Login | April 25, 2024
Denial of homeless tent community variance not unconstitutional
TRACEY BLAIR
Legal News Reporter
Published: July 7, 2022
A Summit County trial court did not err by rejecting a charity’s argument that the Akron Zoning Code is unconstitutional for not allowing a campground/tent community for the homeless.
That’s according to the 9th District Court of Appeals, which recently affirmed the denial of a use variance by the Akron Board of Zoning Appeals.
On Sept. 17, 2018, Akron City Council denied a conditional use permit sought by The Homeless Charity, Sage Lewis LLC, and Sage Lewis to allow a homeless community at 15 Broad St., a property owned by Sage Lewis LLC. At the same time, the city created an “action plan” involving Lewis, The Homeless Charity and Continuum of Care to provide for the transition of those who had been living in the tent community to alternative housing.
However, on Dec. 6, 2018, the city issued a notice of violation/order to comply to Lewis and Sage Lewis LLC alleging a violation of Section 153.240(F) of the Akron Zoning Code because tents remained on the property, and because “[t]he operation of a campground is not permitted in a residential use district.”
On Dec. 21, 2018, the charity and Lewis appealed to the BZA, stating using tents as temporary, emergency shelter is not specifically prohibited, so the BZA has the authority to grant the variance under Section 153.404(I) of the Akron Zoning Code. During a public hearing on the appeal and request for a variance on Jan. 30, 2019, the Akron City Planning Commission argued that a “campground” was a prohibited use.
After the BZA denied the variance request, the charity and Lewis filed an administrative appeal to Summit County Common Pleas Court, which affirmed the BZA’s decision.
The appellants then appealed to the 9th District, arguing that denial of the variance violated their rights under Section 16, Article 1 of the Ohio Constitution to due course of law by depriving them of a property interest in sheltering homeless individuals in tents, noting that they “ha[d] used their property in the past and intend to use their property in the future” for the same purpose.
They also alleged the denial of the variance violated their right to substantive due process under Section 16, Article 1 of the Ohio Constitution and the 14th Amendment to the U.S. Constitution by depriving them of the ability to rescue the homeless.
In support of their argument, they cited Ross v. United States (7th Cir.1990). In Ross, the plaintiff asserted a claim under 42 U.S.C. 1983 and the 14th Amendment alleging a sheriff’s deputy “violated [her minor son’s] civil rights by interposing state power to prevent rescue.”
The case resulted from the drowning death of the youth at a municipal event along the shores of Lake Michigan.
Numerous individuals, including lifeguards, firefighters, civilians, and a police officer, who responded to a call for aid were ordered to desist by a deputy sheriff who threatened them with arrest pursuant to a department policy that prohibited civilian rescue and provided that only divers from the local fire department could rescue in the waters of Lake Michigan. The deputy’s actions resulted in significant delay.
The 7th Circuit Court of Appeals noted that while the municipality had no constitutional duty to provide rescue services, the “the state cannot arbitrarily assert its power so as to cut short a person’s life.”
In her opinion, 9th District Judge Lynne Callahan noted that in Ross, the 7th Circuit did not recognize a constitutional right to be rescued under the 14th Amendment—or to rescue—but acknowledged that arbitrary state action may unconstitutionally deprive an individual of the right to life for purposes of the 14th Amendment.
“Even apart from the fact that the situation presented by this case is readily distinguishable, this court cannot conclude that the Akron Zoning Code’s applicability in this instance is arbitrary,” Judge Callahan wrote. “To the contrary, as the record demonstrates, there is a reasonable relationship to the legitimate exercise of the city’s police power in regulating the uses to which the property at issue may be put.”
Appellate judges Jennifer Hensal and Betty Sutton concurred. The case is cited Homeless Charity v. Akron Bd. of Zoning Appeals, 2022-Ohio-1578.