Foster v. Wickliffe

• Decision Date: 28 December 2007
• Docket Number: No. 2006-L-053.,2006-L-053.
• Citation: 2008 Ohio 7132,175 Ohio App.3d 526,888 N.E.2d 422
• Parties: FOSTER et al., Appellants, v. WICKLIFFE, Appellee.
• Court: Ohio Court of Appeals

888 N.E.2d 422

175 Ohio App.3d 526

2007-Ohio-7132

FOSTER et al., Appellants, v. WICKLIFFE, Appellee.

No. 2006-L-053.

Court of Appeals of Ohio, Eleventh District, Lake County.

Decided December 28, 2007.

Richard D. DiCicco and Louis A. Turi Jr., for appellants.

William C. Gargiulo, City of Wickliffe Police Prosecutor, for appellee.

COLLEEN MARY O'TOOLE, Judge.

{¶ 1} Martha A. and Gilbert C. Foster appeal the trial court's judgment entry denying their motion for summary judgment on the constitutionality and validity of City of Wickliffe Ordinance 2000-26 and on related claims. We affirm.

{¶ 2} The instant matter is the latest culmination in a series of disputes between the Fosters and the city of Wickliffe, appellee, relating to the city's attempt to prohibit parking or storage of recreational vehicles ("RVs") in the front yards of its residents.

{¶ 3} In December 1986, the city passed Ordinance 1986-58, which amended Section 351.16 of its traffic code to bar parking of motor homes or house vehicles in front yards between the hours of 9 p.m. and 6 a.m. In October 1991, the city passed Ordinance 1991-60, which amended Section 351.16 by defining the phase "front yard" and added "boats" and "boat trailers" to the prohibition. In May of 1993, the city passed Ordinance 1993-2, which amended Section 351.16 by further defining the term "front yard" and making violations of the section a minor misdemeanors.

{¶ 4} After being cited multiple times for violations of Section 351.16, the Fosters filed their original complaint in the Lake County Court of Common Pleas under case No. 94 CV 000103 in January 1994. The Fosters sought, inter alia, a declaratory judgment finding Section 351.16 invalid and unconstitutional. The case was consolidated with a separate case, case No. 94 CV 000102, i.e., Donsante v. Wickliffe, in which the plaintiff sought the same relief.

{¶ 5} Upon criminal prosecution on the various citations in the Willoughby Municipal Court, the Fosters moved to have the citations dismissed. In May 1994, the Municipal court held Section 351.16, as amended, invalid and granted the Fosters' motion. The court held that off-street parking was subject to regulation within the city's zoning code in accordance with Section 1321 of the Codified Ordinances of the City of Wickliffe. Thus, because the amendments were not submitted to the Planning Commission prior to enactment in accordance with the city's charter, the ordinance was invalid. The city did not appeal this decision.

{¶ 6} On December 19, 1994, the Wickliffe City Council enacted Ordinance 1994-34, which amended Section 1321.50 of the city's planning and zoning code to prohibit parking of recreational vehicles on certain portions of residential lots and repealed Section 351.16. In doing so, the regulations were transferred from the traffic code to the planning and zoning code.

{¶ 7} In February 1995, the Fosters filed their first supplemental complaint to invalidate Wickliffe Ordinance 1994-34. Following a bench trial, the trial court found that the ordinance had been improperly enacted because the city had not advertised and hold a public hearing. The court determined that Section 1321.50, as amended, was invalid and unenforceable.¹

{¶ 8} In 1996, the city enacted Ordinance 1996-2, an ordinance essentially identical to Ordinance 1994-34. In June of 1996, the Fosters filed their second supplemental complaint, challenging this latest enactment. The parties agreed that the testimony, exhibits, and other evidence admitted at the earlier bench trial relating to Ordinance 1994-34 were to be considered in determining the validity and constitutionality of Ordinance 1996-2. On February 12, 1998, the trial court denied the Fosters' claims and held that Section 1321.50, as amended by Ordinance 1996-2, was valid and enforceable. This judgment disposed of all of appellants' claims and was therefore a final, appealable order.

{¶ 9} Appellants appealed to this court, and on October 29, 1999, in Donsante v. Wickliffe (Oct. 29, 1999), 11th Dist. Nos. 98-L-046 and 98-L-047, 1999 WL 1074115, this court reversed the trial court's judgment and held Ordinance 1996-2 invalid due to fatal procedural flaws in its enactment.

{¶ 10} First, this court held that the notice pertaining to the public hearing on the ordinance was inadequate. The notice merely informed the public that Ordinance 1996-2 was intended to regulate the parking of recreational vehicles on residential property. Donsante at *1-2. This court reasoned that the definition of "recreational vehicle" set forth at R.C. 4501.01(Q), read in conjunction with the published notice, sufficiently informed the public of the general nature of vehicles comprehended by the notice. Donsante at *2. However, Ordinance 1996-2 also purported to regulate the parking of boats, boat trailers, trucks, and vehicles exceeding a three-quarterton rating. Id. at *2. This court held that nothing in the statutory definition of recreational vehicle could put owners of these on notice concerning the true extent of the ordinance and, consequently, that the published notice of the hearing on Ordinance 1996-2 was inadequate. Id. at *3.

{¶ 11} Second, this court determined the city had failed to submit the legislation amending the planning and zoning code to a referendum of the voters as required by Section 3, Article XI of the Charter of the City of Wickliffe. Donsante at *3-4. This court mooted out various other assignments of error concerning the constitutionality of Ordinance 1996-2 and entered judgment for the plaintiffs. Id. at *4. 10-11.

{¶ 12} The city appealed to the Supreme Court of Ohio. On February 2, 2000, that court dismissed the matter, finding "no substantial constitutional question." Donsante v. Wickliffe (2000), 88 Ohio St.3d 1412, 723 N.E.2d 118.

{¶ 13} After the Supreme Court's dismissal, the city drafted Ordinance 2000-26, which was substantively identical to Ordinance 1996-2. The ordinance was referred to the planning commission, and a notice of a public hearing was published twice in a local newspaper. The public notice stated that the hearing would concern an ordinance titled "Residential Off Street Parking" to "regulate the parking of recreational vehicles on residential property." The notice further provided that if the ordinance was adopted and approved by the electorate, it would amend the city's zoning code concerning the "parking of recreational vehicles, trucks and other vehicles on residential property." The hearing occurred on August 7, 2000. On August 14, 2000, the Wickliffe City Council adopted the ordinance unanimously and placed it on the ballot for the upcoming election. On November 7, 2000, the voters of Wickliffe passed the ordinance 3,667 to 2,378.

{¶ 14} October 10, 2001, the Fosters filed a "Third Supplemental Complaint for Declaratory Judgment, Temporary and Permanent Injunctions," under the same trial court number as the matter adjudicated by this court in 1999 and dismissed by the Supreme Court in 2000. The complaint specifically alleged that Ordinance 2000-26 should be declared invalid because, inter alia, it violated the Fosters' due process rights, rights under 42 U.S.C. 1983, and equal protection rights and involved taking of their property in violation of the Fourteenth Amendment. The Fosters also asserted that they had a valid pre-existing, nonconforming use of their property prior to the passage of this ordinance and accordingly moved to permanently enjoin enforcement of Ordinance 2000-26 as it pertained to them.

{¶ 15} On February 10, 2003, the city moved for summary judgment. On June 3, 2003, the Fosters filed their response motion and moved the trial court for summary judgment in their favor. On March 13, 2006, the trial court granted the city's motion for summary judgment with respect to 10 of 11 issues raised by the Fosters. It held that (1) the city could use police to enforce the ordinance, (2) the city did not negligently enact the ordinance so as to cause the Fosters to continuously defend themselves against citations at great cost and expense, (3) the city did not intentionally enact the ordinance so as to cause the Fosters to continuously defend themselves against citations at great cost and expense, (4) the city provided sufficient notice to publicly inform citizens of the nature and character of the ordinance, (5) the ordinance was not arbitrary, capricious, confiscatory, and discriminatory, (6) the ordinance did not deprive the Fosters of the lawful use of their property, (7) the ordinance did not violate the Fosters' equal protection rights, (8) the ordinance did not undermine a constitutionally protected property interest in violation of due process, (9) the ordinance did not amount to an unconstitutional taking, and (10) the ordinance did not violate the Fosters' rights under 42 U.S.C. Section 1983 by depriving them of a property interest in their land.

{¶ 16} However, the trial court denied the city's motion as it related to the Fosters' assertion that they had a valid pre-existing, nonconforming use of their property prior to the passage of the ordinance. On this issue, the trial court granted the Fosters' motion for summary judgment. In so ruling, the trial court concluded:

{¶ 17} "The court finds that there is no genuine issue of material fact that the Fosters' parking of an RV in front of their house poses no immediate and direct threat to public health, safety or morals. It has not presented any traffic or fire hazards, has not significantly degraded property values and has not been the source of a significant amount of neighborhood complaints. It is well maintained and is not unsightly other than its bulk. The court finds that there is no genuine issue of material fact that the Fosters prior non-conforming use is not a nuisance and that as a matter of law, they are entitled to continue their non-conforming use.

{¶ 18} "* * * The City of Wickliffe is...