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
dirt@umkc.edu
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.
Items reported here and in the ABA publications
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 and opinions expressed
are the sole responsibility of the DIRT editor or
individual contributors and are in no sense the
publication of the ABA.
Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
issues.
ABOUT DIRT:
DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 to 15 messages per work day.
DIRT Developments are posted periodically, as supply dictates.
To subscribe, send the message
subscribe Dirt [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription, send the message
signoff DIRT to the address:
listserv@listserv.umkc.edu
for information on other commands, send the message
Help to the listserv address.
DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters. Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.” But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list. If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
to
listserv@listserv.umkc.edu
To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:
listserv@listserv.umkc.edu
DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law. Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, any substitute reporters, DIRT, and its sponsors.
All DIRT Developments, and scores of other cases, arranged topically, are reported in hardcopy form in the ABA Quarterly Report. This is a limited subscription service, available to ABA Section Members, ACMA members and members of the NAR. Qualified subscribers may Subscribe to this Report ($30 for Two Years) by Sending a Check to Ms. Bunny Lee, ABA Section on Real Property, Trust & Estate Law, 321 N. Clark Street, Chicago, Il 60610. Contact Bunny Lee at (312) 988-5651, Leeb@staff.abanet.org ABA members also can access prior and current editions of this report on the ABA RPTE section website.
DIRT has a WebPage at:
http://dirt.umkc.edu/
*************************************