Daily Development for Friday,December 5, 2003 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu ZONING AND LAND USE; ORDINANCES; VAGUENESS: Sewage capacity ordinance that bases size of required sewage disposal system on number of bedrooms in house is not unconstitutionally vague due to failure to further define the term “bedroom.” McKibben Construction, Inc. v. Longshore, 788 N.E.2d 452 (Ind. App. 2003). Defendants McKibben, while constructing a home applied to the for a septic system permit. On the permit application, McKibben stated that the home would have 3 bedrooms. The permit application described a septic system with a 1,000-gallon tank and 1,500 square foot leech field, those specifications were within the prescribed limits of the applicable county ordinance for a three bedroom home. During construction, the County Inspector inspected the septic system and verified that the system actually installed was in conformance with the system detailed in the permit application. Upon completion of the house, McKibben marketed the house as having four bedrooms. Plaintiff Longshore purchased the home from McKibben on February 13, 1992. In the purchase agreement Longshore expressly waived his right to an independent inspection of the home and released McKibben from liability with respect to defect. However, the release signed by Longshore did not comply with the statutory form of waiver for the implied warranty of habitability. Longshore later experienced problems with the septic system. An inspector the County Health Department inspected Longshore’s property, finding that the septic system had failed because the system was undersized. The inspector determined that the system failed to comply with the ordinance because the septic system and absorption field were too small for a 4 bedroom home. Longshore sued McKibben on account of the septic system failure, alleging misrepresentation and fraud because McKibben had marketed the home as a four bedroom house when the septic system was capable of only accommodating 3 bedrooms. McKibben filed a motion for summary judgment, alleging that the septic system ordinance was unconstitutional and did not give rise to a private right of action. The trial court denied McKibben’s motion for summary judgment and certified its judgment for interlocutory appeal. McKibben argued the ordinance was unconstitutionally vague and, thus, could not form the basis of a claim for breach of the implied warranty of habitability. Specifically, McKibben contended that the term “bedroom” is not defined in the ordinance. Because future occupiers could always furnish a room with a bed, McKibben maintained that in the ordinance it was not given ascertainable standards for prognosticating how many rooms in the home would be furnished and used for sleeping. Held: Affirmed. The court of appeals of Indiana noted that in reviewing a constitutional challenge it will not find an ordinance void for vagueness if its language is adequate enough to inform a person of average intelligence of what conduct is prescribed. The court found that while McKibben was correct in stating that future residents of a home may transform a room into a bedroom by placing a bed therein, a person of ordinary intelligence would reasonably know the term “bedroom” means. The definition of “bedroom” is “a room furnished with a bed and intended primarily for sleeping”. Because the ordinance was such that a reasonable person would be informed of its meaning the court found that the ordinance was not void for vagueness. Because the ordinance was such that a reasonable person would be informed of its meaning the court found that the ordinance was not void for vagueness. Comment: Of course, McKibben in this case was more than a little vulnerable, in that it had represented to the County that it had built a three bedroom house and marketed the home as a four bedroom house. On the other hand, is it in fact true that a “person of ordinary intelligence” would differentiate between a “bedroom” and a “study?” In the trade, the presence of closets usually defines an otherwise empty room as a bedroom. But is this adequate for design controls? For instance - a developer installs doors to cover a space for an entertainment system. Otherwise the room has two doors and is kind of a “pass through” designed for use as a family room. It is, on the other hand, otherwise an enclosed room with a closet and certainly usable as a bedroom. Should the local county be able to insist on a large sewage capacity as a result of this room? Maybe it’s better to use some other measure for sewage capacity, such as bathrooms or square footage. Or maybe its better just to be sensible about everything and not sue each other all the time(???? Nawwwwww.) Readers are encouraged to respond to or criticize this posting. Items reported on DIRT and in the ABA publications related to it are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data provided and opinions expressed by the DIRT editor the sole responsibility of the DIRT editor and are in no sense the publication of the ABA. 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