This post was authored by Matthew Loescher, Esq.

Appellants, Douglass Ebner, 2253 Cedar Point LLC, and 2243 Cedar Point LLC appealed the judgment of the Erie County Court of Common Pleas, which granted summary judgment in favor of appellee, the City of Sandusky, on Ebner’s counterclaims that Sandusky Ordinance Nos. 12-107 and 17-088 were invalidly enacted and were unconstitutional. The litigation at issue was initiated on October 31, 2017, when Ebner’s neighbor, Judith Kinzel, filed a complaint against Ebner seeking injunctive relief and damages. Specifically, 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.

On appeal, Ebner argued that neither of the ordinances were validly enacted because the City failed to strictly adhere to the pre-adoption notice and hearing requirements for zoning legislation contained in Sandusky Municipal Code 1113.02. The court found that the City’s charter set forth a separate category of substantive ordinances and resolutions known as “Emergency Measures.” As such, emergency measures were not subject to the procedural requirements for zoning amendments contained in Sandusky Municipal Code 1113.02. While the court found some degree of merit in the arguments of Ebner and the amici that such a holding provides municipalities a loophole through which they may circumvent procedural safeguards by simply declaring the matter an emergency – the court found that this has long been tolerated in Ohio .

Ebner also claimed that Ordinance No. 17-088 was not validly enacted in accordance with the relevant provisions of the Sandusky Municipal Code. The court noted that the issue was not with the sufficiency of the notice and whether Ebner knew to show up at the April 24, 2017 hearing, but was whether Ebner had access to all of the relevant material for a sufficient time before the hearing. SMC 1113.04(a) required that, “during the thirty (30) day period, the text or copy of the text of the ordinance, measure, or regulation, and the maps, plans, and reports submitted by the Planning Commission shall be on files, for public examination, in the office of the Clerk of the Planning Commission.” The court rejected the City’s argument that having knowledge of the underlying facts and reports was sufficient to satisfy the requirement, as the recommendation was available for review for only 12 days before the hearing, which was 40 percent of the required 30 days.

The next court found that Ordinance No. 12-107 was not unconstitutional. Here, Ebner’s proposed use of his properties as short-term rental homes would increase the commercial activity in the neighborhood, and would bring with it additional issues of late-night noise and partying, trespassing, trash and litter, and safety concerns. The City had a lawful interest in regulating those concerns, and its prohibition on the transient use of the property was rationally related to addressing those concerns. As such, the court held that Ordinance No. 12-107, as applied, was not clearly arbitrary or unreasonable, nor was it without substantial relations to the public health, safety, morals, or general welfare of the community.

The court recently held that summary judgment in favor of the City on Ebner’s equal protection claim was appropriate. By citing the deposition testimony that the ordinances were enforced against other property owners, the City met its initial burden of demonstrating the absence of a genuine issue of material fact that Ebner was treated differently. Additionally, the evidence reflected that upon receiving inquiries or notices, the other property owners stopped renting their properties. Unlike those other property owners, Ebner persisted in his short-term rental of the properties. Accordingly, Ebner was not “similarly situated” with the other property owners.

Kinzol v Ebner, 2023 WL 334768 (OH App. 1/20/2023)