
1113.03 ACTION BY PLANNING COMMISSION
The Planning Commission may at its discretion hold a public
hearing. However, at this level, a public hearing is not required because the
Planning Commission’s approval or denial is to be made solely on the facts
and not testimony. Whether a hearing is held or not, the Planning
Commission is required to make its recommendation and report to the City
Commission within thirty (30) days after the first regular meeting
subsequent to the receipt of the application. If a hearing is held, notice of
the time, place, and purpose of the hearing shall be given by both of the
following methods:
(a) Publication at least once in a newspaper of general circulation in
the City at least fifteen (15) days prior to the date of the hearing;
(b) A printed notice, not less than ten (10) days prior to the date of
the hearing, sent to the owners of all property as shown upon the records of
the County Recorder, within three hundred (300) feet of the area proposed
to be changed.
(c) The Planning Commission may approve or disapprove the
amendment, either in whole or in part, and then submit a recommendation
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to the legislative body. In the event the Planning Commission shall fail to
act within a thirty (30) day period, unless time is extended by the legislative
body, then lack of action shall constitute Commission approval of the
amendment.
1113.04 ACTION BY LEGISLATIVE BODY
(a) After receiving the above recommendation, or after the thirty
(30) day period of inaction, the City Commission shall set a date for a
public hearing. In a newspaper of general circulation in the City, notice of
the time and place of the meeting shall be given at least (30) days prior to
the meeting. During the thirty (30) day period, the text or copy of the text
of the ordinance, measure, or regulation, and the maps, plans, and reports
submitted by the Planning Commission shall be on file, for public
examination, in the office of the Clerk of the Planning Commission.
(b) After the hearing, the legislative body may approve in whole or
in part by majority vote of its entire membership, the recommendations
submitted by the Planning Commission. The legislative body may
disapprove or modify the recommendations by the Planning Commission
by a vote of not less than three-fourths of its entire membership.
{¶ 37} The facts pertaining to the enactment of Ordinance No. 17-088 are
undisputed. On May 17, 2016, and February 15, 2017, the City held public information
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meetings about proposed changes to the regulation of short-term or transient rentals.
Ebner attended both of those meetings. On February 28, 2017, the City submitted to the
Planning Commission an application to amend the city code. Included with the
application was a report from the Planning Department, which explained the factual basis
for the amendment, and which contained a copy of the proposed text of the ordinance.
{¶ 38} The Planning Commission held a public meeting and approved the
proposed changes on March 8, 2017. Notice of the March 8, 2017 meeting had been sent
on February 17, 2017. Ebner attended the March 8, 2017 meeting. At that meeting, the
Planning Commission voted unanimously to recommend the proposed text of the
ordinance, with one modification to repeal the definition of “non-transient.” The
modification did not change the basic rule that transient rentals in residential areas would
continue to be prohibited.
{¶ 39} On March 13, 2017, the City voted to set a public hearing on April 24,
2017, for its proposed changes to the city code. Notice of the April 24, 2017 hearing was
published on March 20, 2017, in a local newspaper. The public notice stated that further
details and information regarding the proposed zoning changes could be obtained from
the Assistant Planner.
{¶ 40} The final text of the proposed ordinance and the Planning Commission’s
recommendation regarding that ordinance were prepared on April 12, 2017. The
Planning Commission’s recommendation was transmitted to the City on April 19, 2017.
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The final text of the proposed ordinance no longer contained a definition for “non-
transient,” and altered the definition of “transient occupancy.”
{¶ 41} A public hearing on the proposed ordinance was held before the City
Commission on April 24, 2017. Ebner attended that hearing. On May 8, 2017, the City
Commission unanimously passed Ordinance No. 17-088.
{¶ 42} Based upon the above facts, it is clear that the City did not strictly comply
with the Sandusky Municipal Code. The Sandusky Municipal Code contemplates that
the City Commission will not take any action on a proposed zoning regulation until either
a recommendation has been submitted by the Planning Commission, or 30 days have
passed without any recommendation by the Planning Commission. Once either of those
two triggering events occurs, then the City Commission “shall set a date for a public
hearing,” giving at least 30 days public notice. SMC 1113.04. During those 30 days, the
text of the ordinance, and any maps, plans, or reports submitted by the Planning
Commission “shall be on file, for public examination, in the office of the Clerk of the
Planning Commission.” Id.
{¶ 43} Here, the City Commission did not wait until it received the
recommendation from the Planning Commission—nor did it wait until after the 30-day
period of inaction—to set a date for a public hearing. Instead, the City Commission acted
quickly, and on March 13, 2017, scheduled a public hearing on the proposed change for
April 24, 2017. Thus, pursuant to SMC 1113.04, the text of the ordinance, and the maps,
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plans, or reports submitted by the Planning Commission must have been on file, for
public examination, no later than March 25, 2017. However, the final text of the
ordinance and the Planning Commission report were not prepared until April 12, 2017.
Therefore, at best, the text of the ordinance and the maps, plans, or reports submitted by
the Planning Commission, were only available for review for 12 days prior to the public
hearing.
{¶ 44} In briefing before this court, Ebner cites several Ohio Supreme Court cases
that recognize that compliance with the analogous Revised Code section is mandatory.
See Wintersville, 35 Ohio St.2d at 152, 299 N.E.2d 269 (“[W]ith respect to the procedure
to be followed in the adoption of zoning ordinances, it was mandatory to adhere to the
provisions of R.C. 713.12, which necessitate a public hearing, preceded by a 30-day
notice of the time and place of such public hearing.”); Morris, 162 Ohio St. at 451-452,
123 N.E.2d 419 (“Since the noncharter village of Oakwood was subject to the statutory
enactments with respect to the procedure to be followed in the adoption of zoning
ordinances, it was required to follow the provisions of Section 4366-11, General Code,
Section 713.12, Revised Code, which necessitated a public hearing preceded by a 30-day
notice thereof, and the emergency ordinance it attempted to adopt in a manner contrary to
such statute was wholly unauthorized and ineffective.”); Arnold, 138 Ohio St. at 266, 34
N.E.2d 777. Ebner further recognizes the general principal that “[z]oning regulations are
in derogation of the common law and deprive a property owner of certain uses of his land
32.
to which he would otherwise be lawfully entitled.” Saunders v. Clark Cty. Zoning Dept.,
66 Ohio St.2d 259, 261, 421 N.E.2d 152 (1981). Thus, Ebner concludes that strict
compliance with the procedural statutes is necessary. Because the City did not provide
the full 30 days for public review of the documents, Ebner concludes that Ordinance No.
17-088 was not validly enacted.
{¶ 45} The City, on the other hand, argues that it was not required to strictly
comply with its own code provisions, and that substantial compliance is sufficient. Like
Ebner, the City cites several cases in support.
{¶ 46} Upon our review of the case law, we agree with the City’s general
proposition that substantial compliance with procedural requirements is sufficient for the
valid enactment of a zoning ordinance. However, we hold that the City did not
substantially comply with its own procedural requirements in this case.
{¶ 47} In Swickrath & Sons, Inc. v. Village of Elida, 3d Dist. Allen No. 1-03-46,
2003-Ohio-6288, ¶ 15, the Third District recognized that “[c]ourts have repeatedly held
that the requirements of a procedural statute are met when the municipality substantially
complies with the statute’s procedural mandates, which requires the municipality to act in
a way to achieve the purpose of the statute.” In that case, public notice of the hearing to
discuss the zoning ordinance was required to be published in a newspaper of general
circulation pursuant to R.C. 713.12. No such notice was published. Instead, the village
made public postings in at least five locations, providing the time, place, and purpose of
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the hearing. In addition, the village had the same information printed on each resident’s
water bill for the month preceding the hearing. Id. at ¶ 19. The Third District found that
“this individualized notice served the same purpose as the publication in the newspaper
of general circulation would have served.” Id. The Third District also noted that the
notice was effective as village residents, including the Swickraths, attended the hearing,
and there was no evidence that the rights of any property owners were prejudiced, or that
any village resident was precluded from commenting on the proposed zoning. Id. at ¶ 20.
Thus, the Third District held that the notice of the hearing was in substantial compliance
with the requirements of R.C. 713.12. Id.
{¶ 48} In U.S. Cement Co. v. Poland Twp. Bd. of Trustees, 7th Dist. Mahoning
No. 91 C.A. 72, 1994 WL 650238 (Nov. 17, 1994), the Seventh District examined notices
of public hearings before the zoning commission and before the township board of
trustees that contained several statutory defects under R.C. 519.12. In particular, the
notices did not contain the name of the zoning commission addressing the hearing, failed
to include the times when the maps would be available for an inspection, and failed to
state that the trustees would consider the amendments after the hearing. Id. at *3.
Nonetheless, the Seventh District held that the notices substantially complied with the
statute, the purpose of which it identified was to “provide notice of the hearing to all
interested parties.” Id., citing Andrews v. Diefenbach, 175 Ohio St. 120, 191 N.E.2d 815(1963). The court found that nothing in the record demonstrated that any interested party
34.
did not have notice of the proceedings, and that the appellants were not prejudiced since
they were present and represented by counsel at the hearings. Id.{¶ 49} The City also cites Schlagheck v. Winterfield, 108 Ohio App. 299, 307-308,
161 N.E.2d 498 (1958), in which this court held that there was no prejudicial error in the
failure of a published notice to include the place and time at which the text and maps of a
zoning resolution might be examined as required by R.C. 519.06. R.C. 519.06 applies to
township zoning commission hearings, and provides,
Before certifying its recommendations of a zoning plan to the board of
township trustees, the township zoning commission shall hold at least one
public hearing, notice of which shall be given by one publication in one or
more newspapers of general circulation in the township at least thirty days
before the date of such hearing. The notice shall state the place and time at
which the text and maps of the proposed zoning resolution may be
examined.
This court found that aside from the defective notice before the township zoning
commission, all other procedural steps set forth in R.C. Chapter 519 were followed
incident to the adoption of the zoning resolution. Schlagheck at 308. Further, in addition
to noting that appellants had not even raised the notice issue as a separate assignment of
error, this court found that the appellants were not prejudiced because they were
represented by counsel “at the several proceedings before the planning commission, the
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zoning commission and the board of trustees, and no objection was made regarding such
defect at the public hearing held by such board.” Id.{¶ 50} In White v. City of Parma, 8th Dist. Cuyahoga No. 49539, 1985 WL 8635(Sept. 26, 1985), the Whites challenged the validity of an ordinance originally enacted in
1931, nearly 50 years before they purchased their property. The Whites argued that there
was no indication that 30-days notice was given before a public hearing on the ordinance.
Id. at *3. In rejecting the Whites’ appeal, the Eighth District noted that the limited
records before it did not conclusively establish whether a public meeting was held before
the ordinance was passed. However, the court found that it was apparent that the
planning commission worked on the ordinance for almost one year, and that the citizens
were notified of the proposed ordinance nearly one year before it was enacted. Id. at *2.
The Eighth District held that, in the absence of evidence to the contrary, it “[was]
presumed that the necessary procedures for legal adoption of legislation were followed.”
Id. at *3. Thus, the court refused to invalidate the 1931 ordinance. Id.
{¶ 51} Finally, in Andrews v. Diefenbach, 175 Ohio St. 120, 191 N.E.2d 815(1963), the Ohio Supreme Court upheld Lucas County’s approval of an annexation
petition where the statutory notice requirements were not strictly followed. In that case,
R.C. 707.05 required that notice of the hearing was to be published “for a period of six
consecutive weeks,” but the notice was posted for only 40 days, not 42. Id. at 121-122.
In addition, R.C. 707.05 required that the hearing shall be held “not less than sixty days”
36.
after the petition was filed with the county auditor, but the hearing was held after only 46
days. Id. The Ohio Supreme Court reasoned that “[t]he only apparent purposes for the
foregoing statutory requirements would be to provide notice of the hearing to all
interested parties so that they would have ample time to prepare for the hearing.” Id. at
122. The court found that “there is nothing in the record to indicate that those purposes
have not been fully satisfied,” noting that, at the hearing, “much testimony was presented
by both proponents and opponents of the proposed annexation but no objection was made
by anyone about the notice or about the time of the hearing.” Id.
{¶ 52} All of the cases relied upon by the City are distinguishable from the present
situation. Schlagheck and to a partial extent U.S. Cement involved preliminary
proceedings before the planning commission, which we find to be meaningfully different
from the present case involving final proceedings before the legislative authority.
Andrews involved annexation proceedings, which do not directly impose the same
restrictions on the use of private property as do zoning regulations. White involved a
challenge to a 50-year old ordinance where there no longer existed good records of the
proceedings and it was presumed that the proper legislative process was followed.
Finally, the remaining case, Swickrath, exemplifies the fundamental difference between
all of the above cited cases and the matter before us.
{¶ 53} In Swickrath—and Andrews, Schlagheck, and U.S. Cement—the issue
before the court was the sufficiency of the notice, and the question the court resolved was
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whether the fundamental purposes of the statutes providing for notice were satisfied. The
court in Swickrath identified the purpose of the notice requirement in R.C. 713.12 as “to
provide notice of the proceedings to the public because actions of the legislative authority
may affect their rights.” Swickrath, 3d Dist. Allen No. 1-03-46, 2003-Ohio-6288, at ¶ 15.
Likewise, Andrews identified the purpose of the notice requirement in R.C. 707.05 as “to
provide notice of the hearing to all interested parties so that they would have ample time
to prepare for the hearing.” Andrews, 175 Ohio St. at 122, 191 N.E.2d 815; see also U.S.
Cement, 7th Dist. Mahoning No. 91 C.A. 72, 1994 WL 650238, at *3 (citing Andrews in
finding that “[t]he purpose of the statute is to provide notice of the hearing to all
interested parties”). In those cases, the courts found that because the interested parties
knew about the hearings and were present at them, the purposes of the statutes were
satisfied.
{¶ 54} Here, however, the issue is not with the sufficiency of the notice and
whether Ebner knew to show up at the April 24, 2017 hearing. Instead, the issue is
whether Ebner had access to all of the relevant material for a sufficient time before the
hearing. To that end, SMC 1113.04(a) requires, “During the thirty (30) day period, the
text or copy of the text of the ordinance, measure, or regulation, and the maps, plans, and
reports submitted by the Planning Commission shall be on file, for public examination, in
the office of the Clerk of the Planning Commission.” Ebner correctly identifies that such
a requirement “is designed to safeguard property rights and to give property owners a fair
38.
opportunity to enter a protest against an ordinance or regulation which may materially
interfere with the use of their property or decrease its value.” Morris, 162 Ohio St. at
450-451, 123 N.E.2d 419.
{¶ 55} As to whether the City substantially complied with SMC 1113.04(a), Ebner
argues that because the text of the ordinance and the Planning Commission’s
recommendation and report were not prepared until April 12, he did not have a fair
opportunity to enter a protest against the ordinance. The City, on the other hand, argues
that Ebner had access to the materials supporting the Planning Commission’s
recommendation for at least 30 days before April 24. Those materials included a
February 28, 2017 report from the Planning Department, which explained the factual
basis for the amendment and contained a copy of the proposed text of the ordinance. In
addition, Ebner was present at the March 8, 2017 Planning Commission hearing where
the report from the Planning Department was discussed, and the decision was made to
recommend the report with one modification to repeal the definition of “non-transient.”
Ebner also had access to the notes and audio taken from the March 8, 2017 hearing.
Thus, the City concludes that Ebner suffered no prejudice in his effort to protest against
the ordinance. In response, Ebner counters that the Planning Department report, and the
notes and audio from the March 8, 2017 hearing, are not a substitute for the text of the
ordinance and the Planning Commission’s recommendation and report.
39.
{¶ 56} We agree with Ebner that the City did not substantially comply with SMC
1113.04(a). SMC 1113.04 identifies that the matter before the City Commission is the
report and recommendation of the Planning Commission, and provides that only a
majority of the City Commission is required to approve of the Planning Commission’s
recommendation, whereas three-fourths of the City Commission is required to disapprove
or modify the Planning Commission’s recommendation. SMC 1113.04(b). Because the
matter at issue is the Planning Commission’s recommendation, we think it is imperative
that the recommendation itself is available for review. Thus, we reject the City’s
argument that having knowledge of the underlying facts and reports is sufficient to satisfy
the requirement. Furthermore, we find that, at best, the recommendation was available
for review for only 12 days before the hearing, which is 40 percent of the required 30
days. We can envision a scenario in which making the recommendation available for less
than 30 days is a de minimis violation that still constitutes substantial compliance, but 12
out of 30 days is not such a case. Therefore, we hold that the City failed to substantially
comply with SMC 1113.04(a) when it enacted Ordinance No. 17-088, and thus that
ordinance is invalid.
B. Whether the Ordinances are Constitutional
{¶ 57} Ebner next argues that Ordinance Nos. 12-107 and 17-088 are
unconstitutional. Because we held that Ordinance No. 17-088 is invalid, we will not
address the constitutionality of that ordinance since “courts decide constitutional
40.
questions only when ‘absolutely necessary.’” State ex rel. BSW Development Group v.
City of Dayton, 83 Ohio St.3d 338, 345, 699 N.E.2d 1271 (1998), quoting Norandex, Inc.
v. Limbach, 69 Ohio St.3d 26, 28, 630 N.E.2d 329 (1994); Hall China Co. v. Public
Utilities Commission, 50 Ohio St.2d 206, 210, 364 N.E.2d 852 (1977) (“Ohio law
abounds with precedent to the effect that constitutional issues should not be decided
unless absolutely necessary.”).
{¶ 58} Focusing on Ordinance No. 12-107, we begin with the rule that properly
enacted zoning ordinances “are entitled to a ‘strong presumption of constitutionality,’ and
the individual asserting the unconstitutionality of a statute ‘bears the burden of proving
that the law is unconstitutional beyond a reasonable doubt.’” Viviano v. Sandusky, 2013-
Ohio-2813, 991 N.E.2d 1263, ¶ 11 (6th Dist.), quoting Yajnik v. Akron Dept. of Health,
Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16; Leslie v. City of
Toledo, 66 Ohio St.2d 488, 489-490, 423 N.E.2d 123 (1981) (“[T]he party challenging a
zoning ordinance, has the burden of demonstrating the unconstitutionality of such an
ordinance. * * * Zoning ordinances, enacted pursuant to a municipality’s police powers,
are presumed valid until the contrary is clearly shown by the party attacking the
ordinance.”).
1. Void for Vagueness
{¶ 59} Ebner first argues that Ordinance No. 12-107 is void for vagueness. “It is a
basic principle of due process that an enactment is void for vagueness if its prohibitions
41.
are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294,
33 L.Ed.2d 222 (1972). “To pass muster under the void-for-vagueness doctrine, Ohio
law dictates that an ordinance must survive the tripartite analysis set forth in Grayned[:]
* * * (1) the ordinance must provide fair warning to the ordinary citizen of what conduct
is proscribed, (2) the ordinance must preclude arbitrary, capricious, and discriminatory
enforcement, and (3) the ordinance must not impinge constitutionally protected rights.”
Viviano at ¶ 15, citing Grayned at 108-109.
{¶ 60} Viviano is particularly relevant to this case because it involves the
precursor to Ordinance No. 12-107. In that case, as here, Viviano owned a house located
on Cedar Point Road on the Cedar Point Chaussee, which he used as a short-term rental
property. Viviano received a cease and desist order from the City, alleging that his short-
term rentals violated the Sandusky Municipal Code, and constituted misdemeanors of the
fourth degree. Thereafter, Viviano challenged as unconstitutionally vague the ordinances
that limited the use of his property to “one-family dwellings,” and which defined
“dwelling” as a “building designed or occupied exclusively for non-transient residential
use (including one-family, two-family, or multifamily buildings).” 9 Id. at ¶ 4. In
evaluating the ordinances under the three prongs of the Grayned test, this court first
9
Ebner was a party to the litigation along with Viviano. In Ebner v. Sandusky, 6th Dist.
Erie No. E-12-057, 2013-Ohio-2475, ¶ 12, which was decided two weeks before Viviano,
this court similarly affirmed the trial court’s judgment that the ordinances were
unconstitutionally vague. The decisions in Ebner and Viviano do not reference one
another.
42.
found that the use of the disjunctive “or” in defining a dwelling would lead a person of
ordinary intelligence to reasonably believe that having a house that was either “designed
or occupied exclusively for non-transient rental use” would be sufficient under the zoning
ordinances. (Emphasis added.) Id. at ¶ 17. Thus, this court found that the ordinances did
not satisfy the first prong of Grayned. Id. Turning to the second prong, this court found
that the term “non-transient” was not defined in the ordinances and did not lend itself to a
plain and unambiguous meaning. Id. at ¶ 19. Looking at the dictionary definition of
“transient,” this court remarked that it only provided an equally imprecise standard of
“brief.” Id. at 20. This court reasoned that
[a]bsent a time scale, the term is rendered entirely subjective and incapable
of providing guidance to either the citizen or the enforcing party. * * * In
this manner, “transient” (and by extension “non-transient”) would
encompass not only rentals, but month-to-month leases, vacation homes
used sporadically, and loans of a property to friends. Given a sufficiently
long timeframe, the zoning board could declare any use of any property by
any citizen to be “transient.”
Id. This court found that the subjective nature of the term could lead to arbitrary
application, and thus the ordinance violated the second prong of Grayned. Id. at ¶ 21.
Consequently, this court held that the ordinances were unconstitutionally vague. Id. at ¶
22.
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{¶ 61} While Viviano was pending, the City enacted Ordinance No. 12-107 as an
emergency measure. Ordinance No. 12-107 deleted the phrase “designed or” from the
definition of dwelling, with the resulting definition being “a building occupied
exclusively for non-transient and residential use.” Kinzel v. Ebner, 2020-Ohio-4165, 157
N.E.3d 898, ¶ 9 (6th Dist.). Ordinance No. 12-107 also defined “non-transient” to mean
“a period of not less than 365 days,” and defined “transient occupancy” to mean
“occupancy when it is the intention of the parties that the occupancy will be temporary.
There is a rebuttable presumption that, when the dwelling unit occupied is not the sole
residence of the guest, the occupancy is transient.” Id.{¶ 62} In the present appeal, Ebner argues that Ordinance No. 12-107 is
unconstitutionally vague in that the definition of “non-transient” describes a yearly use,
not a non-transient use. Ebner contends that “non-transient” cannot be understood to
mean a period of 365 days or more. Further, Ebner emphasizes that the term “transient
occupancy” uses the ambiguous standard of “temporary,” which does not provide an
actual length of time, and that the definition of “transient occupancy” contradicts the
definition of “non-transient” because a period of up to 364 days is not temporary.
{¶ 63} Applying the three prongs of the Grayned test, we conclude that Ordinance
No. 12-107 is not unconstitutionally vague. First, the ordinance provides fair warning to
the ordinary citizen that in a residential area zoned for single-family dwellings, the
building must be occupied exclusively for non-transient and residential use. Non-
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transient means a period of not less than 365 days. Thus, the building must be occupied
exclusively for periods of one year or more. Attempting to introduce ambiguity to the
definition, Ebner cites the testimony of one of the City’s witnesses that the 365-day term
“is not * * * logical * * * doesn’t make sense.” However, the witness’s testimony clearly
conveys that she thinks it is imprudent to define non-transitory in such a manner; the
testimony does not convey that she does not understand how the term was defined.
Notably, the City Commission evidently agreed that the 365-day requirement was too
long, and attempted to amend the definition in Ordinance No. 17-088. Nevertheless, we
are not tasked to determine whether the ordinance was wise or unwise, only whether it
was understandable to an ordinary citizen. In this case, we find that it is clear that non-
transient occupancy means an occupancy for 365 days or more. Therefore, we find that
the first Grayned prong is satisfied.
{¶ 64} Under the second prong, the ordinance must preclude arbitrary, capricious,
and discriminatory enforcement. We find that it does. Unlike the predecessor statute in
Viviano, which left the definition of non-transient to the whims of the commission, here
the term non-transient is given a fixed, certain definition of not less than 365 days. Thus,
any residential occupancy that is less than 365 days is in violation of the ordinance.
Therefore, we find that the second Grayned prong is satisfied.
{¶ 65} Finally, under the third prong, Ebner argues that Ordinance No. 12-107
impinges his constitutionally protected rights in that the vagueness of the ordinance
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violates his right to due process, and the arbitrary enforcement of the ordinance violates
his right to equal protection. Because we found above that the statute is not vague and
does not lend itself to arbitrary enforcement, we reject Ebner’s arguments that his
constitutional rights were impinged. Therefore, we find that the third Grayned prong is
satisfied.
{¶ 66} Accordingly, we hold that Ordinance No. 12-107 is not unconstitutionally
vague.
2. Whether Ordinance No. 12-107 is Unconstitutional on its Face
{¶ 67} Ebner next argues that Ordinance No. 12-107 is unconstitutional because it
lacks a rational relationship to any legitimate governmental purpose.
{¶ 68} “Zoning is a valid legislative function of a municipality’s police powers.”
Jaylin Investments, Inc. v. Moreland Hills, 107 Ohio St.3d 339, 2006-Ohio-4, 839 N.E.2d
903, ¶ 10, citing Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303(1926). “Courts should not interfere with zoning decisions unless the municipality
exercised its power in an arbitrary and unreasonable manner and the decision has no
substantial relation to the public health, safety, morals, or general welfare.” Id., citing
Euclid at 394. “A zoning ordinance may be challenged as unconstitutional on its face or
as applied to a particular set of facts.” Id. at ¶ 11. “In a facial challenge to a zoning
ordinance, the challenger alleges that the overall ordinance, on its face, has no rational
relationship to a legitimate governmental purpose and it may not constitutionally be
46.
applied under any circumstances.” Id., citing State ex rel. Bray v. Russell, 89 Ohio St.3d
132, 137, 729 N.E.2d 359 (2000). “The burden of proof remains with the party
challenging an ordinance’s constitutionality, and the standard of proof remains ‘beyond
fair debate.’” Id. at ¶ 13, quoting Goldberg Cos., Inc. v. Richmond Hts. City Council, 81
Ohio St.3d 207, 214, 690 N.E.2d 510 (1998). “[T]here is little difference between the
‘beyond fair debate’ standard and the ‘beyond a reasonable doubt’ standard.” Cent.
Motors Corp. v. Pepper Pike, 73 Ohio St.3d 581, 584, 653 N.E.2d 639 (1995), citing
Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988).
{¶ 69} In support of his argument, Ebner points to the testimony of the City
Planning Director, who testified that she could not think of any reason that requiring
someone to live in a property for 365 days or more relates to the health, safety, or general
welfare of the city. In response, the City argues that transient rentals cause issues relating
to late night noise and partying, trespassing, traffic congestion, trash and litter, and safety
concerns for older residents.
{¶ 70} Upon review, and mindful of the high burden that Ebner carries, we agree
with the City that it has a legitimate government interest in the noise, trespassing, traffic,
trash, and safety concerns of a neighborhood and its residents. See id. at 585 (city may
exercise its zoning authority to preserve the character of the area and promote the overall
quality of life). Furthermore, we find that the City’s prohibition on transient rentals of
less than 365 day is rationally related to the promotion of that governmental interest, and
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Ebner has not satisfied his burden of demonstrating that there are no circumstances under
which Ordinance No. 12-107 could be constitutionally applied. Therefore, we hold that
Ordinance No. 12-107 is not unconstitutional on its face.
3. Whether Ordinance No. 12-107 is Unconstitutional as Applied
{¶ 71} Ebner alternatively argues that Ordinance No. 12-107 is unconstitutional as
applied to his properties. “In an ‘as applied’ challenge to a zoning ordinance, the
landowner questions the validity of the ordinance only as it applies to a particular parcel
of property. If the ordinance is unconstitutional as applied under those limited
circumstances, it nevertheless will continue to be enforced in all other instances.” Jaylin
Investments at ¶ 12. The standard utilized in an “as applied” challenge is similar to that
of a facial challenge: “a zoning regulation is presumed to be constitutional unless
determined by a court to be clearly arbitrary and unreasonable and without substantial
relation to the public health, safety, morals, or general welfare of the community.” Id. at
¶ 13, quoting Goldberg at syllabus.
{¶ 72} Here, Ebner argues that Ordinance No. 12-107 is unconstitutional as
applied because his properties are different from a typical neighborhood. Ebner notes
that the City’s stated purpose of zoning regulations in residential areas is to prevent
noxious fumes, odors, dust, excessive noises, and the invasion of abnormal traffic.
However, Ebner argues that his properties abut Cedar Point Amusement Park, which
generates loud noises, debris, litter, and an influx of approximately 20,000 guests per day.
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Thus, he contends that there is no legitimate public purpose in prohibiting the short-term
rental of his properties when those properties are already permeated by the objectionable
influences.
{¶ 73} The City, in opposition, argues that although Cedar Point is nearby, the
Chaussee has maintained its residential character. Further, the City argues that while
Cedar Point does generate noise, transient rentals along the Chaussee cause separate
issues such as late night noise and partying, trespassing, traffic congestion, trash and
litter, and safety concerns.
{¶ 74} The parties primarily rely on two cases in support of their positions. Ebner
cites Mayfield-Dorsh, Inc. v. City of South Euclid, 68 Ohio St.2d 156, 157, 429 N.E.2d
159 (1981), in which the Ohio Supreme Court held that the property owners clearly
demonstrated, beyond fair debate, that a zoning classification allowing only single or
two-family residences was unconstitutional as applied to a 3.45 acre parcel of land. In
that case, the property owners sought to have the parcel re-zoned to a “residence-office
district” to permit them to construct a 45-unit condominium complex. The City of South
Euclid, opposed the project, and proposed using the property for eight single or two-
family homes. The Ohio Supreme Court considered that the property owners’ proposal
would result in only one or two driveways along a busy thoroughfare, whereas the city’s
proposal would result in eight driveways, thus creating a safety problem. Id. at 157-158.
The Ohio Supreme Court also considered that the property owners’ proposal would be
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harmonious with existing zoning of the property forming the western boundary, which
was zoned residence-office, and which contained a public library. Adjacent to the library
to the west, was another residence-office district that housed a florist, a funeral home, and
a medical center. In addition, the area surrounding the 3.45 acre parcel had not
maintained its residential character. Id. at 158. Finally, the court considered that given
the unique topography of the land, any structures would have to be clustered in the center
of the property, and that the city’s proposal of eight single or two-family homes was not
feasible because it envisioned homes being built directly on a flood plain. Id. at 159.
Therefore, the Ohio Supreme Court held that the residential zoning classification was
unreasonable, arbitrary, and not substantially related to the public health, safety, and
general welfare. Id.
{¶ 75} The City, for its part, cites Lesley v. Toledo, 66 Ohio St.2d 488, 423 N.E.2d
123 (1981). In that case, the property owner purchased four lots, and sought to have
them rezoned from residential to commercial so that he could construct an office building
on the property. The Toledo City Council denied his rezoning request, and the trial court
affirmed. On appeal, this court, in a split decision, reversed the trial court, and held that
the retention of the residential classification of the property was arbitrary, unreasonable,
and bore no substantial relation to the public health, safety, morals, or general welfare of
the community. On appeal to the Ohio Supreme Court, the court reversed, and reinstated
the decision of the Toledo City Council. The Ohio Supreme Court reasoned that the
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property lay in the center of five blocks of a residential neighborhood. Id. at 490. The
only property within those five blocks that was not residential were two lots east of the
fire station, which were zoned commercial. Id. Regarding those two lots, the court
noted, “the mere existence of some adjacent property devoted to other uses does not
destroy the character of restricted property for residential purposes or render the
restrictions arbitrary.” Id., quoting Wilkins v. San Bernadino, 29 Cal.2d 332, 344, 175
P.2d 542 (1946). The court determined that while there were changes along a boundary
street of the residential area, and thus there was now “shopping centers, gasoline service
stations and other commercial establishments within the general vicinity of the subject
property,” the residents lived in an exclusively residential area. Id. The court concluded
that “[t]he city council’s decision not to alter the subject property’s status from residential
to commercial, with the concomitant change in the neighborhood’s traffic patterns, is
rationally related to several hazards which the city may lawfully regulate pursuant to its
police powers: protection of pedestrians and drivers, regulation of traffic congestion and
on-street parking, and reduction of air and noise pollution.” Id. at 491. Therefore,
relying on the principle that zoning decisions are committed, in the first instance, to the
judgment and discretion of the legislative body, the Ohio Supreme Court held that
keeping the residential classification was not “illegal, arbitrary, confiscatory,
unconstitutional, nor substantially unrelated to the public health, safety, morals, or
general welfare of the community.” Id. at 491.
51.
{¶ 76} We find that the present situation is more closely aligned to Lesley than
Mayfield-Dorsh for two reasons. First, unlike Mayfield-Dorsh, the prohibition on short-
term rentals in this case still results in a viable use of the property. In Mayfield-Dorsh,
the court recognized that the proposed use of the property for single-family homes was
not feasible because the homes would have to be located on a flood plain. Here, in
contrast, there is no such concern with the non-transient use of the homes. Second, like
Lesley, and unlike Mayfield-Dorsh, the residential character of the neighborhood has not
changed. The subject area has been zoned single-family residential since at least 1965,
and there are no gasoline service stations, shopping centers, or any other commercial
establishment within the vicinity other than Cedar Point. Ebner cites the noise, debris,
and influx of visitors from Cedar Point as reasons that his property should be allowed to
be used for transient rentals, but those influences existed to some extent long before the
properties within Chaussee were first zoned residential nearly six decades ago. Thus, the
present facts are similar to Lesley in that there is commercial activity on the boundaries of
the neighborhood, but the neighborhood itself is exclusively residential. Ebner’s
proposed use of his properties as short-term rental homes would increase the commercial
activity in the neighborhood, and would bring with it additional issues of late night noise
and partying, trespassing, trash and litter, and safety concerns. The City has a lawful
interest in regulating those concerns, and its prohibition on transient use of the property is
rationally related to addressing those concerns. Therefore, we hold that Ordinance No.
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12-107, as applied, is not clearly arbitrary or unreasonable, nor is it without substantial
relation to the public health, safety, morals, or general welfare of the community.
{¶ 77} Accordingly, we hold that Ordinance No. 12-107 is not unconstitutional.
C. Whether Enforcement of the Ordinances Violated Equal Protection
{¶ 78} In his third, and final, assignment of error, Ebner argues that the trial court
erred when it awarded summary judgment to the City on his claim that enforcement of
Ordinance Nos. 12-107 and 17-088 violated the Equal Protection Clause.
{¶ 79} The Fourteenth Amendment to the United States Constitution provides, in
part, “No State shall * * * deny to any person within its jurisdiction the equal protection
of the laws.” “[T]he purpose of the equal protection clause of the Fourteenth
Amendment is to secure every person within the State’s jurisdiction against intentional
and arbitrary discrimination, whether occasioned by express terms of a statute or by its
improper execution through duly constituted agents.” Village of Willowbrook v. Olech,
528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). Notably, “[t]he federal and
Ohio equal-protection provisions are ‘functionally equivalent’ * * * and ‘are to be
construed and analyzed identically.’” (Internal citations omitted.) Pickaway Cty. Skilled
Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d 944, ¶ 17.
{¶ 80} Instead of demonstrating membership in a protected class, Ebner is
proceeding as a “class of one.” “‘Class of one’ plaintiffs have a ‘heavy burden’ to ‘show
that they were treated differently than those similarly situated in all material respects,’
53.
and that ‘the adverse treatment they experienced was so unrelated to the achievement of
any combination of any legitimate purposes that the court can only conclude that the
government’s actions were irrational.’” City of Cincinnati v. Fourth National Realty,
LLC, 2017-Ohio-1523, 88 N.E.3d 1278, ¶ 16 (1st Dist.), quoting Loesel v. City of
Frankenmuth, 692 F.3d 452, 462 (6th Cir.2012). “The lack of a rational basis may be
demonstrated in one of two ways: ‘either by negativing every conceivable basis for the
government’s action or by demonstrating that the challenged actions were motivated by
animus or ill-will.’” Id., quoting Loesel at 462.
{¶ 81} Here, Ebner alleged in his complaint that the City attempted to enforce
Ordinance No. 12-107 on several occasions based upon complaints that the City received
from the Kinzels. On August 6, 2015, the City sent a notice informing Ebner that “if you
are found to be operating a transient rental that is not determined to be a legal non-
conforming use, Planning Staff will issue a violation notice and you will be required to
discontinue all transient rental at this location.” A second warning letter was sent on June
28, 2016, requesting that Ebner cease using the property for short-term rentals. On
September 2, 2016 and again on October 7, 2016, the City issued notices of violation to
Ebner based on the short-term rentals. Ebner alleged that the City has attempted to
formally enforce Ordinance No. 12-107 against him only, and that it has not issued
formal notices of violations to similarly situated property owners.
54.
{¶ 82} Ebner further alleged that shortly after Ordinance No. 17-088 was passed,
the City began aggressively enforcing the ordinance against him, again based upon the
persistent complaints by the Kinzels. Ebner stated that on August 30, 2017, August 31,
2017, and October 21, 2017, the city filed criminal complaints against him for transient
rental violations. Ebner alleged that he is the only individual who has received a criminal
citation, and that the City has not cited or criminally charged other property owners who
also engage in the transient rental of their homes.
{¶ 83} In moving for summary judgment, the City argued that Ebner was not
treated differently than others similarly situated. The City pointed to deposition
testimony that Ordinance No. 12-107 was also enforced against a different property
owner who was engaged in transient rentals of the home. As to the enforcement of
Ordinance No. 17-088, the City again cited deposition testimony that notices of transient
occupancy violations were sent to eleven other city residents.
{¶ 84} In opposition to the motion for summary judgment,10 Ebner argued that the
City was motivated by animus or ill will based upon Ebner’s prior successful lawsuit to
prevent the City from enforcing a vague and overbroad ordinance against short-term
renters on the Chaussee. Ebner also alleged that two of the City Commissioners
maintained ill will against Ebner after they were told that Ebner allegedly lied to Mr.
Kinzel about Ebner’s proposed use of his property. In addition, regarding the
10
Only the City, not Ebner, moved for summary judgment on Ebner’s equal protection
claim.
55.
enforcement of Ordinance No. 12-107, Ebner argued that he was treated differently
because the other property owner was only sent a letter of inquiry, whereas he was sent a
formal notice of violation. As to the enforcement of Ordinance No. 17-088, Ebner again
distinguishes between the criminal complaints that he received and the transient rental
notices that the other property owners received.
{¶ 85} In reply in support of its motion for summary judgment, the City argued
that the person who received the communication under Ordinance No. 12-107 was treated
differently because that person stopped renting the property. The City relied upon
Angela Byington’s testimony regarding that investigation: “I don’t know that they found
anything, but there was communication with the owner and they said they wouldn’t do it
anymore.” As to the enforcement of Ordinance No. 17-088, the City again noted that
notices of violation were sent to eleven other transient renters under that ordinance.
{¶ 86} Initially, the trial court denied the City’s motion for summary judgment,
succinctly stating:
The Ebner Defendants argue that their rights to Equal Protection
have been violated because they were victims of selective enforcement of
Ord. No. 12-077 (sic) and Ord. No. 17-088. The City points to evidence in
the record showing that the City has enforced or attempted to enforce Ord.
No. 12-077 (sic) and Ord. No. 17-088 against other persons. I find that
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there are genuine issues of material fact as to this claim if it is assumed that
the jurisdictional priority rule is inapplicable.
{¶ 87} Following our remand from the first appeal, the City moved for
reconsideration of its motion for summary judgment on the equal protection claim. The
City argued that summary judgment was appropriate because Ebner provided only
speculation, not evidence, that there were other similarly situated property owners that
the City did not enforce the zoning ordinances against. Furthermore, the City argued that
any difference in the enforcement of Ordinance No. 12-107 and Ordinance No. 17-088
was the result of Ebner continuing to use the properties as short-term rentals while the
other property owners stopped.
{¶ 88} Ebner opposed the motion for reconsideration, arguing that a genuine issue
of material fact existed regarding whether the City treated him differently out of malice
or ill will. In support, Ebner cited his prior successful lawsuit, as well as multiple emails
that he alleged showed the City Commissioners’ vindictiveness towards him based upon
the complaints of the Kinzels. In addition, Ebner highlighted that he was the only
property owner that suffered long-term investigations and the filing of criminal
complaints based upon the zoning ordinances. Ebner also noted that, as to Ordinance No.
17-088, he received a notice of violation shortly after the ordinance was passed, whereas
the other property owners did not receive their notices until November 2017, after the
summer rental season had ended.
57.
{¶ 89} Finally, in its reply in support of the motion for reconsideration, the City
argued that Ebner did not demonstrate that the City’s actions were motivated by
“personal malice unrelated to the defendant’s official duties.” Taylor Acquisitions, L.L.C.
v. City of Taylor, 313 Fed.Appx. 826, 837-838 (6th Cir.2009). The City contended that
all of the City Commissioners’ actions were taken in pursuit of their official duty to
enforce the zoning regulations.
{¶ 90} Upon our de novo review, we hold that the trial court did not err in
awarding summary judgment to the City because Ebner has not demonstrated a genuine
issue of material fact that he was treated differently from others similarly situated.
“[T]he ‘similarly situated’ requirement must be rigorously applied in the context of ‘class
of one’ claims.” Leib v. Hillsborough Cty. Public Transp. Comm., 558 F.3d 1301, 1307
(11th Cir.2009). Rigorous application is necessary because “unless carefully
circumscribed, the concept of a class-of-one equal protection claim could effectively
provide a federal cause of action for review of almost every executive and administrative
decision made by state actors.” Jennings v. City of Stillwater, 383 F.3d 1199, 1211 (10th
Cir.2004).
{¶ 91} In this case, by citing to the deposition testimony that the ordinances were
enforced against other property owners, the City met its initial burden of demonstrating
the absence of a genuine issue of material fact that Ebner was treated differently. The
burden then shifted to Ebner “to set forth specific facts showing that there is a genuine
58.
issue for trial.” Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996), citing
Civ.R. 56(E). Ebner failed to meet this burden. Ebner did not identify or provide any
evidence of other individuals that were engaged in the transient rental of their properties,
but against whom the City did not enforce its zoning ordinances; Ebner only speculated
that such individuals existed. Furthermore, Ebner’s attempt to emphasize that he was the
only property owner who received formal notices of violations or criminal charges fails
to demonstrate that he was treated differently than other similarly situated property
owners. The evidence shows that upon receiving inquiries or notices, the other property
owners stopped renting their properties. Unlike those other property owners, Ebner
persisted in his short-term rental of the properties. Thus, Ebner is not “similarly situated”
with the other property owners. Therefore, because Ebner has not met his reciprocal
burden to demonstrate a genuine issue of material fact that he was treated differently than
other similarly situated property owners, we hold that summary judgment in favor of the
City on Ebner’s equal protection claim is appropriate.
{¶ 92} Accordingly, Ebner’s third assignment of error is not well-taken.
IV. Conclusion
{¶ 93} We hold that Ordinance No. 12-107 was validly enacted and is not
unconstitutional. Accordingly, Ebner’s first assignment of error is not well-taken.
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{¶ 94} We hold that Ordinance No. 17-088 was not validly enacted, and thus we
do not reach whether it is unconstitutional. Accordingly, Ebner’s second assignment of
error is well-taken.
{¶ 95} Finally, we hold that summary judgment in favor of the City on Ebner’s
equal protection claim is appropriate. Accordingly, Ebner’s third assignment of error is
not well-taken.
{¶ 96} For the foregoing reasons, we find that substantial justice has not been done
the party complaining, and the judgment of the Erie County Court of Common Pleas is
affirmed, in part, and reversed, in part. This matter is remanded to the trial court for
further proceedings consistent with this decision. The parties are ordered to split evenly
the costs of this appeal pursuant to App.R. 24.
Affirmed, in part,
and reversed, in part,
and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
____________________________
JUDGE
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This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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