Daily Development for Wednesday, September 10, 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; USE RESTRICTIONS; VAGUENESS: Ordinance prohibiting conditions that are "blighting factors" on a specific neighborhood was not void for vagueness. Willoughby v. Taylor, 906 N.E.2d 511, (Ohio App. 11 Dist. 2009).

Taylor was charged with violating Willoughby City Ordinance 1309.08, for failing to maintain his residential property; Willoughby City Ordinance 1131.11(f), for failing to remove a utility trailer from his front setback; and Willoughby City Ordinance 1131.03, for using residential property for salvaging or recycling.

Taylor pleaded not guilty to the charges and filed a motion to dismiss. The trial court overruled appellant's motion and the matter proceeded to jury trial. The issue appeared primarily to be back yard junk. Taylor had had numerous discussions with the enforcement officer, and seemed unwilling or unable to clean the junk from his back yard.

At the trial, a next door neighbor testified in Taylor's behalf, noting that she had never observed his back yard because he maintained a privacy fence, and that the front of the house had been kept neat. A cross-the-street neighbor testified to the same effect. Apparently only one neighbor had any ability to see into Taylor's messy back yard at all. Evidence for the City consisted of pictures taken of the back yard junk from inside the yard. At the close of trial, the jury found appellant guilty of failing to maintain his residence and failing to remove a utility trailer from his front setback. The jury acquitted appellant of using his property for salvaging or recycling.

On appeal, appellant specifically challenged his conviction of violating Willoughby City Ordinance 1309.08. The ordinance requires residential property to retain a "level of maintenance in keeping with the neighborhood standards of the immediate neighborhood" and prohibits conditions which constitute "blighting factors" in relation to such standards.

Appellant contended these standards are not based upon an objective or established metric and, thus, their enforcement necessarily hinged upon the subjective. Accordingly, appellant argued the ordinance failed to provide clear notice regarding the conduct which prohibited, thereby empowering the city to arbitrarily and discriminatorily cite a resident without restraint.

The appeals court affirmed the conviction. Generally, it stated that an ordinance will not be considered overly vague where it provides "fair notice" to those who must obey the standards of conduct specified therein. Baughman v. Ohio Dept. of Public Safety Motor Vehicle Salvage. 118 Ohio App.3d 564, 574 (1997). Likewise, a statute will not be declared void simply because it could have been worded more precisely. See Roth v. United States. 354 U.S. 476, 491 (1957).

Here, the appeals court interpreted the language of the ordinance, with its assistive examples of prohibited conduct, as placing a person of ordinary intelligence on fair notice of the conduct prohibited. While acknowledging that the ordinance requires contextual analysis, the appeals court did not believe this implies the ordinance is unconstitutionally vague. To the contrary, the appeals court viewed such a requirement as a restraint on an investigator's discretion which would help prevent arbitrary or discriminatory enforcement. By requiring an inspector to compare a property with its surrounding neighbors and neighborhood, the ordinance compels the inspector to place his or her decision to cite a property owner in a specific, verifiable context. The context of the neighborhood consequently controls the discretion of an inspector, thereby limiting, if not preventing, the possibility of discriminatory enforcement. The appeals court therefore held that the ordinance passes consti

tutional muster and is not void-for-vagueness.

Comment 1: If the ordinance is not too vague, does it unconstitutionally delegate the function of standard setting to non-governmental parties - i.e. the neighbors? Has this ordinance, as interpreted by the court, made failure to "keep up with the Joneses" a crime?

Comment 2: The editor is concerned that the focus of city enforcement is on maintaining the value of the individual's property, rather than maintaining the value of the neighborhood. The editor is concerned that this interferes with privacy, and agrees with Taylor that the standards established were overbroad and vague. In fact, the city's own explanation of the provisions indicated that the standards were not uniformly applied.

If the only thing wrong with Taylor's back yard was that it was weedy and brown, while the neighbors kept their backyards green and verdant, would Taylor still be in violation? Is that proper regulation?

Comment 3: The following comes from our Land Use professor here at UMKC, and the general editor of the Urban Lawyer - Julie Cheslik:

No sympathy for the homeowner from this quarter, Pat. I'd say the local government is well within its authority to act. This ordinance and its application to the property owner falls within the ambit of "providing for the general welfare" of the community whether its purpose is safety, maintaining property values or aesthetics.

The fact that a municipal ordinance requires an official to exercise a subjective judgment (What is blighted? When does the level of maintenance fall below the standards of the neighborhood?)does not render the ordinance unconstitutionally vague. Courts generally defer to the non-arbitrary exercise of judgment by municipal officers, perhaps guided by the notion that most municipal officers are not that quick to act against a non-compliant property owner. Most of these cases are only brought by the city after many attempts to work with and secure compliance from the property owner.

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