Berger v. City of Mayfield Heights, 97-3525

• Decision Date: 08 September 1998
• Docket Number: No. 97-3525,97-3525
• Citation: 154 F.3d 621
• Parties: Sanford J. BERGER, Plaintiff-Appellant, v. CITY OF MAYFIELD HEIGHTS, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 621

154 F.3d 621

Sanford J. BERGER, Plaintiff-Appellant, v. CITY OF MAYFIELD HEIGHTS, et al., Defendants-Appellees.

No. 97-3525.

United States Court of Appeals, Sixth Circuit.

Argued by Appellee June 10, 1998 Submitted by Appellant June 10, 1998 Decided Sept. 8, 1998.

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:

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 twenty feet from the street. Given that Berger's lot has a width of 100 feet and is 42,062 square feet in size, it is subject to subsection (b) of the amended ordinance.

The City issued Berger a Warning Notice on July 8, 1993, requiring him to "cut and maintain [his] vacant lot" within five days. In response, Berger cut his grass back somewhat more than twenty feet from the sidewalk. On July 26, 1993, he was criminally charged in the City's municipal court with failing to fully comply with the new ordinance.

Berger filed a motion to dismiss the criminal charge, challenging the constitutionality of the ordinance. On September 3, 1994, he filed this suit in the federal district court. He named as defendants the City, his neighbor, the president of the City Council, the Director of the City's Building Department, the Director of the City's Service Department, and the judge in the municipal court.

Berger brings the following claims in his complaint:

Count I: That the amended ordinance is not substantially related to the public health, safety, and welfare of the City, violates Ohio Rev.Code § 731.30, and is unreasonable and arbitrary, constituting a substantive due process violation under the Fourteenth Amendment.

Count II: That the amended ordinance is unconstitutional on equal protection grounds, because it treats similarly situated landowners differently, based solely on the square footage of their properties.

Count III: That the ordinance was enforced against him only, and therefore, in a discriminatory manner.

Count IV: That the ordinance is void for vagueness.

Count V: That the ordinance is unenforceable because it was passed at the sole behest of a private citizen.

Count VI: That the ordinance denies him a property interest by requiring his compliance without a legislative finding of a "nuisance."

Count VII: That the ordinance constitutes a taking under the Fifth Amendment.

Count VIII: That the president of the city council and one of Berger's neighbors civilly conspired to deprive Berger of his federal and state rights.

Count IX: That the president of the city council and Berger's neighbor violated 42 U.S.C. § 1982 by conspiring to deprive Berger of his property because of his ethnicity.

Count X: That the City and the president of the council are liable to pay Berger monetary damages.

Count XI: That the amended ordinance denies landowners of their Fourteenth Amendment right to due process by allowing destruction of a landowner's property without prior notice, without a legislative determination thereof, and without sufficient compliance with Ohio Rev.Code § 731.30.

Count XII: That the municipal court judge is proceeding with a criminal prosecution against him without a prior finding of probable cause, in violation of his rights under the Fourth and Fourteenth Amendments of the United States Constitution, and Article I §§ 14 and 16 of the Ohio Constitution.

Berger also moved for injunctive relief and a temporary restraining order. The district court granted the temporary restraining order. The City then entered into a consent agreement with Berger to hold in abeyance the criminal prosecution and the cutting down of the trees and other vegetation on his unimproved lot pending this appeal.

II. ANALYSIS

A. Facial Challenge to the Ordinance

In Count I of Berger's complaint, he alleges that the ordinance in question violates the Due Process Clause of the Fourteenth Amendment because the ordinance is not rationally related to any legitimate health or safety concern. In Count II of his complaint, he alleges that the ordinance violates the Equal Protection Clause of the Fourteenth Amendment because it arbitrarily discriminates against the owners of smaller-sized lots with no more than one hundred feet of frontage. The essence of both counts is the claim that no rational relationship exists between the terms of the ordinance and a legitimate governmental purpose. See Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) (holding that a legislative enactment must bear "a rational relation to some legitimate end" to survive an equal protection challenge); Gustafson v. City of Lake Angelus, 76 F.3d 778, 790-91 (6th Cir.1996) (applying rational-basis review in a substantive due process challenge to a legislative act).

The Mayfield Heights City Council did not articulate any such rational relationship, other than to summarily conclude that the ordinance "was necessary for the immediate preservation of the public peace, health, and safety." As for the district court, the total discussion of the alleged rational relationship is expressed in the following two paragraphs of its opinion:

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