Agenda - Planning Commission - 10/03/2013

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Zoning Bulletin August 25, 2013 1 Volume 7 I Issue 16 Cedar Point Road (the "Cedar Point House ") in the city of Sandusky, Ohio (the "City "). The Cedar Point House was located along a causeway, known as the Cedar Point Chaussee, which connected the City to a peninsula containing the Cedar Point amusement park. The Cedar Point House was on a lot that was zoned as R1 -75. That zone au- thorized "one- family dwellings" under § 1129.03 of the City's Codified Ordinance (the "Zoning Ordinances" or the "Zoning Code "). Pursuant to § 1107.01(g)(2) of the Zoning Code, "[d]welling" was defined as a "building designed or occupied exclusively for non - transient residential use (including one - family, two- family, or multifamily buildings)." Viviano did not reside at the Cedar Point House, but rather rented it for short terms to a series of third parties, who often used it as part of a vacation to the amusement park. In August 2011, the City issued to Viviano a cease and desist order. The or- der alleged that Viviano's rental of the Cedar Point House violated the Zoning Code. Each violation was designated a misdemeanor of the fourth degree, punishable by a $250 fine, 30 days in jail, or both. Viviano appealed to the City's Board of Zoning Appeals (the "BZA "). Referencing §§ 1107.01(g)(2) and 1129.03 of the Zoning Code, the BZA found that "the rental of an entire Dwelling, located in a Residential District on a serial basis is not permitted." Viviano again appealed to the Erie County Court of Common Pleas. There his case was consolidated with appeals from several other property owners concerning the BZA's decision regarding renting properties on the Chaussee. Viviano argued that the definition of "dwelling" pursuant to § 1107.01(g)(2) of the Zoning Code was unconstitutional under the void - for - vagueness doc- trine because it failed to provide property owners with a fair notice of what uses were permitted in the R1 -75 zoning district pursuant to § 1129.03 of the Zoning Code. Specifically, Viviano pointed to the use of the conjunction "or" and to the use of the term "non- transient" in § 1107.01(g)(2). Again, § 1107.01(g)(2) defined a "dwelling" as a "building designed or occupied exclusively for non - transient residential use . . ." (emphasis added). Viviano contended that the use of the conjunction "or" was disjunctive — meaning that the classifications on either side of "or" were to be read separately. Viviano believed that having a house meet a single listed criteria —in this case, either a building "designed" for "non- transient residen- tial use" or a building "occupied" for non - transient use —was sufficient to satisfy the Zoning Code. Viviano also contended that the term "non- transient," which was undefined in the Zoning Code, was ambiguous — potentially encompassing rentals of any time frame and potentially resulting in discriminatory enforcement. The court agreed with Viviano. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the court issued an order granting summary judgment to Viviano. The City appealed. DECISION: Affirmed. © 2013 Thomson Reuters 5