I believe that the zoning resolution at issue in this case is unconstitutionally vague and exceeds the authority granted to the township by statute. Therefore, I respectfully dissent.
In order for an ordinance to survive a void for vagueness challenge, it must "give sufficient warning so that individuals may conduct themselves so as to avoid that which is prohibited by law." City of Lebanon v.McClure (1998), 44 Ohio App.3d 114, 116, citing Rose v. Locke (1975),423 U.S. 48, 96 S.Ct. 243. Ambiguities in zoning provisions that restrict the use of one's land must be construed against the zoning resolution because the enforcement of such a provision is an exercise of power that constricts property rights. Freedom Twp. Bd. of Zoning Appeals v.Portage Cty. Bd. of Mental Retardation Developmental Disabilities (1984), 16 Ohio App.3d 387, 390, citing Saunders v. Zoning Dept. (1981),66 Ohio St.2d 259.
The American Heritage Dictionary of the English Language (3 Ed. 1996) 1950 defines "unfinished" as "1. Not brought to an end; incomplete:unfinished business. 2. Not having received special processing, such as dyeing or varnishing: *Page 180 unfinished furniture." (Emphasis sic.) As the majority has already stated, Webster's Third New International Dictionary (1993) 2495 defines "unfinished" as "not finished: a: not brought to an end or to completion * * * an-house b: left in the rough state: UNPOLISHED, CRUDE-wood -steel."
Based upon the definitions provided by frequently used dictionaries, an average person's understanding of the meaning of the word "unfinished" in the context of this zoning resolution would likely be that the fence was not properly stained, varnished, or sanded. Or the word "unfinished" might be thought to mean that the fence was not complete in its construction.
I disagree with the majority's conclusion that "unfinished portion" is readily understood by the common person to refer to "the side of a picket fence showing the supporting posts and horizontal two by fours." A law is void for vagueness if persons of common intelligence must guess at its meaning. Coates v. Cincinnati (1971), 402 U.S. 611, 91 S.Ct. 1686. I would sustain appellant's first assignment of error and find that this statute is unconstitutionally vague.
Under the second and third assignments of error, appellant argues that the enacted zoning resolution exceeds the township's authority. I agree.
The fact that this resolution has been passed by a township rather than a city or other governmental unit is significant. Unlike municipalities, a township's power to enact zoning ordinances is not inherent, nor does it originate from a constitutional provision. Torok v. Jones (1983),5 Ohio St.3d 31, 32; Dsuban v. Union Twp. Bd. of Zoning Appeals (2000),140 Ohio App.3d 602, 608. "The zoning authority possessed by townships in the state of Ohio is limited to that which is specifically conferredby the General Assembly." (Emphasis added.) Bd. of Twp. Trustees ofBainbridge v. Funtime, Inc. (1990), 55 Ohio St.3d 106, paragraph one of the syllabus; Dsuban at 608.
R.C. 519.02, which grants Ohio townships their zoning authority, states, in relevant part: "For the purpose of promoting the publichealth, safety, and morals, the board of township trustees may in accordance with a comprehensive plan regulate by resolution the location, height, bulk, number of stories, and size of buildings and other structures[.]" (Emphasis added.) This court has found that, unlike municipalities, a township is without power to enact a zoning provision that is based only on the general welfare, as that term is not included in R.C. 519.02. Union Twp. Bd. of Trustees v. Old 74 Corp. (2000), 137 Ohio App.3d 289, 296, fn. 3.
Municipalities have a general police power that allows them to enact laws, including zoning regulations, to promote the general welfare. See R.C. 713.06. *Page 181 Whereas municipalities have always included urban areas, townships traditionally were comprised largely of agricultural lands. With the explosion of urban growth, townships are becoming much more urban in character. However, the legislature has not yet revised the law to reflect this change by giving townships a general police power.
In Long v. Bd. of Trustees, Liberty Twp. 1996 Ohio App. LEXIS 3704, (May 24, 1996), Delaware App. No. CA95CA-E-06-037, unreported, the Fifth District Court of Appeals examined a zoning ordinance that established a river buffer area district. The court noted that Liberty Township's aims in enacting this ordinance, which were to protect the riverfront area from the impact of land uses, were laudable. Id. at *11. However, the court determined that "[t]he condition of scenic river areas, the future growth and development of the Township, and an increasing tax base and property values concern not the public health, safety or morals, but rather the general welfare of the community." Id. at *11-12. The court found that the zoning ordinance was enacted beyond the scope of authority granted to Liberty Township by R.C. 519.02 and therefore was invalid and unenforceable. Id. at *12.
Other actions of township trustees have been enjoined where trustees attempted to exercise a power not specifically enumerated in R.C. 519.02. See Funtime, 55 Ohio St.3d 106 (finding that the power granted to townships pursuant to R.C. 519.02 did not encompass the authority to regulate the hours of operation of commercial enterprises within their jurisdiction); Fischer Development Co. v. Union Township (May 1, 2000), Clermont App. No. CA99-10-100, unreported (affirming a trial court's decision to grant a preliminary injunction to enjoin Union Township from applying zoning amendments that, among other things, changed allowable square footage of lots).
I would find that this zoning resolution, which prohibits a resident from facing an "unfinished portion" of a fence to a neighbor's property, does nothing to promote the public health, safety, or morals of the community. Therefore, I would sustain appellant's second and third assignments of error and find that this regulation is invalid and unenforceable because it exceeds the township's powers as conferred by the General Assembly in R.C. 519.02.
Based on the forgoing, I respectfully dissent. *Page 182