OH Court of Appeals Rejects Claim of Challenging Regulations Limiting Short-Term Rentals

This post was written by Matthew Loescher, Esq.

The appellant, Douglass Ebner, 2253 Cedar Point LLC, and 2243 Cedar Point LLC appealed the Erie County General Appeals Court decision, which upheld the summary decision in favor of the appellant, the City of Sandusky, in Ebner’s counterclaim that Sandusky Ordinance No. 12 -107 and 17-088 are not valid and unconstitutional. The litigation in question began on October 31, 2017, when Ebner’s neighbor, Judith Kinzel, filed a complaint against Ebner seeking damages and damages. Specifically, Kinzel alleges that Ebner’s use of the property for short-term rentals violated deed restrictions as well as Sandusky City Ordinance No. 12-107 and 17-088.

On appeal, Ebner argued that none of the ordinances were legally enforceable because the City failed to strictly comply with the pre-adoption notification and hearing requirements for zoning laws contained in Sandusky Municipal Code 1113.02. The court found that the City charter established a separate category of substantive ordinances and resolutions known as “Emergency Measures.” As such, emergency measures are 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 Ebner and Amici’s argument that such detentions gave the city a loophole where they could circumvent procedural protection by simply declaring a matter of emergency – they found this had long been tolerated in Ohio. .

Ebner also claims that Ordinance No. 17-088 is not lawfully enforced in accordance with the relevant provisions of the Sandusky Municipal Code. The court noted that the issue was not the adequacy of the notification and whether Ebner knew to appear at the April 24, 2017 hearing, but whether Ebner had access to all relevant material for a sufficient amount of time before the hearing. SMC 1113.04(a) requires that, “during a period of thirty (30) days, texts or copies of texts of regulations, acts, or regulations, and maps, plans, and reports submitted by the Planning Commission shall be on file, for public examination, in the office of the Registrar of the Planning Commission. The court rejected City’s argument that having knowledge of the facts and the underlying reports was sufficient to qualify, as recommendations are available for review only 12 days before a hearing, which is 40 percent of the 30 days required.

The Court further finds that Rule No. 12-107 is not against the constitution. Here, Ebner’s proposed use of his property as a short-term rental home would increase commercial activity in the neighborhood, and would bring with it additional problems of late night noise and parties, trespassing, litter and trash, and security concerns. The city has a legitimate interest in regulating the matter, and a ban on the rational use of the temporary property is related to dealing with the matter. Thus, the court decided that Ordinance No. 12-107, as applied, is clearly neither arbitrary nor unreasonable, nor is it without substantial bearing on public health, safety, morals, or the welfare of society in general.

The court ultimately ruled that a summary judgment in favor of City on Ebner’s equivalent protection claim was appropriate. By citing the deposition’s testimony that the ordinances applied to the other property owners, the City fulfilled its initial burden of demonstrating there was no genuine matter of material fact that Ebner was treated differently. In addition, evidence shows that after receiving inquiries or notifications, other property owners stopped renting out their properties. Unlike other property owners, Ebner survives on short-term leases on his properties. Therefore, Ebner was not “on the same page” with other property owners.

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

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