Kinzel v. Ebner

• Decision Date: 21 August 2020
• Docket Number: Nos. E-19-033,E-19-034,s. E-19-033
• Citation: 157 N.E.3d 898,2020 Ohio 4165
• Parties: Judith A. KINZEL, Trustee, Appellee/Cross-Appellant v. Douglass EBNER aka Douglas Ebner and 2253 Cedar Point, LLC and 2243 Cedar Point, LLC, Appellants/Cross-Appellees v. Richard L. Kinzel and City of Sandusky, Appellees
• Court: Ohio Court of Appeals

157 N.E.3d 898

2020 Ohio 4165

Judith A. KINZEL, Trustee, Appellee/Cross-Appellant

v.Douglass EBNER aka Douglas Ebner and 2253 Cedar Point, LLC and 2243 Cedar Point, LLC, Appellants/Cross-Appellees

v.Richard L. Kinzel and City of Sandusky, Appellees

Nos. E-19-033

E-19-034

Court of Appeals of Ohio, Sixth District, Erie County.

Decided: August 21, 2020

Michael Braunstein, Clinton P. Stahler, Aaron E. Kenter and Matthew L. Strayer, Columbus, for appellee/cross-appellant.

Charles A. Bowers, Stephen M. O'Bryan, Cary M. Snyder and Matthew B. Barbara, Cleveland, for appellants/cross-appellees.

Frank H. Scialdone, Cleveland, for appelleecity of Sandusky.

John H. Burtch and Robert J. Tucker, Columbus, for amicus curiae The Ohio Realtors®.

Christina Sandefur and Christopher A. Holecek, Cleveland, for amicus Curiae Goldwater Institute.

DECISION AND JUDGMENT

MAYLE, J.

{¶ 1}This case is before the court upon consolidated cross-appeals from the April 22, 2019 judgment of the Erie County Court of Common Pleas.Defendants-appellants/cross-appellees are Douglass Ebner, aka Douglas Ebner, 2253 Cedar Point, LLC, and 2243 Cedar Point, LLC (collectively, "Ebner").Plaintiff-appellee/cross-appellant is Judith Kinzel("Kinzel"), Trustee under the Judith A. Kinzel Trust Agreement (dated August 13, 1989, amended on June 25, 1997, amended on January 5, 1999, restated on January 17, 2002 and amended and restated on September 1, 2006 and amended on the 23rd day of October 2015)("the Kinzel Trust").Counterclaim defendants-appellees are Kinzel's husband, Richard Kinzel, and the city of Sandusky.Ohio Realtors and Goldwater Institute have filed briefs of amicus curiae in support of Ebner.

{¶ 2} For the reasons that follow, we affirm the trial court judgment, in part, and reverse, in part.

I.Background

{¶ 3} Kinzel is the trustee of the Kinzel Trust, which owns property located at 2267 Cedar Point Road in Sandusky, Ohio—Lots 14 and 15 of the Laguna Subdivision("the Kinzel property").Ebner is the sole member of limited liability companies that own 2253 Cedar Point Road—Lot 12 of the Laguna Subdivision("Lot 12")—and 2243 Cedar Point Road—Lot 13 of the Laguna Subdivision("Lot 13").All three homes are beachfront properties, situated along the shore of Lake Erie, and are located on the Cedar Point Chaussee, a narrow strip of land that connects Cedar Point Amusement Park peninsula to the city of Sandusky.The Kinzel property is directly adjacent to the amusement park.

{¶ 4} Kinzel acquired her property in 1987.Ebner acquired his properties in 2013 and 2015.He and his family reside in the home on Lot 12, but he offers it for short-term vacation rentals when he is out of town.Lot 13—which is located next door to the Kinzel property—is used almost exclusively for short-term vacation rentals.

{¶ 5} Kinzel filed a complaint for injunctive relief and damages against Ebner, alleging that Ebner's use of Lots 12 and 13 for short-term vacation rentals violates deed restrictions and Sandusky Municipal OrdinanceNos. 12-107and17-088.Her seven-count complaint against Ebner alleged: (1) breach of restrictive covenants (Count I); (2) violation of Sandusky Municipal OrdinanceNos. 12-107and17-088(Count II);(3) absolute nuisance—ordinance violations (Count III); (4) absolute nuisance—intentional acts (Count IV); (5) qualified nuisance (Count V); (6) preliminary and permanent injunction (Count VI); and (7) punitive damages (Count VII).

{¶ 6} The city issued Ebner formal notices of violations of Sandusky Municipal OrdinanceNos. 12-107and17-088.In August and October of 2017, it filed criminal complaints against him in Sandusky Municipal Court under OrdinanceNo. 17-088.After receiving notice of Kinzel's complaint against him, Ebner counterclaimed against Kinzel, Kinzel's husband, and the city, challenging the validity and constitutionality of the city ordinances and alleging (1) declaratory judgment—OrdinanceNo. 12-107(Count I);(2) declaratory judgment—OrdinanceNo. 17-088(Count II);(3) declaratory judgment—taking (Count III); (4) mandamus (Count IV); (5) tortious interference (Count V); (6) conspiracy (Count VI); (7) punitive damages (Count VII); (8) attorney's fees and costs—OrdinanceNo. 17-088(Count VIII);(9) equal protection—Class of One— 42 U.S.C. 1983(Count IX);(10) due process— 42 U.S.C. 1983(Count X);(11) freedom of speech— 42 U.S.C. 1983(Count XI); and (12) taxpayer action— R.C. 733.59(Count XII).Ebner maintains that if OrdinanceNo. 12-107 is invalid and unconstitutional, then his use of the properties from 2013 to 2017 for short-term rentals will constitute a legal non-conforming use not subject to OrdinanceNo. 17-088.

A.The Ordinances

{¶ 7} The properties at issue are located in an area zoned R1-75.Ebner owns or has owned other properties on the Chaussee that he offers for short-term rentals.The city has taken the position that short-term rentals are not allowed in areas zoned R1-75, where only "one family dwellings" are permitted.Sandusky Codified Ordinances 1129.03."Dwelling," as it was defined in the Sandusky Codified Ordinances before December 12, 2012, is "a building designed or occupied exclusively for non-transient residential use, including one family, two family, or multi-family buildings."(Emphasis added.)Sandusky Codified Ordinances1107.01(G)(2).

{¶ 8} In 2011, the city issued Ebner cease and desist orders seeking to prohibit him from offering his other properties for short-term rentals.Ebner challenged the city's position before the zoning board, which ruled for the city.Ebner appealed to the Erie County Court of Common Pleas, which ruled in his favor.The city appealed to this court.In Ebner v. Sandusky , 6th Dist. ErieNo. E-12-057, 2013-Ohio-2475, 2013 WL 3055654, ¶ 10, we concluded that "non-transient," as used in Sandusky Codified Ordinances1107.01(G)(2), is unconstitutionally vague, and, therefore, void.We also found that use of the disjunctive "or" in the definition of "dwelling" signified the presence of alternatives—i.e., that a building is a "dwelling" if it is designed for non-transient residential use "or" if it is occupied for non-transient residential use.Id.at ¶ 11.Because the properties at issue were designed for single-family use, we concluded that Ebner was not in violation of the zoning ordinances.

{¶ 9} While Ebner was pending, the city sought to correct the infirmities that rendered the ordinance vague.It ultimately enacted OrdinanceNo. 12-107, passed on November 12, 2012, which amended Sandusky Codified Ordinances1107.01(g)(2) by deleting "designed or" from the definition of "dwelling," and by adding the following definitions:

(11)"Non-transient" means a period of not less than 365 days.

(12)"Transient occupancy" means occupancy when it is the intention of the parties that the occupancy will be temporary.There is a rebuttable presumption that, when the dwelling unit occupied is not the sole residence of the guest, the occupancy is transient.

{¶ 10} Internally, however, the city recognized that OrdinanceNo. 12-107, too, was likely flawed, and set out to correct it.The result was OrdinanceNo. 17-088, passed on May 8, 2017.This amendment deleted the term "non-transient" and re-defined "transient occupancy" to mean "to use, occupy, or possess, or the use, occupancy, or possession of a dwelling or other living accommodations for a period of 30 consecutive calendar days or less."Sandusky Codified Ordinances1107.01(h)(11) and 1341.32(b)(1).It also defined "transient rental" to mean "the renting, letting, subletting, leasing or subleasing of a dwelling for a period of 30 consecutive calendar days or less."Sandusky Codified Ordinances1341.32(b)(2).

{¶ 11}OrdinanceNo. 17-088 established a "transient occupancy overlay district."Sandusky Codified Ordinances1129.06(g).It expanded the permitted uses in certain zoning districts—including the roadside business district, downtown business district, commercial recreation district, and commercial amusement district—to allow "transient occupancy."Sandusky Codified Ordinances1133.05(a)(4), 1133.08(a)(4), 1137.03(a)(2)(I), and 1137.04(a)(4).It added a procedure for annually proving legal nonconforming transient occupancy use.Sandusky Codified Ordinances 1151.08.And it created an entirely new regulatory scheme applicable to transient rental property, requiring property owners to obtain permits and undergo inspections.Sandusky Codified Ordinances 1341.32.

{¶ 12} It was under this new scheme created by OrdinanceNo. 17-088 that the city cited Ebner criminally in Sandusky Municipal Court.Kinzel's complaint alleged ordinance violations under both OrdinanceNos. 12-107and17-088.

B.The June 18, 2018 Judgment

{¶ 13} Kinzel moved for partial dismissal of Counts V (tortious interference), VI (conspiracy), and VII (punitive damages) of Ebner's counterclaim.The city moved for partial judgment on the pleadings with respect to Counts III (declaratory judgment—taking), V, VI, VII, and XII (taxpayer action— R.C. 733.59 ) of Ebner's counterclaim.

{¶ 14} On June 18, 2018, the trial court granted Kinzel's motion and dismissed without prejudice Ebner's claims for tortious interference, civil conspiracy, and punitive damages.The court granted the city's motion, in part, dismissing without prejudice those same claims.As to Counts III and XII—and with respect to all other claims requiring it to determine the constitutionality of the ordinances (i.e., Counts I, II, IX, X, and XI)—the trial court expressed skepticism about its jurisdiction to rule on those claims.It explained that it had been informed by the parties that the validity and constitutionality of the ordinances were being challenged by Ebner in the criminal cases pending in Sandusky Municipal Court.The trial court questioned whether it was permissible for it to rule on these claims while the same argument was pending before the municipal court in the criminal action.It ordered the...