Kinzel v. Ebner
| Decision Date | 20 January 2023 |
| Docket Number | E-21-036 |
| Citation | 2023 Ohio 164 |
| Parties | Judith A. Kinzel, Trustee, et al. Appellees v. Douglass Ebner, aka Douglas Ebner, et al. Appellants v. Richard L. Kinzel, et al. Appellees |
| Court | Ohio Court of Appeals |
Michael Braunstein and Matthew L. Strayer, for Appellee Judith A. Kinzel, Trustee.
Charles A. Bowers, Stephen M. O'Bryan, and Mark E. Staib for Appellants.
Matthew L. Strayer, for Appellee, Richard L. Kinzel.
Frank H. Scialdone, for Appellee, City of Sandusky.
Robert J. Tucker, for Amicus Curiae, Ohio Realtors.
Christopher A. Holecek and Christina Sandefur, for Amicus Curiae, Goldwater Institute.
DECISION AND JUDGMENT
{¶ 1} Appellants, Douglass Ebner, 2253 Cedar Point LLC, and 2243 Cedar Point LLC (collectively "Ebner"), appeal the judgment of the Erie County Court of Common Pleas, which granted summary judgment in favor of appellee, the city of Sandusky ("the City"), on Ebner's counterclaims that Sandusky Ordinance Nos. 12-107 and 17-088 were invalidly enacted and were unconstitutional. For the reasons that follow, we affirm, in part, and reverse, in part.
{¶ 2} The underlying facts of this appeal are straightforward; the litigation history less so. This is the second time this case has been on appeal. In Kinzel v. Ebner, 2020-Ohio-4165, 157 N.E.3d 898 (6th Dist), we set forth the facts and most of the arguments raised by the parties as follows.
{¶ 3} Ebner is the owner of single-family homes located on Lot 12 and Lot 13 of the Laguna Subdivision.[1] The homes are beachfront property, situated along the shore of Lake Erie, and are located on the Cedar Point Chaussee, which is a narrow strip of land that connects the Cedar Point Amusement Park peninsula to the city of Sandusky. 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. Ebner uses Lot 13 almost exclusively for short-term vacation rentals. Lots 12 and 13 are located next to the amusement park.
{¶ 4} The litigation was initiated on October 31, 2017, when Ebner's neighbor, Judith Kinzel, filed a complaint against Ebner seeking injunctive relief and damages.[2] Kinzel alleged that Ebner's use of the properties for short-term rentals was in violation of deed restrictions as well as Sandusky Municipal Ordinance Nos. 12-107 and 17-088. Notably, two months earlier, the City had filed criminal charges against Ebner in Sandusky Municipal Court for violating Sandusky Municipal Code 1341.32, which prohibits transient rentals of property.
{¶ 5} Ebner filed a counterclaim against Kinzel, Kinzel's husband, and the City. Relevant here, Ebner's counterclaim against the City sought a declaration that Ordinance Nos. 12-107 and 17-088 were not validly enacted and were unconstitutional.[3] Further, Ebner claimed that the City's criminal enforcement action against him violated Equal Protection.
{¶ 6} On April 22, 2019, the trial court entered its judgment on the parties' various competing motions for summary judgment. The trial court awarded partial summary judgment in favor of Kinzel on her ordinance violation claim, finding that judgment as to liability was appropriate, but reserving for the jury the issue of causation and damages. The trial court also awarded summary judgment to the City on nearly all of Ebner's counterclaims, finding that because the validity and constitutionality of Ordinance Nos. 12-107 and 17-088 were at issue in the criminal case against Ebner, and because the jurisdiction of the Sandusky Municipal Court was invoked first, the jurisdictional priority rule deprived the trial court of jurisdiction to rule on Ebner's claims. Alternatively, the trial court ruled that the City was entitled to summary judgment because the statutes were valid and constitutional. The court did find, however, that a question of fact remained as to Ebner's equal protection claim, and thus denied the City's motion for summary judgment on that claim.
{¶ 7} Ebner and Kinzel appealed and cross-appealed, respectively, the trial court's April 22, 2019 judgment. In Kinzel v. Ebner, this court affirmed the trial court's judgment, in part, and reversed, in part. Kinzel v. Ebner, 2020-Ohio-4165, 157 N.E.3d 898, at ¶ 2. This court affirmed the judgment as it pertained to the claims between Kinzel and Ebner. As to the claims between Ebner and the City, this court reversed the trial court's judgment that the jurisdictional priority rule deprived the court of jurisdiction to consider Ebner's challenge to the validity and constitutionality of Ordinance Nos. 12-107 and 17-088. Id. at ¶ 87. However, this court did not reach the merits of the trial court's judgment that the ordinances were valid and constitutional because we sua sponte found that the judgment was not a final, appealable order. Id. at ¶ 90.
{¶ 8} Upon remand to the trial court, on February 8, 2021, the trial court reconsidered the City's motion for summary judgment on Ebner's equal protection claim. The court found that Ebner had failed to identify any other similarly situated landowners to which the ordinances applied but were not enforced. The court further found that Ebner presented nothing more than speculation and inferences that the criminal enforcement of the ordinances was motivated by malice unrelated to the City's official duties. Thus, the trial court awarded summary judgment to the City on Ebner's equal protection claim.
{¶ 9} Ultimately, the remaining claims between Kinzel and Ebner were settled and dismissed. All of the claims between the parties having been resolved, the trial court's April 22, 2019 judgment-holding that Ordinance Nos. 12-107 and 17-088 are valid and constitutional-is now final and appealable.[4]
{¶ 10} Ebner has timely appealed the trial court's April 22, 2019, and February 8, 2021 judgments, and now presents three assignments of error for our review:
{¶ 11} We review the grant or denial of a motion for summary judgment de novo, applying the same standard as the trial court. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129, 572 N.E.2d 198 (9th Dist.1989); Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Under Civ.R. 56(C), summary judgment is appropriate where (1) no genuine issue as to any material fact exists; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).
{¶ 12} In his first and second assignments of error, Ebner argues that the trial court erred when it held that Ordinance Nos. 12-107 and 17-088 were validly enacted and were constitutional. Ebner organizes his argument by first addressing whether both of the ordinances were validly enacted, and then addressing whether both of the ordinances are constitutional. We will do the same.
{¶ 13} In his brief, Ebner argues that neither of the ordinances were validly enacted because the City failed to strictly adhere to the public notice and hearing requirements. The City responds that Ordinance No. 12-107 was validly enacted as an emergency measure, and that Ordinance No. 17-088 was validly enacted because the City substantially complied with the public notice and hearing requirements. We will begin with a brief, general discussion of the interplay between the Ohio Constitution, the Ohio Revised Code, and the City of Sandusky Charter. We will then apply those authorities to each ordinance in turn.
{¶ 14} Article XVIII, Section 3 of the Ohio Constitution provides that "Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." "[U]nder such powers of local self- government a municipality may enact ordinances relating to the subject of zoning." Morris v. Roseman, 162 Ohio St. 447, 450, 123 N.E.2d 419 (1954), citing Pritz v. Messer, 112 Ohio St. 628, 149 N.E. 30 (1925). In Morris, the Ohio Supreme Court recognized two sources of authority for the way that municipalities may enact ordinances:
By Section 2, Article XVIII,[5] a mandatory duty is placed upon the General Assembly to enact laws for the incorporation and government of cities and villages, and Section 7, Article XVIII,[6] grants a municipality the option of determining its own plan of local self-government by framing and adopting a charter. If a municipality adopts a charter it thereby and thereunder has the power to enact and enforce ordinances relating to local affairs, but, if it does not, its organization and operation are regulated by the statutory provisions covering the subject.
Id. The Ohio General...
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