Daily Development for Friday, August 29, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

ZONING AND LAND USE; CONSTITUTIONAL LAW; VAGUENESS: Zoning ordinance that prohibited certain uses of property in heavy industrial district was not unconstitutionally vague.

Engel v. Crosby Twp. Bd. Of Zoning Appeals, 907 N.E.2d 344, (Ohio App. 1 Dist. 2009).

Tonya Engel owned 162 acres of land in an area zoned "G-Heavy Industrial District." In April 2007, Steve Engel, Tonya's husband, applied to the Crosby Township Zoning Inspector, for a zoning certificate. According to the application, Engel sought to develop a motorsports park on the land.

After the Engel responded to the Inspector’s requests for more detailed plans, he refused to issue the zoning certificate. Instead, he informed Engel that Engel would need to seek authorization for a motorsports park in the G-Heavy Industrial District from the Board of Zoning Appeals (BZA). A hearing was held before the BZA, at which Espel stated that, under Section 35.3.7 of the Crosby Township Zoning Resolution, the BZA had to decide whether the use was appropriate because it might emit smoke and noise.

The BZA denied the zoning certificate, finding that the use of the land as a motorsports park "may be obnoxious or offensive by reason of emission of odor, dust, smoke, gas, or noise and therefore may constitute a nuisance."

The Engels appealed the board's decision to the trial court. The trial court held that the board's denial of the zoning certificate was supported by a preponderance of probative, reliable, and substantial evidence; it therefore affirmed the denial of the certificate.

Engel appealed, asserting that the section of the resolution upon which the BZA based its decision was unconstitutionally vague. The appeals court noted that "the unconstitutionally vague.  Such an argument is “usually applicable only to criminal ordinances which fail to put persons on notice as to what conduct is prohibited." Franchise Developers, Inc. v. Cincinnati. 30 Ohio St.3d 28, 505 N.E.2d 966 (1987). Therefore, Engel's argument struck the court as 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. Additionally, the appeals court pointed out that the Crosby Township Zoning Resolution contains a list of 70 specific prohibited uses and a catchall provision that makes impermissible in general those uses which may be obnoxious or offensive by reason of emission of odor, dust, smoke, gas or noise. Noting that zoning resolutions necessarily require some generalit

y to allow flexibility to deal with unforeseen potential uses of the land, the appeals court found that the words used in the section, when given their ordinary meanings, make clear what kinds of uses are prohibited. The appeals court thus concluded that the resolution is not unconstitutionally vague, and that the trial court did not err as a matter of law when it affirmed the BZA's decision.

Comment: The editor sees quite a lot of logic in the appellant’s argument.   A fair ordinance must give applicants some notion of what standards bind the decision makers.  In a Heavy Industrial District - “offensive odor, dust, smoke, gas or noise” would seem to be the very reason that the District was created - so that such things wouldn’t bother anyone but others emitting the same noxious impacts. 

The appellant likely will have a better case based upon equal protection, comparing the impact of his activities to those already permitted in the district (assuming that there are some.)

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