154 F.3d 621 (6th Cir. 1998), 97-3525, Berger v. City of Mayfield Heights

Docket Nº:97-3525.
Citation:154 F.3d 621
Party Name:Sanford J. BERGER, Plaintiff-Appellant, v. CITY OF MAYFIELD HEIGHTS, et al., Defendants-Appellees.
Case Date:September 08, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 621

154 F.3d 621 (6th Cir. 1998)

Sanford J. BERGER, Plaintiff-Appellant,

v.

CITY OF MAYFIELD HEIGHTS, et al., Defendants-Appellees.

No. 97-3525.

United States Court of Appeals, Sixth Circuit

September 8, 1998

Argued by Appellee June 10, 1998.

Submitted by Appellant June 10, 1998.

Page 622

Sanford J. Berger (briefed), Berger & Fertel, Cleveland, OH, for Plaintiff-Appellant.

Leonard F. Carr (briefed), Leslie Spencer (briefed), L. Bryan Carr (argued), Carr, Feneli & Carbone, Mayfield Heights, OH, for Defendants-Appellees.

Before: BATCHELDER, DAUGHTREY, and GILMAN, Circuit Judges.

OPINION

GILMAN, Circuit Judge.

This case stems from an argument between Sanford J. Berger and one of his neighbors concerning the maintenance of an intervening vacant lot owned by Berger. Berger has kept the lot in its "natural" state, apparently to the irritation of his neighbor. As a consequence, the neighbor solicited a member of the Mayfield Heights City Council to propose an ordinance requiring owners of smaller-sized vacant lots with one hundred feet or less of street frontage to "totally cut" their lots to a height of no more than eight inches. The City of Mayfield Heights ("the City") enacted the ordinance.

Not coincidentally, Berger's vacant lot fits within the criteria of the ordinance. When he refused to comply with the City's demand to clear-cut his lot, Berger was cited for a criminal violation that is currently pending in the City's municipal court. In response, Berger sued the City and certain other defendants for various constitutional violations. After the other defendants were either dismissed by Berger or found immune from liability, the district court granted summary judgment in favor of the City on all counts of Berger's complaint.

For the reasons set forth below, we find that the ordinance in question is arbitrary and capricious on its face, and therefore unconstitutional. On the other hand, we find that all of Berger's remaining claims are without merit for the reasons set forth in the district court's opinion. We therefore AFFIRM in part and REVERSE in part the decision below.

I. BACKGROUND

Berger and Lendell Riddle have been neighbors since 1991. On April 27, 1992, the Mayfield Heights City Council responded to Riddle's persistent complaints about Berger's unkept lot by amending Codified Ordinance ("C.O.") 917.14. The original ordinance, which was in place for 35 years, provided as follows:

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917.14 REMOVAL OF WEEDS BY OWNERS, OCCUPANTS, ETC.

The owner, occupant or person having the charge or management of any lot or parcel of land situated within the City, whether the same is improved or unimproved, vacant or occupied, within five days after written notice to do so, served upon him or her in conformity with Ohio R.C. 731.151, shall cut or destroy or cause to be cut or destroyed any noxious or poisonous weeds or vines growing upon the lot or parcel of land, and prevent the same from blooming, going to seed, exceeding a height of eight inches or spreading pollen which may be harmful to human health.

Mayfield Heights C.O. 917.14, later changed to C.O. 917.14(a).

This ordinance was amended to include the following additional provisions:

(b) Existing lots fronting on a right-of-way and having a width of not more than 100 feet and a total area of less than one acre shall be totally cut and maintained to a height of not more than eight inches.

(c) All other unimproved or vacant lots shall be cut and maintained free of any growth, exclusive of trees or landscaping, to a height of not more than eight inches for a distance of not less than twenty feet from any right-of-way.

Mayfield Heights C.O. 917.14(b) and (c).

Under this amended ordinance, vacant lots with a width of one hundred feet or less and a total area of less than one acre (43,560 square feet) must be "totally cut and maintained to a height of not more than eight inches." All other vacant lots are only required to have their grass cut back...

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