Voorhees v. Anderson Twp. Bd. of Zoning Appeals , 2024 Ohio 4459 ( 2024 )

[Cite as Voorhees v. Anderson Twp. Bd. of Zoning Appeals, 2024-Ohio-4459.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
MICHAEL R. VORHEES, : APPEAL NO. C-240095
TRIAL NO. A-2300758
Plaintiff-Appellant, :
O P I N I O N.
vs.
:
ANDERSON TOWNSHIP
BOARD OF ZONING :
APPEALS,
:
and
ANDERSON TOWNSHIP, :
Defendants-Appellees. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 11, 2024
Vorhees & Levy, LLC, and Michael R. Vorhees, for Plaintiff-Appellant,
Law Offices of Gary E. Powell and Gary E. Powell, for Defendants-Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Presiding Judge.
{¶1} Plaintiff-appellant Michael R. Vorhees challenges the trial court’s
judgment upholding defendants-appellees Anderson Township Board of Zoning
Appeals (“BZA”) and Anderson Township’s enforcement of certain portions of the
Anderson Township Zoning Resolution (“ATZR”) that regulate his fence on his corner-
lot property.
{¶2} First, Vorhees claims that the common pleas court erred when it
dismissed the counts in his complaint seeking a declaratory judgment that the ATZR
is facially unconstitutional. But long-standing precedent prohibits facial challenges to
zoning ordinances’ constitutionality in administrative appeals. Second, Vorhees
maintains that the common pleas court erred when it affirmed the BZA’s decision,
which found that the placement of Vorhees’s newly-erected privacy fence violated the
ATZR. We hold that the common pleas court did not err as a matter of law when it
affirmed the BZA’s decision, and Vorhees has not shown that its decision is
“unsupported by the preponderance of the evidence.” We affirm the common pleas
court’s judgment.
I. Facts and Procedure
{¶3} Vorhees owns real property on the corner of two intersecting streets
(“Street A” and “Street B”) in Anderson Township’s “B” Residential District. To
alleviate ongoing tensions with neighbors, Vorhees hired a local fence company to
build a privacy fence between his property and his neighbors’ property. Relying on
assurances from the fence company, Vorhees believed that a zoning certificate was
unnecessary and erected this fence in November 2022:
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{¶4} Weeks later, Vorhees received a letter from an Anderson Township
planner notifying him that his “newly constructed 6ft tall privacy fence” was “located
in the side yard of the property” and therefore his “property is in violation of Article
2.1 and Article 5.2.A.9 of the [ATZR].” In Anderson Township’s “B” Residential
District, a six-foot fence can be built in the “rear yard,” while front and side-yard fences
must be “more than seventy-five (75) percent open and not exceeding four (4) feet in
height . . . provided they are not in the public right of way.” ATZR Article 5.2.A.9.
{¶5} In response, Vorhees emailed the planner and asked him to rescind the
noncompliance letter. The planner replied and explained that because Vorhees’s “lot
is a corner lot, both street frontages are considered a front yard area and a solid fence
is not permitted in this area.” The planner told Vorhees how to apply for a zoning
certificate or, alternatively, a zoning variance.
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Vorhees’s administrative appeal
{¶6} Vorhees filed an administrative appeal to the BZA and asked it to
reverse the planner’s interpretation of the ATZR and his noncompliance
determination. That same day, Vorhees granted permission to Anderson Township
employees and members of the BZA to inspect the premises.
{¶7} The hearing began with an Anderson Township planner’s account of the
case history, which started with a “complaint indicating a possible zoning violation of
a 6’ tall privacy fence.” Then, “staff confirmed the violation while performing an
inspection of the property.”
{¶8} The planner displayed an aerial map of Vorhees’s property:
{¶9} The planner explained that, under “Article 5.2(A)(9) . . . six-foot-high
privacy fences are only permitted in the rear yard. And four-foot-high, 75-percent-
open fences are permitted in the front and side yards.” But because Vorhees’s property
sits on a corner lot, it “has frontage on” two streets.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} The planner explained that the Anderson Township Zoning Department
“believe[s] [the fence] partially goes into the right-of-way:”
{¶11} Another map produced by the Zoning Department staff illustrated the
zoning violation. The following “red line is the allowable location of the six-foot fence”
and the dots “are the approximate current location of the six-foot high privacy fence:”
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These were approximations “based on [the staff’s] site visit and the aerials” because
the Zoning Department “never . . . actually received a site plan.” The Zoning Director
explained to the BZA that “the rear yard of the property” falls within “the area . . . in
the red lines.”
{¶12} In support of his appeal, Vorhees identified two errors by the Zoning
Department. The first was “the dots.” He contended that the dots “start[] in the streets”
and “[t]hat’s not where the fence is. The fence is off the street, off the sidewalk.” The
second error was “the interpretation of a – of a rear – front and rear.” A member of
the BZA pointed out that “[t]he dots don’t show it going into the road, they show it
coming up just past the edge of the sidewalk,” but Vorhees responded, “that’s
incorrect.” Rather, it is “close to the sidewalk.” Vorhees explained that, as an attorney,
he does “know how to read statutes and resolutions” and “these definitions and
they’re–they do get convoluted.” Vorhees did not “think there’s any question . . .
common-sense-wise” that the fence was in the backyard.
{¶13} Two neighbors testified in support of the Zoning Department’s decision.
The first explained that Vorhees installed “a six-foot-high privacy fence” that
“extend[s] into the [Street B] public right-of-way.” She testified that the “fence is an
eyesore and decreases the value of my property.” She hired a land planner, who
testified that the “fence is partially into the public right-of-way, and Staff is correct in
asserting that.” And the land planner testified that “the fence is wholly within the front
yard portion of the subject property.”
{¶14} The second neighbor told the BZA that “this fence is actually a safety
hazard. You have to walk up to it and kind of look around it. We have a lot of deer and
other animals that cross through that area.” She explained that a nearby property sits
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OHIO FIRST DISTRICT COURT OF APPEALS
on a corner lot and is in “a very similar situation.” They constructed a fence that
“abides by the zoning resolution” and “is only in their backyard private area.”
{¶15} The BZA rejected Vorhees’s appeal and affirmed the Zoning
Department’s interpretation of the code and finding of a violation.
Vorhees appealed the BZA’s decision
{¶16} Vorhees filed a three-count complaint in the Hamilton County Court of
Common Pleas, naming the BZA and Anderson Township as defendants. He styled his
first count as an administrative appeal under R.C. 2506.01 and claimed that the BZA’s
decision was “unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of the evidence on the whole record” and violated
his state and federal due-process and equal-protection rights. He styled his second and
third counts as requests for declaratory relief under R.C. 2721.03 and alleged that the
“failures of the ZBA” constituted violations of his due-process and equal-protection
rights under the state and federal constitutions.
{¶17} Anderson Township and the BZA moved to dismiss the second and third
counts, arguing that in an administrative appeal, the common pleas court lacked
jurisdiction to consider his request for declaratory judgment that the ATZR is facially
unconstitutional.
{¶18} Vorhees disagreed and clarified that the second and third counts raise
questions of “whether or not the zoning ordinances are even legal. Not just as the
ordinances were applied to Plaintiff, but as the ordinances are generally applied to any
and all residents of Anderson Township.” He stressed that his “arguments are more
than ‘as applied.’” His claims were challenges to “the overall constitutionality of the
zoning ordinances and procedures of Anderson Township.” On the merits, Vorhees
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OHIO FIRST DISTRICT COURT OF APPEALS
claimed that the zoning ordinances were unconstitutionally vague and violated his
due-process and equal-protection rights.
{¶19} The common pleas court issued two orders. First, it dismissed Vorhees’s
second and third counts seeking declaratory relief because the Supreme Court of Ohio
has held that “a request for declaratory judgment must be filed in a separate R.C. 2721
action and cannot be combined with an administrative appeal.” See Community
Concerned Citizens, Inc. v. Union Twp. Bd. of Zoning Appeals, 66 Ohio St.3d 452, 454
(1993). In its other order, the common pleas court affirmed the BZA’s interpretation
of the ATZR and entered judgment for Anderson Township.
II. Law and Analysis
A. Facial constitutional challenges are improper in an administrative appeal
{¶20} Vorhees argues that the common pleas court wrongfully dismissed his
request for a declaratory judgment in the second and third counts of his complaint.
The crux of Vorhees’s argument is that the common pleas court should have
considered, in his administrative appeal from the BZA, his request for a declaratory
judgment that the ATZR is facially unconstitutional. But that argument contradicts
long-standing precedent in Ohio.
{¶21} R.C. 2506.01, which governs appeals from administrative officers and
agencies, provides “every final order, adjudication, or decision of any officer, tribunal,
authority, board, bureau, commission, department, or other division of any political
subdivision of the state may be reviewed by the court of common pleas of the county
in which the principal office of the political subdivision is located.” R.C. 2506.01(A).
In administrative appeals, common pleas courts perform an appellate task. AT&T
Communications of Ohio, Inc. v. Lynch, 2012-Ohio-1975, ¶ 15.
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{¶22} A common pleas court may reverse, vacate, or modify a board of zoning
appeals’ order if the court finds that the order “is unconstitutional, illegal, arbitrary,
capricious, or unsupported by the preponderance of substantial, reliable, and
probative evidence on the whole record.” R.C. 2506.04. Common pleas courts’ review
is confined to the transcript unless a statutory exception applies. R.C. 2506.03(A).
{¶23} While common pleas courts’ review is limited, the interest of judicial
economy warrants consideration of an “‘as applied’ challenge . . . on appeal through
R.C. 2506.” Steiner v. Morrison, 2016-Ohio-4798, ¶ 9 (7th Dist.); see Fulton v. Bd. of
Zoning Appeals, 2017-Ohio-971, ¶ 8 (8th Dist.); see also Cappas & Karas Invest., Inc.
v. City of Cleveland, Bd. of Zoning Appeals, 2005-Ohio-2735, ¶ 12 (8th Dist.). The
nature of an as-applied challenge lends itself to review in an administrative appeal
because it asserts that the application of an ordinance or statute is unconstitutional
under the particular circumstances presented in the dispute. Yajnik v. Akron Dept. of
Health, Hous. Div., 2004-Ohio-357, ¶ 14.
{¶24} The Supreme Court of Ohio has explained that administrative appeals
are appropriate vehicles for determining “whether the prohibition against the specific
proposed use has any reasonable relationship to the legitimate exercise of police power
by the municipality.” Id. Whether a zoning ordinance is constitutional as applied to
the facts of the case turns on the owner’s specific proposed use of the property. Id. In
such an as-applied challenge, common pleas courts do not objectively determine
whether a zoning ordinance is constitutional. Karches v. City of Cincinnati, 38 Ohio
St.3d 12, 16 (1988).
{¶25} The same cannot be said for raising facial challenges in an
administrative appeal. Specifically, “‘[a] facial constitutional challenge to a zoning
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ordinance is improper in the context of an administrative appeal.’” Fulton at ¶ 8,
quoting Cappas & Karas at ¶ 12; see Karches at paragraph one of the syllabus; see also
Kreinest v. Planning Comm. of Maineville, 2015-Ohio-1178, ¶ 25 (12th Dist.)
(explaining that a “facial attack on the constitutionality of the ordinance is not within
the scope of an R.C. Chapter 2506 appeal”); Blue Stone Sand & Gravel v. Mantua Twp.
Zoning Bd. of Appeals, 127 Ohio App.3d 37, 44 (11th Dist. 1998) (“the court was not
permitted to invalidate the resolution or any of its provisions on its face in an appeal
from a decision of the BZA denying a permit application. A resolution can only be
attacked on its face in a declaratory judgment action.”).
{¶26} Rather, a party must launch a facial challenge to an ordinance’s
constitutionality by bringing a separate declaratory-judgment action. Cappas &
Karas, 2005-Ohio-2735, at ¶ 12 (8th Dist.). The Supreme Court of Ohio has repeatedly
held that a “‘declaratory judgment action is independent from the administrative
proceedings; it is not a review of the final administrative order.’” Community
Concerned Citizens, 66 Ohio St.3d at 453, quoting Driscoll v. Austintown Assoc., 42
Ohio St.2d 263, 271 (1975).
{¶27} In Community Concerned Citizens, the Supreme Court of Ohio
considered the propriety of a request for a declaratory judgment in an administrative
appeal in what it described as a “hybrid constitutional challenge.” Id. at 454. The Court
held that the declaratory-judgment request could not be combined with the
administrative appeal. Id. Moreover, the Court held that “to request a declaratory
judgment appellant was required to file a separate R.C. 2721 action.” (Emphasis in
original). Id.
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{¶28} Vorhees is correct that Community Concerned Citizens addressed an
administrative appeal of a denial of a variance. See id. at 453. Vorhees argues that,
because he is not appealing the denial of a variance, Community Concerned Citizens
is distinguishable and does not control the outcome of this case. But nothing in
Community Concerned Citizens suggests that the Supreme Court of Ohio limited its
holding involving hybrid constitutional challenges to variance denials. And no other
Ohio court has interpreted Community Concerned Citizens as narrowly as Vorhees
proposes.
{¶29} The holding in Community Concerned Citizens has been applied to
administrative appeals filed by government employees challenging their dismissal. See
Garrett v. City of Columbus, 2010-Ohio-3895, ¶ 24 (10th Dist.) (“an administrative
appeal and a complaint are procedurally incompatible”); see also Pullin v. Village of
Hiram, 2003-Ohio-1973, ¶ 28 (11th Dist.) (“combining a claim for declaratory and/or
injunctive relief in a R.C. 737.19(B) appeal is impermissible”). It has also been applied
to administrative appeals of property value decisions. See Holm v. Clark Cty. Aud.,
2006-Ohio-3748, ¶ 3 (2d Dist.). And it prevented a party from seeking an injunction
in an administrative appeal of a decision finding that a farmer’s exotic animal farm
was a nuisance. See Summit Cty. Bd. of Health v. Pearson, 2005-Ohio-2964, ¶ 8 (9th
Dist.) (“[an] injunction order is beyond the scope of the jurisdiction granted to the
court of common pleas under R.C. 2506”).
{¶30} The proper mechanism to challenge the constitutionality of the ATZR
on its face is a separate declaratory-judgment action. The common pleas court
appropriately dismissed Vorhees’s counts that raised these facial challenges. We
overrule Vorhees’s first assignment of error.
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B. The common pleas court did not err by affirming the BZA
{¶31} Vorhees also argues that the common pleas court abused its discretion
when it affirmed the BZA’s decision. First, he maintains that Anderson Township
failed to satisfy its burden of proof. Second, he claims that the common pleas court
failed to consider his constitutional arguments.
{¶32} When a property owner files an administrative appeal of an
administrative board’s decision, the “decision is ‘presumed to be valid, and the burden
is upon the party contesting the board’s determination to prove otherwise.’” Village of
Terrace Park v. Anderson Twp. Bd. of Zoning Appeals, 2015-Ohio-4602 ¶ 13 (1st
Dist.), quoting Klein v. Hamilton Cty. Bd. of Zoning Appeals, 128 Ohio App.3d 632,
636 (1st Dist. 1998). The common pleas court may reverse, vacate, or modify the BZA’s
order if that order is “unconstitutional, illegal, arbitrary, capricious, unreasonable, or
unsupported by the preponderance of substantial, reliable, and probative evidence on
the whole record.” R.C. 2506.04. A common pleas court may only substitute its
judgment for that of a board of zoning appeals if there is “not a preponderance of
reliable, probative and substantial evidence to support the board’s decision.”
Cleveland Clinic Found. v. Bd. of Zoning Appeals, 2014-Ohio-4809, ¶ 23, quoting Kisil
v. Sandusky, 12 Ohio St.3d 30, 34, (1984).
{¶33} While a common pleas court’s review of a zoning board’s decision
“resembles a de novo proceeding” because it reviews the record, weighs the evidence,
and determines whether the board’s decision is supported by the preponderance of the
evidence, it must “give due deference to the administrative agency’s resolution of
evidentiary conflicts and not blatantly substitute its judgment for that of the agency.”
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Athenry Shoppers, Ltd. v. Planning & Zoning Comm. of Dublin, 2009-Ohio-2230,
¶ 16-17 (10th Dist.).
{¶34} Our review is narrower and limited to questions of law. See Cook v.
Village of Lockland, 2024-Ohio-9, ¶ 21 (1st Dist.). We must determine whether the
common pleas court erroneously applied or interpreted the law, or whether its
decision was “‘unsupported by the preponderance of the evidence’” as a matter of law.
Id., quoting Terrace Park at ¶ 14. By limiting our review to questions of law, the statute
prevents us from “‘weigh[ing] the preponderance of substantial, reliable[,] and
probative evidence.’” Terrace Park at ¶ 14. And “[t]he law strongly favors affirming a
trial court’s decision in a R.C. Chapter 2506 appeal.” Mt. Carmel Farms, LLC v.
Anderson Twp. Bd. of Zoning Appeals, 2024-Ohio-2879, ¶ 20 (1st Dist.).
1. The lower court’s decision is not “unsupported by the evidence”
{¶35} Vorhees maintains that the BZA found that his fence was out of
compliance with the relevant zoning ordinances “without any actual measurements of
the location, of the fence, or of the property lines.” So, he continues, the BZA’s
determination was based on mere “[a]pproximations and guesses.” But Vorhees
cannot show that the common pleas court’s decision is “unsupported by the
preponderance of the evidence” as a matter of law. Despite Vorhees’s claims, there was
probative and reliable evidence of a zoning violation.
{¶36} The BZA determined that Vorhees installed the six-foot privacy fence
without a permit in the front yard of his corner-lot property, which violated portions
of the ATZR. And the common pleas court found that the BZA’s decision was
constitutional, legal, reasonable, and not “unsupported by the preponderance of the
evidence.”
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{¶37} Specifically, the common pleas court cited portions of the record to find
that Vorhees did, in fact, erect a six-foot fence in the front yard of his property. It
explained that “the front yard depth is a minimum of 35 feet from the front line along
each street to the nearest portion of the house, and no structures are permitted in the
front yard.”
{¶38} While the record does not contain precise measurements of the fence’s
height, a zoning planner read the township’s staff report at the BZA hearing. The
report stated that a complaint alleged that Vorhees had erected a six-foot fence and
staff “confirmed the violation while performing an inspection of the property.”
{¶39} Vorhees appears to believe the BZA and common pleas court found that
the fence extended into the street. Not so. The BZA and common pleas court found
that his fence extended to his property line, not the street. Significantly, the staff
produced aerial maps of Vorhees’s property without boundary lines and images that
show the fence extending into the front-yard setback that adjoins Street B. And there
was nothing in the BZA hearing controverting this evidence. While Vorhees argues
that the staff’s evidence lacked credibility, our review prevents us from weighing the
evidence. See Mt. Carmel Farms, 2024-Ohio-2879, at ¶ 17 (1st Dist.). In sum, the
common pleas court’s decision to affirm the BZA is not “unsupported by the
preponderance of the evidence as a matter of law.” See R.C. 2506.04.
2. The common pleas court did not err when it affirmed the BZA’s
interpretation of the ATZR
{¶40} Vorhees also claims that the BZA and common pleas court
misinterpreted the ATZR. First, Vorhees challenges the common pleas court’s
affirmation of the BZA’s interpretation of the ATZR. Specifically, he argues that the
zoning regulations are “ambiguous and confusing.” He asserts that the fence-
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installation company correctly interpreted the ATZR in contrast to the BZA, which
failed to “apply clear meaning to the definitions in the zoning regulations,” “failed to
give the words in [the] zoning regulations the meaning commonly attributed to them,”
and interpreted the ATZR in a way that defies logic and serves no purpose.
{¶41} We begin with the basic principle that “zoning ordinances are to be
construed in favor of the property owner because they are in derogation of the
common law and deprive the property owner of uses to which the owner would
otherwise be entitled.” Cleveland Clinic Found., 2014-Ohio-4809, at ¶ 34. Courts
should strictly construe zoning regulations that restrict the use of private property and
cannot extend the restrictions beyond what is “clearly prescribed.” Id. Zoning boards
and courts must be careful to avoid zoning property “‘by implication.’” Id., quoting
Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 152 (2000). And as
a general rule of statutory interpretation, the meaning of a zoning ordinance “should
be derived from a reading of the provision taken in the context of the entire ordinance.”
Id., quoting Henly at 152.
{¶42} According to Vorhees, the BZA’s and common pleas court’s
interpretations “make no sense” because under their construction of the ATZR, “a
corner lot does not have a rear property.” But Vorhees is attempting to create
ambiguity where there is none. The ATZR’s regulation of a corner lot does not
eliminate a rear yard.
{¶43} Relevant here, the ATZR explains that a “lot” in Anderson Township is
“[a] parcel of land . . . having its principal frontage upon a street or place.” ATZR Article
6.1.Lot. Frontage is the part of a “property on one side of a street between two
intersecting streets (crossing or terminating) measured along the line of the street.”
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ATZR Article 6.1.Frontage. It explains that front yards are measured by “the minimum
horizontal distance between the street line and the main building.” ATZR Article
6.1.Yard.a. The code explains that a corner lot is “[a] lot abutting upon two (2) or more
streets at their intersection.” ATZR Article 6.1.Lot.Corner. According to the ATZR, a
“rear yard” is the “yard extending across the rear of the lot between the side lot lines.”
ATZR Article.6.1.Yard.c. But a rear yard on a corner lot is “generally considered to be
parallel to the street upon which the lot has its least dimension.” Id.{¶44} In Anderson Township’s “B” Residence District, “[t]here shall be a front
yard having a depth of not less than thirty-five (35) feet.” ATZR Article 3.5.C.2.a.
Corner properties like Vorhees’s that are “located at the intersection of two or more
streets” have “a front yard on each side of a corner lot.” ATZR Article 3.5.C.2.a.ii. This
is significant because in the “B” Residence District, fences may “not exceed[] six (6)
feet in height in the rear yard” and must be “more than seventy-five (75) percent open
and not exceeding four (4) feet in height in front and side yards.” ATZR Article 5.2.A.9.
{¶45} In other words, a corner lot has two front yards, each front yard faces
one of the two intersecting streets, and the rear yard runs parallel to the shorter street
and extends to the front setback on the longer street. To illustrate this concept, the
ATZR includes this diagram:
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As such, Vorhees’s rear yard extends from the side setback across the house’s rear to
the front setback. Contrary to Vorhees’s assertions, the ATZR’s regulation of corner
lots eliminates one side yard, not the rear yard.
3. Vorhees has not shown that the ATZR is unconstitutional
{¶46} Vorhees argues that the ATZR’s regulation of corner lots lacks a
“substantial relation to the public health, safety, morals, or general welfare of the
community.”
{¶47} As Vorhees recognizes, zoning ordinances are presumptively valid and
constitutional. Hudson v. Albrecht, Inc., 9 Ohio St.3d 69, 71 (1984). To overcome this
presumption, Vorhees has the burden of demonstrating the ATZR’s
unconstitutionality. Id. Vorhees’s right to “use and enjoy his private property is not
unbridled but is subject to the legitimate exercise of local police powers.” Id. at 72. The
ATZR is a legitimate exercise of Anderson Township’s police power if it bears a
substantial relationship to the promotion of “public health, safety and general
welfare.” Id. We have explained that “[t]he nature of the police power is elastic.” Platt
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OHIO FIRST DISTRICT COURT OF APPEALS
v. Bd. of Bldg. Appeals of Cincinnati, 2011-Ohio-2776, ¶ 13 (1st Dist.). Indeed, this is
“‘one of the least limitable of government powers, and its operation often cuts down
on property rights.’” Id., quoting Gross v. City of Strongsville, 1980 Ohio App. LEXIS
13758, *6 (8th Dist. Jan. 25, 1980), quoting Queenside Hills Realty Co. v. Saxl, 328
U.S. 80, 83 (1946).
{¶48} While Vorhees argues that the ATZR’s regulation of fences and corner
lots bears no relationship to the safety and welfare of the general public, he fails to
appreciate the testimony of his neighbor at the BZA hearing. Specifically, she testified
that the fence impedes pedestrians’ and drivers’ sight lines. This presents a safety
issue, his neighbor explained, because the fence effectively creates a blind spot for
pedestrians and drivers in an area with significant wildlife traffic.
{¶49} Undeterred, Vorhees argues in broad terms that his constitutional
rights were violated by the Anderson Township staff. He maintains that the common
pleas court failed to consider these arguments. But the common pleas court did
address these claims—it simply found that he failed to demonstrate how the
application of the ATZR to his property violated his constitutional rights.
{¶50} Vorhees states that the application of the ATZR violated his right to the
equal protection of law under the Fourteenth Amendment to the United States
Constitution. But critically, Vorhees “alludes to, but does not develop, [this]
argument.” See Mason City School Dist. Bd. of Edn. v. Warren Cty. Bd. of Revision,
2014-Ohio-104, ¶ 38. Specifically, he fails to identify both the elements of his equal-
protection claim and the level of scrutiny that we must apply to the alleged
constitutional violation. His claim is perfunctory, underdeveloped, and lacks any
principled analysis. And “appellate court[s] will not create an argument in support of
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an assignment of error where an appellant fails to develop one.” Fontain v. Sandhu,
2021-Ohio-2750, ¶ 15 (1st Dist.). We decline to consider his equal-protection claim.
{¶51} Vorhees also argues that the ATZR is unconstitutionally vague. An as-
applied void-for-vagueness challenge is “‘inherently deficient in a zoning case where
the zoning resolution, by its very nature, puts a property owner on notice that use of
the property is subject to regulation.’” Engel v. Crosby Twp. Bd. of Zoning Appeals,
2009-Ohio-240, ¶ 9 (1st Dist.), quoting Franchise Developers, Inc. v. Cincinnati, 30
Ohio St.3d 28 (1987). When a party asserts that an ordinance is unconstitutionally
vague, we resolve all doubts in favor of the ordinance being constitutional. See City of
Blue Ash v. Price, 2018-Ohio-1062, ¶ 16 (1st Dist.).
{¶52} A zoning regulation must permit a person of common intelligence to
determine what conduct is prohibited and provide standards sufficient “‘to prevent
arbitrary and discriminatory enforcement.’” Id., quoting State v. Williams, 88 Ohio
St.3d 513, 532 (2000). A legislative enactment is not void for vagueness simply
because its language may have been more precise. Id., quoting State v. Dorso, 4 Ohio
St.3d 60 (1983). And every word in an ordinance need not be defined because courts
may give undefined words their common, everyday meanings. Id.{¶53} Like the common pleas court, we hold that Vorhees has not
demonstrated how the ATZR fails to put a property owner on notice that the property
is subject to the corner-lot and fence regulations. He simply states, in a conclusory
manner, that “[t]he zoning resolutions do not provide fair warning to an ordinary
citizen of what conduct is proscribed.” The ATZR unambiguously regulates fences in a
corner lot, and Vorhees has failed to carry his burden on appeal.
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{¶54} Because Vorhees has not demonstrated that the court of common pleas
erred as a matter of law when it affirmed the BZA’s decision, we overrule his second
assignment of error.
III. Conclusion
{¶55} We overrule Vorhees’s two assignments of error and affirm the common
pleas court’s judgment.
Judgment affirmed.
CROUSE and KINSLEY, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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