Ebner v. SanduskyEbner v. Sandusky
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OSOWIK, J.
{¶ 1} This is an administrative appeal from a judgment of the Erie County Court of Common Pleas, in which the trial court found that the term “non-transient,” as used in
{¶ 2} The underlying facts in this case are not in dispute. Douglas, Julia and Mark Ebnеr, Joseph Viviano, MEM Properties, and Douglas and Cynthia Epler, all appellees in this consolidated appeal, are owners of single-family homes near Cedar Point Amusement Park, in an area known locally as the “Chaussee.” On August 4, 2011, apрellees were served with cease and desist orders in which they were told to stop renting their properties on the Chaussee, which is zoned R1-75, “on a transient basis,” in violation of Sandusky Municipal Code (“SMC“) 1129.03, which states that only “one-family dwellings” are allоwed in areas zoned R1-75. Further, pursuant to
{¶ 3} Appellees challenged the BZA‘s denials in the Erie County Court of Common Pleas, which consolidated all of the cases into one appeal. On August 21, 2012, after reviewing the entire administrative record, which included testimony madе before the BZA on October 20, 2011, and December 15, 2011, the trial court issued a judgment entry in which it found that the term “non-transient,” as used in
{¶ 4} The trial court also found that the homes rented out by appellees were undisputedly designed as single-family dwellings, therefore, the use of the connector word “or” in
This Court is cognizant of the fact that the residents of the Chaussee do not want their neighbors to change on a weekly, bi-weеkly, or monthly basis. The Sandusky Zoning Board is permitted to enact zoning ordinances that prevent short-term uses of the properties in particular zoning sections.
However, the definition of a “Dwelling” in [SMC] 1107.01(g)(2) as one of the permitted uses in a R1-75 zone pursuant tо [SMC] 1129.03 of the code does not sufficiently prescribe what conduct is allowed of the property owners in questions and therefore fails to provide fair notice. Even in indulging in every reasonable interpretation of the ordinance, the Cоurt cannot find the Sandusky Municipal Zoning Ordinance in question to be constitutional. Pursuant to the foregoing analysis, and having considered the competent, credible evidence, the Court finds that the Sandusky Board of Zoning Appeals’ decision [was] unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. Specifically, the court finds [SMC] 1107.01(g)(2) void for vagueness and in violation of the Due Process Clauses of the United Stated States and Ohio Constitutions.
{¶ 5} Appellant, the city of Sandusky, filed an appeal in this court on September 18, 2012, in which it set forth the following three assignments of error:
I. The trial court erred when it held that the definition of dwelling pursuant to 1107.01(g)(2) is unconstitutional under the void for vagueness doctrine for its inability to provide property owners fair notice of what uses are permitted in the R1075 district pursuant to 1129.03 of the code.
II. The trial court erred in finding that the Sandusky Municipal Ordinance is a taking.
III. The trial court errеd by blatantly substituting its judgment for the board‘s judgment when the trial court must give deference to the board unless the decision was unreasonable and unsupported by the evidence.
{¶ 6} We note initially that, pursuant to
{¶ 7} The issue presented in appellant‘s first assignment of error, i.e., whether the term “non-transient,” as used in
{¶ 8} In Ross, we considered the issue of whether the term “transient,” as used in Toledo Municipal Code (“TMC“) Section 1167.01, was unconstitutionally vague. In our analysis, we looked to the dictionary definition of the term whiсh is defined in Merriam-Webster‘s Collegiate Dictionary, as “1 a: passing esp. quickly into and out of existence * * * b: passing through or by a place with only a brief stay or sojourn * * *.” Id. We subsequently determined that “[i]t would be impossible for a person of common intеlligence to be able to determine what conduct is prohibited [by TMC 1167.01], insofar as every person‘s interpretation of the meaning of ‘transient * * *’ could vary so greatly.” Id. In addition, we found that the use of such a subjective term would allow “arbitrary and discriminаtory application and enforcement” of the ordinance. Accordingly, we found that the law was unconstitutionally vague, violated both the United States Constitution and the Ohio Constitution and was, therefore, void. Id.
{¶ 9} In its first assignment of error, appellаnt asserts that our decision in Ross, although correct in that case, does not control the outcome in this instance. In support appellant argues that, while use of the statutorily undefined term “transient” may render an ordinance void for vaguenеss, use of the similarly undefined term “non-transient” in
{¶ 10} As to aрpellant‘s first argument, no authority is cited to support the assertion that “non-transient” always means “permanent.” Appellant correctly states that true antonyms may have definable meanings that are independent of the terms which they oрpose. One example of this would be the words “good” and “bad.” However, in this case, the term “non-transient” was created by using a negative prefix, “non,” to modify a descriptive word, “transient.” As stated in Ross, the failure to statutorily define the term “transient” rendеrs a city ordinance capable of being arbitrarily enforced and, therefore, it is void for vagueness. Id. It follows, then, that
{¶ 11} As to appellant‘s second argument,
{¶ 12} On consideration of the foregoing we find that, while appellant may have had the goal of providing a quiet, stable residential neighborhood on the Chaussee when it enacted
{¶ 13} In its second assignment of error, appellant asserts that the trial court erred when it ovеrturned the BZA‘s decision and found that the Sandusky Municipal Zoning Ordinance effects an unconstitutional taking. In support, appellant argues that the ordinance does not constitute a taking because: (1) it advances a legitimate interest “in prоtecting and preserving the permanency of residential neighborhoods, protecting property values, and ensuring comfort and safety for the residents” and (2) the BZA made a “reasonable decision” based on guidance provided by the оrdinance as to “what conduct was prohibited, not what conduct was permitted.” Accordingly, even though the ordinance is admittedly restrictive, it provides fair notice of the prohibited conduct and, therefore, is not unconstitutional.
{¶ 15} In its third assignment of error, appellant asserts that the trial court erred by “blatantly” and illegally substituting its own judgment in place of the BZA‘s judgment. In support, appellant argues that the BZA correctly distinguished the term “transient” from “non-transient” and thereafter disregarded the precedent of this court as set forth in Ross, supra.
{¶ 16} For the reasons set forth in our determination as to appellant‘s first assignment of error, we find that our decision in Ross establishes precedent that is dirеctly applicable, and determinative of the outcome, in this case. Accordingly, appellant‘s third assignment of error is not well-taken.
{¶ 17} The judgment of the Erie County Court of Common Pleas is hereby affirmed. Pursuant to
Judgment affirmed.
Arlene Singer, P.J. JUDGE
Thomas J. Osowik, J. JUDGE
Stephen A. Yarbrough, J. JUDGE
CONCUR.
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.sconet.state.oh.us/rod/newpdf/?source=6.