E-FILED
COMMON PLEAS COURT
ERIE COUNTY, OHIO
2017 Dec-I PM 4:08
LUVADA S WILSON
CLERK OF COURTS
2017 CV 0554
Ronger E Binette
IN THE COURT OF COMMON PLEAS
ERIE COUNTY, OHIO
)
JUDITH A. KINZEL, TRUSTEE, ) CASE NO: 2017 CV 0554
Plaintiff/Counterclaim Defendant, )
vs. ) JUDGE ROGER E. BINETTE
DOUGLASS EBNER, )
And )
2243 CEDAR POINT LLC, )
And ) DEFENDANTS’ ANSWER AND COUNTERCLAIMS
2253 CEDAR POINT LLC, )
Defendants/Counterclaim Plaintiffs, )
vs.
)
RICHARD L. KINZEL, )
2267 Cedar Point Road )
Sandusky, Ohio 44870 )
And
)
CITY OF SANDUSKY, )
222 Meigs Street )
Sandusky, Ohio 44870 )
New Party Counterclaim Defendants. )
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STATE EX REL. DOUGLASS EBNER )
2243 Cedar Point Road )
Sandusky, Ohio 44870 )
) VERIFIED COUNTERCLAIM:
and ) TAXPAYER’S ACTION
)
STATE EX REL. 2243 CEDAR POINT LLC )
C/O Douglass Ebner )
2243 Cedar Point Road )
Sandusky, Ohio 4487 )
)
And )
)
STATE EX REL.2253 CEDAR POINT LLC )
c/o Julia Ebner )
108 Lane D )
Sandusky, Ohio 44870 )
)
Counterclaim Plaintiffs/Relators, )
)
vs. )
CITY OF SANDUSKY, )
222 Meigs Street )
Sandusky, Ohio 44870 )
)
Counterclaim Defendant/Respondent. )
)
Serve Also: )
Ohio Attorney General )
30 E. Broad Street, 14 th Floor )
Columbus, Ohio 43215 )
Defendants Douglass Ebner, 2253 Cedar Point LLC ("2253 LLC"), and 2243 Cedar Point
LLC ("2243 LLC") (collectively, "Defendants") for their Answer to Plaintiff Judith A. Kinzel,
Trustee, Judith A. Kinzel Trust Agreement (Dated August 13, 1989, Amended on June 25, 1997,
Amended On January 5, 1999, Restated on January 17, 2002 and Amended and Restated on
September 1, 2006 and Amended on the 23 rd Day of October 2015)’s ("Plaintiff’) Complaint,
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state as follows:
PRELIMINARY STATEMENT
This case has been filed by an influential couple to control their neighbors’ lawful use of their
property and, even, to compel its sale. Plaintiff and her husband, New Party Counterclaim Defendant
Richard L. Kinzel, claim that Defendants’ renting to individuals who wish to enjoy the Cedar Point
amusement park and the adjacent beach is destroying their enjoyment of their property. They,
however, do not seem to mind or be affected by their other neighbor, Cedar Point, which is adjacent to
the other two sides of their property, and which operates a massive, commercial amusement park and
two related parking lots, all which attract thousands of transient guests, patrons, and renters from
morning until midnight. They also do not seem to mind that Cedar Point allows its transient guests to
utilize its parking lots directly across from their front door.
Plaintiffs’ real motivation in bringing this action is even more personal and vindictive, because
Plaintiff and her husband were outbid on the purchase of one of the properties in question by the Ebner
family in 2015.
To effectuate their vendetta, the couple has asked this Court to rewrite and expand certain terms
contained in various deeds which, on their face, do not prevent the renting of single-family residences,
and which are otherwise invalid and unenforceable.
In addition, Plaintiff and her husband have co-opted and pressured the City of Sandusky to attempt to
enforce two ordinances against Defendants, each of which was enacted illegally because mandatory
procedures to protect property owners were ignored. The City of Sandusky has attempted to enforce
one of these ordinances even though it previously admitted in writing and on several other occasions
that the ordinance was invalid and would not withstand a lawsuit.
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These enforcement actions were brought only against Defendants; indeed, Defendants are the only
individuals and entities to have been criminally cited under one of the invalid ordinances.
Thus, Defendants seek relief from the invalid deed restrictions and other claims and seek a
declaration that the two ordinances in issue are invalid, void, and otherwise unconstitutional. They also
seek injunctive relief, damages, and attorney’s fees for tortious interference, an illegal conspiracy, and
for the violations of their property and constitutional rights, as well as taxpayer relief under the Ohio
Revised Code.
NATURE OF THE ACTION
1. Defendants deny the allegations contained in Paragraph 1 of Plaintiffs Complaint.
2. Defendants deny the allegations contained in Paragraph 2 of Plaintiffs Complaint.
3. The allegations contained in Paragraph 3 of Plaintiffs Complaint contain legal conclusions for
which no response is required. To the extent that a response is required, Defendants state that the
relevant ordinances speak for themselves and further deny that the ordinances referenced in Plaintiffs
Complaint are valid and/or enforceable as stated in Defendants’ Counterclaims. Defendants deny the
remaining allegations contained in Paragraph 3 of Plaintiffs Complaint.
4. The allegations contained in Paragraph 4 of Plaintiffs Complaint contain legal conclusions for
which no response is required. To the extent that a response is required,
Defendants state that the relevant ordinances speak for themselves and further deny that the
ordinances referenced in Plaintiffs Complaint are valid and/or enforceable as stated in
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Defendants’ Counterclaims. Defendants deny remaining allegations contained in Paragraph 4
of Plaintiffs Complaint.
5. Defendants admit that Plaintiff resides at least part-time with her husband, New Party
Counterclaim Defendant Richard L. Kinzel (hereinafter "Mr. Kinzel" and, together with Plaintiff, the
"Kinzels") in a home located at 2267 Cedar Point Road, Sandusky, Ohio 44870.
Defendants deny the remaining allegations contained in Paragraph 5 of Plaintiffs Complaint.
PARTIES
6. In response to Paragraph 6 of Plaintiff’s Complaint, Defendants restate the foregoing
admissions, averments, and denials as if fully rewritten herein.
7. In response to the allegations of Paragraph 7, Defendants state that Exhibits A, B1, and C-1
referenced in Paragraph 7 are copies of deeds which speak for themselves. Defendants lack knowledge
or information sufficient to form a belief as to the truth or falsity of the factual allegations contained in
Paragraph 7 of Plaintiffs Complaint, and therefore, deny same. Further answering, Paragraph 7 of
Plaintiffs Complaint contains legal conclusions for which no response is required. To the extent a
response is required, Defendants deny the remaining allegations contained in Paragraph 7 of Plaintiffs
Complaint.
8. Defendants admit the allegations contained in Paragraph 8 of Plaintiffs Complaint, as Mr. Ebner
resides at 2243 Cedar Point Road with his wife and two small children.
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9. In response to the allegations of Paragraph 9, Defendants state that Exhibit D referenced in
Paragraph 9 is a copy of a plat which speaks for itself. Defendants admit that 2253 LLC is an Ohio limited
liability company, that 2253 LLC holds real property with an address of 2253 Cedar Point Road,
Sandusky, Ohio 44870, and that this real property is known as Erie
County tax parcel no. 55-00375.000. Defendants deny remaining allegations contained in
Paragraph 9 of Plaintiffs Complaint.
10. In response to the allegations of Paragraph 10, Defendants state that Exhibit D
referenced in Paragraph 10 is a copy of a plat which speaks for itself. Defendants admit that 2243
LLC is an Ohio limited liability company, that 2243 LLC holds real property with an address of 2243 Cedar
Point Road, Sandusky, Ohio 44870, and that this real property is known as Erie County tax parcel no. 55-
00294.000. Defendants deny the remaining allegations contained in
Paragraph 10 of Plaintiffs Complaint.
JURISDICTION AND VENUE
11. In response to Paragraph 11 of Plaintiffs Complaint, Defendants restate the
foregoing admissions, averments, and denials as if fully rewritten herein.
12. Defendants admit the allegations contained in Paragraph 12 of Plaintiffs Complaint.
13. Defendants admit the allegations contained in Paragraph 13 of Plaintiffs
Complaint.
FACTS COMMON TO ALL CLAIMS
14. In response to Paragraph 14 of Plaintiffs Complaint, Defendants restate the foregoing
admissions, averments, and denials as if fully rewritten herein.
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15. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of
the allegations contained in Paragraph 15 of Plaintiffs Complaint, and therefore, deny same.
16. Paragraph 16, Defendants state that Exhibit D
referenced in Paragraph 16 is a copy of a plat which speaks for itself. Defendants admit the remaining
allegations contained in Paragraph 16 of Plaintiffs Complaint.
17. Defendants deny that Lot 13 is owned and controlled by Mr. Ebner through 2253 Cedar Point
LLC and admit the remaining allegations contained in Paragraph 17 of Plaintiffs Complaint.
18. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of
the allegations contained in Paragraph 18 of Plaintiffs Complaint, and therefore, deny same.
19. In response to the allegations of Paragraph 19, Defendants state that Exhibit A referenced in
Paragraph 19 includes copies of deeds which speak for themselves. Further answering, the allegations
contained in Paragraph 19 of Plaintiffs Complaint contain legal conclusions for which no response is
required. To the extent that a response is required, Defendants lack knowledge or information sufficient
to form a belief as to the truth or falsity of the allegations contained in Paragraph 19 of Plaintiffs
Complaint, and therefore, deny same.
20. In response to the allegations of Paragraph 20, Defendants state that Exhibits B and B-l
referenced in Paragraph 20 are copies of deeds which speak for themselves. Further answering, the
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allegations contained in Paragraph 20 of Plaintiffs Complaint contain legal conclusions for which no
response is required. To the extent that a response is required, Defendants lack knowledge or
information sufficient to form a belief as to the truth or falsity of the allegations contained in Paragraph
20 of Plaintiffs Complaint, and therefore, deny same.
21. In response to the allegations of Paragraph 21, Defendants state that Exhibits C and C-1
referenced in Paragraph 21 are copies of deeds which speak for themselves. Further
answering, the allegations contained in Paragraph 21 of Plaintiff’s Complaint contain legal
conclusions for which no response is required. To the extent a response is required, Defendants lack
knowledge or information sufficient to form a belief as to the truth or falsity of the allegations
contained in Paragraph 21 of Plaintiffs Complaint, and therefore, deny same.
22. In response to the allegations of Paragraph 22, Defendants state that Exhibits B-l and C-l
referenced in Paragraph 22 are copies of deeds which speak for themselves. Further answering, the
allegations contained in Paragraph 22 of Plaintiffs Complaint contain legal conclusions for which no
response is required. To the extent a response is required, Defendants deny the remaining allegations
contained in Paragraph 22 of Plaintiff’s Complaint.
23. In response to the allegations of Paragraph 23, Defendants state that Exhibits B-l
and C-1 referenced in Paragraph 23 are copies of deeds which speak for themselves. Further answering,
the allegations contained in Paragraph 23 of Plaintiffs Complaint contain legal conclusions for which no
response is required. To the extent a response is required, Defendants deny the remaining allegations
contained in Paragraph 23 of Plaintiffs Complaint.
24. In response to the allegations of Paragraph 24, Defendants state that Exhibits B-l
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and C-1 referenced in Paragraph 24 are copies of deeds which speak for themselves. Further answering,
the allegations contained in Paragraph 24 of Plaintiffs Complaint contain legal conclusions for which no
response is required. To the extent a response is required, Defendants
deny that the deeds referenced in Paragraph 24 of Plaintiffs Complaint constitute "restrictive
covenants" and specifically deny that Defendants are in violation of any such restrictions. Further
answering, Defendants deny the remaining allegations contained in Paragraph 24 of
Plaintiffs Complaint.
25. In response to the allegations of Paragraph 25, Defendants state that the exhibits
referenced in Paragraph 25 are written documents, the terms of which speak for themselves. Further
answering, the allegations contained in Paragraph 25 of Plaintiffs Complaint contain legal conclusions
for which no response is required. To the extent a response is required, Defendants deny the remaining
allegations contained in Paragraph 25 of Plaintiff’s Complaint.
26. In response to Paragraph 26 of Plaintiff’s Complaint, Defendants state that Exhibit E referenced
in Paragraph 26 is a copy of Sandusky Ordinance No. 12-107, the terms of which speak for themselves.
Defendants deny the remaining allegations contained in Paragraph 26 of Plaintiffs Complaint, including
but not limited to any allegations pertaining to the validity, applicability, enforceability,
constitutionality, and/or purpose of said purported ordinance.
27. In response to Paragraph 27 of Plaintiff’s Complaint, Defendants state that Exhibit F referenced
in Paragraph 27 is a copy of Sandusky Ordinance No. 17-088, the terms of which speak for themselves.
Defendants deny the remaining allegations contained in Paragraph 27 of Plaintiffs Complaint, including
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but not limited to, any allegations pertaining to the validity, applicability, enforceability,
constitutionality, and/or purpose of said purported ordinance.
28. In response to Paragraph 28 of Plaintiffs Complaint, Defendants state that Exhibit F referenced
in Paragraph 28 is a copy of Sandusky Ordinance No. 17-088, the terms of which speak for themselves.
Defendants deny the remaining allegations contained in Paragraph 28 of Plaintiffs Complaint, including
but not limited to, any allegations pertaining to the validity, applicability, enforceability,
constitutionality, and/or purpose of said purported ordinance.
29. In response to Paragraph 29 of Plaintiff’s Complaint, Defendants state that
Exhibit G referenced in Paragraph 29 is a copy of a City of Sandusky zoning map and that Ordinance No.
12-088 (Ex. F) and the Sandusky Planning and Zoning Code are written documents, the terms of which
speak for themselves. Defendants deny the remaining allegations contained in Paragraph 29 of Plaintiffs
Complaint, including but not limited to, any allegations pertaining to the validity, applicability,
enforceability, constitutionality, and/or purpose of said purported ordinance.
30. In response to Paragraph 30 of Plaintiff’s Complaint, Defendants state that
Exhibit F referenced in Paragraph 30 is a copy of Sandusky Ordinance No. 17-088, the terms of which
speak for themselves. Defendants deny the remaining allegations contained in Paragraph 30 of
Plaintiff’s Complaint, including but not limited to, any allegations pertaining to the validity, applicability
and/or purpose of said purported ordinance.
31. In response to Paragraph 31 of the Complaint, Defendants admit that they have
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used and continue to use Lot 13 for short term rentals, and admit that Lot 12 recently appeared in an
online advertisement. Defendants deny the remaining allegations contained in Paragraph 31 of
Plaintiffs Complaint.
32. In response to Paragraph 32 of Plaintiffs Complaint, Defendants state that
Exhibits H and I referenced in Paragraph 32 are copies of website printouts, the terms of which speak
for themselves. Defendants deny the remaining allegations contained in Paragraph 32 of Plaintiffs
Complaint.
33. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of
the allegations contained in Paragraph 33 of Plaintiffs Complaint, and therefore, deny same.
34. In response to Paragraph 35 of Plaintiff’s Complain, Defendants admit that Lots
12 and 13 are not situated within a "Transient Occupancy Overlay District," as none exists today.
35. Defendants admit the allegations contained in Paragraph 35 of Plaintiffs Complaint.
36. In response to Paragraph 36 of Plaintiffs Complaint, Defendants admit that they have rented the
residence on Lot 13 for periods that could be less than thirty (30) consecutive days, and that Lot 12
recently appeared in an online advertisement. Defendants deny the remaining allegations contained in
Paragraph 36 of Plaintiff’s Complaint.
37. Defendants admit the allegations contained in Paragraph 37 of Plaintiff’s Complaint.
38. Defendants deny the allegations contained in Paragraph 38 of Plaintiffs Complaint.
39. Defendants deny the allegations contained in Paragraph 39 of Plaintiffs Complaint.
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40. In response to Paragraph 40 of Plaintiffs Complaint, Defendants admit that
Exhibit J referenced in Paragraph 40 is a copy of a written document, the terms of which speak for
themselves. Further answering, Defendants state that when Defendants inquired of the city of
Sandusky as to Exhibit J, Defendants were told that it was a warning. Defendants admit that the City of
Sandusky filed criminal citations against one or more of Defendants. Defendants deny the remaining
allegations contained in Paragraph 40 of Plaintiffs Complaint.
COUNT 1:
BREACH OF RESTRICTIVE COVENANTS
41. In response to Paragraph 41 of Plaintiffs Complaint, Defendants restate the
foregoing admissions, averments, and denials as if fully rewritten herein.
42. In response to Paragraph 42 of Plaintiff’s Complaints, Defendants state that the
deeds referenced therein are written documents, the terms of which speak for themselves.
Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the
remaining allegations contained in Paragraph 42 of Plaintiff’s Complaint, and therefore, deny
same.
43. Paragraph 43 of Plaintiffs Complaint contains legal conclusions for which no response is
required. To the extent that a response is deemed necessary, Defendants deny the allegations
contained in Paragraph 43 of Plaintiffs Complaint.
44. Defendants deny the allegations contained in Paragraph 44 of Plaintiffs Complaint.
45. Defendants deny the allegations contained in Paragraph 45 of Plaintiffs Complaint.
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46. Defendants deny the allegations contained in Paragraph 46 of Plaintiffs Complaint.
47. Defendants deny the allegations contained in Paragraph 47 of Plaintiffs
Complaint.
COUNT 11:
VIOLATION OF SANDUSKY ORDINANCE NOS. 12-107 AND 17-088
48. In response to Paragraph 48 of Plaintiffs Complaint, Defendants restate the foregoing
admissions, averments, and denials as if fully rewritten herein.
49. In response to Paragraph 49 of Plaintiffs Complaint, Defendants state that
Exhibit E referenced in Paragraph 49 is a copy of Sandusky Ordinance No. 12-107, the terms of which
speak for themselves. Defendants deny all other allegations contained in Paragraph 49,
including but not limited to any allegations that Ordinance No. 12-107 was properly enacted or
pertaining the validity, applicability, enforceability, constitutionality, and/or purpose of said purported
ordinance.
50. In response to Paragraph 50 of Plaintiffs Complaint, Defendants admit that
Exhibit F referenced in Paragraph 50 is a copy of Sandusky Ordinance No. 17-088, the terms of
which speak for themselves. Further answering, Defendants state that Section 1341.32 is not part of the
Sandusky Zoning Code but, rather, is part of the Building Code. Defendants deny all other allegations
contained in Paragraph 50, including but not limited to, any allegations that Ordinance No. 17-088 was
properly enacted or pertaining to the validity, applicability, enforceability, constitutionality, and/or
purpose of said purported ordinance.
51. In response to Paragraph 51 of Plaintiff’s Complaint, Defendants state that Exhibit G referenced
in Paragraph 51 is a copy of a City of Sandusky zoning map, the terms of which speak for themselves.
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Further answering, Defendants state that Ordinance No. 17-088 speaks for itself and deny all other
allegations contained in Paragraph 51, including but not
limited to, any allegations that Ordinance No. 17-088 was properly enacted or pertaining to the validity,
applicability, enforceability, constitutionality, and/or purpose of said purported
ordinance.
52. In response to Paragraph 52 of Plaintiffs Complaint, Defendants state that
Exhibit F referenced in Paragraph 52 is a copy of Ordinance No. 17-088, the terms of which speak for
themselves. Defendants deny all other allegations contained in Paragraph 52, including
but not limited to, any allegations that Ordinance No. 17-088 was properly enacted or pertaining to the
validity, applicability, enforceability, constitutionality, and/or purpose of said purported
ordinance.
53. Defendants deny the allegations contained in Paragraph 53 of Plaintiff’s
Complaint.
54. Defendants admit the allegations contained in Paragraph 54 of Plaintiffs
Complaint.
55. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of
the allegations contained in Paragraph 55 of Plaintiffs Complaint, and therefore, deny same.
56. In response to Paragraph 56 of Plaintiff’s Complaint, Defendants admit that Lots
12 and 13 are not situated within a "Transient Occupancy Overlay District," as none exists today.
57. Defendants deny the allegations contained in Paragraph 57 of Plaintiffs Complaint.
58. In response to Paragraph 58 of Plaintiffs Complaint, Defendants state that
Exhibit F referenced in Paragraph 58 is a copy of Ordinance No. 17-088, the terms of which
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speak for themselves. Further answering, Defendants state that Section 1341.32 is not part of the
Sandusky Zoning Code but, rather, is part of the Building Code. Defendants deny all other allegations
contained in Paragraph 58, including but not limited to, any allegations pertaining to the validity,
applicability, enforceability, constitutionality, and/or purpose of said purported ordinance.
59. Defendants deny the allegations contained in Paragraph 59 of Plaintiffs Complaint.
60. Defendants deny the allegations contained in Paragraph 60 of Plaintiff’s
Complaint.
61. Defendants deny the allegations contained in Paragraph 61 of Plaintiffs
Complaint.
COUNT 111:
ABSOLUTE NUISANCE – STATUTORY VIOLATIONS
62. In response to Paragraph 62 of Plaintiffs Complaint, Defendants restate the
foregoing admissions, averments, and denials as if fully rewritten herein.
63. Defendants deny the allegations contained in Paragraph 63 of Plaintiffs Complaint.
64. Defendants deny the allegations contained in Paragraph 64 of Plaintiffs Complaint.
65. Defendants deny the allegations contained in Paragraph 65 of Plaintiffs
Complaint.
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COUNT IV:
ABSOLUTE NUISANCE – INTENTIONAL ACTS
66. In response to Paragraph 66 of Plaintiffs Complaint, Defendants restate the foregoing
admissions, averments, and denials as if fully rewritten herein.
67. Defendants deny the allegations contained in Paragraph 67 of Plaintiffs Complaint.
68. Defendants deny the allegations contained in Paragraph 68 of Plaintiffs Complaint.
69. Defendants deny the allegations contained in Paragraph 69 of Plaintiffs
Complaint.
COUNT V:
OUALIFIED NUISANCE
70. In response to Paragraph 70 of Plaintiffs Complaint, Defendants restate the
foregoing admissions, averments, and denials as if fully rewritten herein
71. Defendants deny the allegations contained in Paragraph 71 of Plaintiffs Complaint.
72. Defendants deny the allegations contained in Paragraph 72 of Plaintiffs Complaint.
73. Defendants deny the allegations contained in Paragraph 73 of Plaintiffs
Complaint.
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COUNT VI:
PRELIMINARY AND PERMANENT INJUNCTION
74. In response to Paragraph 74 of Plaintiffs Complaint, Defendants restate the
foregoing admissions, averments, and denials as if fully rewritten herein.
75. Defendants deny the allegations contained in Paragraph 75 of Plaintiffs Complaint.
76. Defendants deny the allegations contained in Paragraph 76 of Plaintiffs
Complaint.
77. Defendants deny the allegations contained in Paragraph 77 of Plaintiffs
Complaint.
78. Defendants deny the allegations contained in Paragraph 78 of Plaintiffs
Complaint.
79. Defendants deny the allegations contained in Paragraph 79 of Plaintiffs
Complaint.
COUNT Vll:
PUNITIVE DAMAGES
80. In response to Paragraph 80 of Plaintiffs Complaint, Defendants restate the
foregoing admissions, averments, and denials as if fully rewritten herein.
81. Defendants deny the allegations contained in Paragraph 81 of Plaintiffs Complaint.
82. Defendants deny the allegations contained in Paragraph 82 of Plaintiffs Complaint.
83. Defendants deny the allegations contained in Paragraph 83 of Plaintiffs
Complaint.
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AFFIRMATIVE DEFENSES
1. Plaintiffs’ claims are barred in whole or in part by Plaintiffs failure to comply
with the Local Rules of the Erie County Court of Common Pleas, and Local Rule 6.01(A) in particular.
2. Plaintiffs Complaint fails to state a claim against Defendants upon which relief can be
granted.
3. Plaintiffs’ claims are barred in whole or in part for failure to join indispensable
and/or necessary parties as defendants in this matter.
4. Plaintiffs’ claims are barred in whole or in part by Plaintiffs lack of standing.
5. Plaintiffs’ claims are barred in whole or in part by a lack of mutual interest in the
enforcement of the alleged deed restrictions and/or by Plaintiffs lack of an equitable interest in
Defendants’ adherence to the restrictions.
6. Plaintiffs’ claims are barred in whole or in part by the doctrines of abandonment, laches, waiver,
and/or estoppel.
7. Plaintiff’s claims are barred in whole or in part because of a substantial change in
the character of the area in question.
8. Plaintiff’s claims are barred in whole or in part where the alleged deed restrictions upon
which they are based were not preserved and/or by the doctrine of merger by deed.
9. Plaintiff’s claims are barred in whole or in part where the alleged deed restrictions upon
which they are based do not prohibit the rental of the real property in issue.
10. Plaintiff’s claims are barred in whole or in part by the doctrine of unclean hands.
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11. Plaintiff’s claims are barred in whole or in part by lack of notice.
12. Plaintiff’s claims are barred in whole or in part because of Plaintiffs interference
with Defendants’ free use of their land.
13. Plaintiffs claims are barred in whole or in part by the applicable statute of limitations.
14. Plaintiffs claims are barred in whole or in part by Plaintiffs assumption of risk and own
negligence and the doctrine of coming to the nuisance.
15. Plaintiffs claims are barred in whole or in part by lack of injury and/or damages.
16. The damages alleged in Plaintiffs Complaint were not the proximate and/or a
direct result of any action or inaction of Defendants and Plaintiff is therefore barred from recovering
from Defendants.
17. Plaintiffs claims are barred in whole or in part by a lack of irreparable harm.
18. To the extent that Plaintiff failed to use reasonable efforts to mitigate damages,
Plaintiffs’ recovery is barred in whole or in part.
19. Plaintiffs claims are barred in whole or in part because Plaintiff is unlikely to
prevail on the merits.
20. Plaintiff’s claims are barred in whole or in part because the granting of relief will
cause greater harm to others and/or is against the public interest.
21. Plaintiff’s claims are barred in whole or in part because the ordinances she seeks
to enforce were not validly enacted and are void.
22. Plaintiffs claims are barred in whole or in part because the ordinances she seeks to
enforce violate the Due Process Clauses of the Ohio and United States Constitutions.
23. Plaintiffs claims are barred in whole or in part because the ordinances she seeks
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to enforce were not validly enacted and are void.
24. Plaintiffs claims are barred in whole or in part because the ordinances she seeks to enforce
violate the Due Process Clauses of the Ohio and United States Constitutions.
25. Plaintiffs claims are barred in whole or in part because the ordinances she seeks
to enforce are vague and otherwise unconstitutional on their face under the Ohio and United
States Constitutions.
26. Plaintiffs claims are barred in whole or in part because the ordinances she seeks
to enforce are unconstitutional as applied to Defendants under the Ohio and United States
Constitutions.
27. Plaintiffs claims are barred in whole or in part because they interfere with Defendants
constitutionally-protected property rights under the Ohio and United States Constitutions.
28. Plaintiffs claims are barred in whole or in part where enforcement of the ordinances complained
of constitute an abuse of corporate powers under the Ohio and United States Constitutions and
law.
claims would constitute a taking under the Plaintiffs claims are barred in whole or in part because they
interfere with Defendant’s constitutionally-protected property rights under the Ohio and United States
Constitutions.
29. Plaintiffs claims are barred in whole or in part where enforcement of the
ordinances ordinances raised by Plaintiff would constitute an unlawful selective enforcement and/or
deprive
Defendants of the equal protection of the laws under the Ohio and United States Constitutions.
30. Defendants respectfully reserve the right to amend their Answer to Plaintiffs
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Complaint to add such additional defenses, affirmative defenses, cross-claims, counterclaims, and/or
third party claims as may become necessary based upon discovery during the course of the above-
captioned matter.
31. Defendants incorporate as affirmative defenses the allegations and claims set forth in
their Counterclaims.
COUNTERCLAIMS
For their Counterclaims against Judith A. Kinzel, Trustee ("Plaintiff’), their Counterclaims against
New Party Counterclaim Defendants Richard L. Kinzel ("Mr. Kinzel") and the City of Sandusky (the
"City" or "Sandusky"), and for their taxpayer action on behalf of themselves and all of the Sandusky
residents and taxpayers against the City, Douglass Ebner
("Mr. Ebner"), 2243 Cedar Point LLC ("2243 LLC"), and 2253 Cedar Point LLC ("2253 LLC")
(Mr. Ebner, together with 2243 LLC and 2253 LLC, referred to as "Defendants") state as
follows:
PARTIES
1. Defendants incorporate Paragraphs 1 through 83 of their foregoing Answer and
Affirmative Defenses as if fully re-written herein.
2. Mr. Ebner is an individual domiciled in the State of Ohio. Mr. Ebner resides at
2243 Cedar Point Road, Sandusky, Ohio 44870.
3. 2243 LLC is a domestic limited liability company. 2243 LLC holds title to certain
real property located at 2243 Cedar Point Road, Sandusky, Ohio 44870, identified as Erie County tax
parcel no. 55-00294.000, and known as Lot 12 of the Replatted Laguna Subdivision No. 1 ("Lot 12").
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4. 2253 LLC is a domestic limited liability company. 2253 LLC holds title to certain real
property located at 2253 Cedar Point Road, Sandusky, Ohio 44870, identified as Erie County tax
parcel no. 55-00375.000, and known as Lot 13 of the Replatted Laguna Subdivision No. 1 ("Lot 13").
5. Plaintiff is an individual domiciled in the State of Ohio. Upon information and
belief, Plaintiff resides with her husband, New Party Counterclaim Defendant Richard L. Kinzel,
at least part-time at 2267 Cedar Point Road, Sandusky, Ohio 44870. The real property described in this
paragraph is identified as Erie County tax parcel no. 55-00101.000 and known as Lots 14 and 15 of the
Replatted Laguna Subdivision.
6. Mr. Kinzel is an individual domiciled in the State of Ohio. Upon information and belief,
Mr. Kinzel resides with Plaintiff, his wife, at least part-time at 2267 Cedar Point Road, Sandusky, Ohio
44870. Mr. Kinzel and his wife, individually and as trustee, are collectively referred to as the
"Kinzels."
7. The City is a chartered municipal corporation organized and operating under
Article 18, Section 3 of the Ohio Constitution, with the power to sue and be sued. The City is
located in Erie County, Ohio.
NATURE OF THE ACTION
8. This is an action, in part, for declaratory judgment pursuant to R.C. Chapter 2721
and Ohio Civil Rule 57 to declare certain Sandusky ordinances, specifically Ordinance Nos. 12-
127 and 17-088, invalid and void because they were illegally enacted, and because they are
otherwise unconstitutional on their face and unconstitutional as applied to Defendants under the Ohio
and United States Constitutions.
9. Defendants also seek damages resulting from an unlawful conspiracy pursuant to
which the Kinzels and the City have deprived Defendants of the full use and enjoyment of their
properties, and caused criminal citations to be issued against Defendants without justification or cause.
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10. Further, Defendants seek to enjoin the City’s selective enforcement of the
Sandusky Zoning Code against Defendants without justification or a rational basis, as such conduct has
deprived Defendants of the equal protection of the laws, has otherwise deprived
Defendants of their right to due process of law, and constitutes an unlawful taking.
11. Defendants also bring a taxpayer’s action on behalf of themselves and the taxpayers of
the City seeking to enjoin the City’s abuse of its corporate powers, which result from the City’s
attempts to enforce the aforementioned invalid and void ordinances.
JURISDICTION AND VENUE
12. Defendants incorporate the above paragraphs as if fully rewritten herein.
13. Jurisdiction is proper under R.C. 2721.03 and under R.C. 2305.01 as the amount in
controversy exceeds $25,000.
14. Jurisdiction is also proper under R.C. 2307.382 as the City and the Welo’s have
caused tortious injury by acts and omissions within the State of Ohio, and as the Kinzels and
Defendants have interests in and possess real property within the State of Ohio.
15. Venue is proper under Civ. R. 3 because Plaintiff and the City conducted activity
that gives rise to Defendants’ claims for relief in Erie County, and because the real property in issue is
situated in Erie County.
FACTS COMMON TO ALL COUNTERCLAIMS
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16. Due to the City’s location and the Cedar Point amusement park therein, tourism makes
up a large part of Sandusky’s economy.
17. The City’s entertainment and tourism locale extends to the narrow isthmus of land
that connects the Cedar Point amusement park peninsula to State Route 6, which is more commonly
known as the Cedar Point Chaussee (the "Chaussee").
18. The Chaussee is considered to be a "back entrance" to Cedar Point and the roadway
along the Chaussee is a major thoroughfare to and from Cedar Point.
19. The homes located along the Chaussee were traditionally summer cottages, but
have more recently become large vacation homes or full-time residences.
20. These homes have a long history of being rented during the summer season and/or
being used as weekend and summertime destinations for the owners and their family and guests.
21. The properties at issue in this case are located at the very northern end of the
Chaussee, coterminous on two sides with the Cedar Point amusement park and its parking lots, in a
noisy, commercial, amusement area, which is heavily traversed by transient amusement park patrons
and transient guests.
22. The Cedar Point amusement park, which is directly adjacent to the property owned by
Plaintiff, is specifically zoned to permit transient rental use.
THE 2011 LITIGATION
23. The City’s first attempt to restrict Mr. Ebner’s use and enjoyment of his rental properties
along and around the Chaussee began on or about August 4, 2011.
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24. On August 4, 2011, the City issued Notice of Violation/Cease and Desist Orders to Mr.
Ebner and his family based upon the rental of four properties, which are separate and distinct from
those implicated by Plaintiffs claims.
25. When these Cease-and-Desist Orders were issued, the City took the position that these
rentals were prohibited by the Sandusky Zoning Code.
26. Mr. Ebner and the other defendants in that action challenged the City’s position
before the Zoning Board, which ruled in favor of the City.
27. The Zoning Board’s ruling was appealed in the Erie County Court of Common
Pleas.
28. On August 21, 2012, the Erie County Court of Common Pleas issued a Judgment
Entry in which it found that the City ordinance under which Mr. Ebner was cited was void for vagueness
and violated the Due Process Clauses of the Ohio and United States Constitutions.
29. In particular, the court held that the terms "non-transient" and "dwelling," as defined in
the Sandusky Zoning Code, were unconstitutionally vague and that the City’s attempt to enforce the
provisions constituted a taking. A true and accurate copy of this judgment entry is
attached as Exhibit A.
30. The City appealed the trial court’s ruling to the Sixth District Court of Appeals.
31. While the appeal was pending, the Sandusky City Commission purported to enact
Ordinance No. 12-107 to repeal and amend the zoning code provisions that the trial court had
stricken.
32. The City did not comply with any of the mandatory legislative procedures required to
enact or amend a zoning ordinance prior to purportedly enacting Ordinance No. 12-107.
33. Because the City failed to comply with these mandatory procedures in attempting
26
to enact Ordinance No. 12-107, the ordinance is illegal, void, and did not operate to amend the previous
code, which was on appeal.
34. The City did not notify the Sixth District Court of Appeals that it had purportedly
repealed the ordinance sections on appeal and replaced them with Ordinance No. 12-107, while the
appeal was pending.
35. Then, on June 14, 2013, approximately seven months after Ordinance No. 12-107
was purportedly enacted, the Sixth District Court of Appeals affirmed the trial court’s order, holding that
the original Sandusky Zoning Code, and its use of the term "non-transient" as applied to rental
properties, was unconstitutionally vague. See Ebner v. Sandusky, 6th Dist. Erie
No. E-12-057, 2013-Ohi0-2475.
SANDUSKY ORDINANCE NO. 12-107
36. The failure to notify the Court of Appeals of the enactment of Ordinance No. 12107 was
part of the City’s mistaken plan to have it both ways, by enacting a stop gap ordinance without
following proper procedures to be in effect pending the outcome of the Court of
Appeals’ decision.
37. Ordinance No. 12-107 purported to amend the definition of "dwelling" in the
Sandusky Zoning Code to include "a building occupied exclusively for non-transient residential
use" and to create a definition for "non-transient" as "a period of not less than 365 days." It also
added a definition for ‘transient occupancy" as "occupancy when it is the intention of the parties
that the occupancy will be temporary." The ordinance also states it creates a "rebuttable
presumption that, when the dwelling unit occupied is not the sole residence of the guest, the occupancy
is transient." A true and accurate copy of Ordinance No. 12-107 is attached as Exhibit
27
B.
38. In attempting to enact Ordinance No. 12-107, the City failed to comply with any of the
mandatory procedures set forth in Chapter 1113 of the City’s municipal code for the valid
enactment or amendment of zoning ordinances.
39. The City’s failures to comply with its legislative mandates include, but are not limited to,
the following:
a. The City did not refer Ordinance No. 12-107 to the Planning Commission prior to taking
legislative action;
b. The City did not obtain a recommendation and report from the Planning Commission at any
time prior to enacting the ordinance;
c. The City did not provide at least thirty (30) days notice of a public hearing to address
Ordinance No. 12-107;
d. The City did not make the text or a copy of Ordinance No. 12-107 available in the office of
the Clerk of the Planning Commission for a period of thirty (30) days prior to a public
hearing on the ordinance; and
e. The City did not hold a public hearing as required by law.
40. Thus, Ordinance No. 12-107 is invalid and illegal.
DEFENDANTS PURCHASE LOT 12 AND LOT 13
41. Mr. Ebner purchased Lot 12 via a Warranty Deed recorded on or about April 19,
2013 as Erie County Instrument No. 201304254, and refiled on May 24, 2013 as Erie County
Instrument No. 201305575. Mr. Ebner subsequently conveyed title to Lot 12 to 2243 LLC via quitclaim
deed recorded September 1, 2015 as Erie Country Instrument No. 201507866. Copies
of deeds for Lot 12 are attached to Plaintiffs Complaint as Exhibit C.
42. Mr. Ebner’s mother purchased Lot 13 via a deed recorded April 29, 2015 as Erie
County Instrument No. 201503513. Ms. Ebner subsequently conveyed title to Lot 13 to 2253
LLC via a quitclaim deed recorded November 30, 2015 as Erie County Instrument No.
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201510700. Copies of deeds for Lot 13 are attached to Plaintiff’s Complaint as Exhibit B.
43. This sale resulted when, Plaintiff’s neighbor, who was also Mr. Ebner’s neighbor, put Lot 13 on
the market and both the Kinzels and Mr. Ebner, along with his mother, non-party
Julia R. Ebner, put bids in on the property. When the Kinzels failed to outbid the Ebners, the property
was sold to them with Julia R. Ebner taking title.
44. Mr. Ebner has used the single-family home on Lot 12 as his personal residence,
where he resides with his wife and family. Since purchasing Lot 12, Mr. Ebner has remodeled and
improved the single-family home located on the parcel at great personal expense. Defendants have
previously rented Lot 12 to vacationers for periods of less than thirty (30) consecutive days
when Mr. Ebner is on vacation.
45. Since purchasing Lot 13, Defendants have remodeled and improved the single family home
located on the parcel at great personal expense. Defendants have used the single
family home on Lot 13 as a rental property.
46. Because he resides next to Lot 13 with his wife and family, Mr. Ebner monitors the renters on
Lot 13 and there have been no reported instances of loud, lewd, or nuisance-type behaviors on this
property.
THE LOCATION OF THE PROPERTIES
47. Lot 13 is situated to the southeast of certain real estate owned by Plaintiff and
located at 2267 Cedar Point Road, Sandusky, Ohio 44870, which is known as Erie County tax
parcel no. 55-00101.00 (the "Kinzel Home Property"). Lot 13 and the Kinzel Home Property
abut one another and share a border along the southeast boundary of the Kinzel Home Property.
29
48. Lot 12 is situated to the southeast of Lot 13. Lot 12 and Lot 13 abut one another
and share a border along the southeast border of Lot 13.
49. The Kinzel Home Property, Lot 12, and Lot 13 are situated along the northwest terminus of the
Chaussee, directly abutting the Cedar Point amusement park and a number of parking lots used daily
by thousands of Cedar Point’s transient residents and patrons, and in an area subject to consistent
pedestrian and vehicle traffic by Cedar Point patrons and its transient guests.
50. The Cedar Park amusement park is situated directly to the north of and adjacent to
the Kinzel Home Property, which is zoned for commercial amusement, and the park owns or maintains
hotels, camper facilities, and employee dorms, as its property is zoned for transient
rental use. See Exhibit G to Plaintiffs Complaint.
51. Due to the immediate proximity to Cedar Point and its parking lots, the area in which the Kinzel
Home Property, Lot 12, and Lot 13 are situated is a noisy, loud commercial area with roller coasters,
yells and screams from patrons, and persistent transient vehicle traffic across the drive from, and
transient guests walking adjacent to, the Kinzel Home Property.
52. Moreover, just north of the Kinzel Home Property’s "private beach," fireworks are detonated at
or around 10:30 to 11:00 p.m. many nights in July and August, and at other times throughout the
summer.
53. The character of the area in which the Kinzel Home Property is situated is due, in
part, to Mr. Kinzel’s leadership of Cedar Point for two decades during which the Cedar Point
amusement park and its transient rental facilities grew and the number of transient guests
attracted to the area greatly increased.
30
54. The locations of the Kinzel Home Property, Lot 12, and Lot 13 relative to one
another and relative to the Cedar Point amusement park and parking lots are depicted in the
below image, retrieved from the Erie County Auditor’s website, which highlights Lot 13 with the Kinzel
Home Property directly to the northwest, Lot 12 directly to the southeast, and the Cedar Point
amusement park and its parking lots directly adjacent to each of the three properties:
55. Due to the substantial commercial development of Cedar Point, the area, including the parcels
in question, has grown to become a highly commercialized, developed, noisy, crowded, transient
area surrounded by parking lots and an amusement park, and is entirely
different from the secluded residential-type areas for which the residential zoning code provisions were
intended.
THE CITY ADMITS THAT ORDINANCE NO. 12-107 IS INVALID BUT
NEVERTHELESS, CITES DEFENDANTS FOR PURPORTED VIOLATIONS
56. Since the Kinzels were disgruntled about being outbid for Lot 13 when the rentals began in the
spring of 2015, they immediately started complaining to the City about alleged violations of the
Sandusky Zoning Code and about Defendants’ negotiations for Lot 13. Indeed, the Kinzels attempted
to engender ill will against the Defendants among City officials by falsely stating that the Defendants
31
told the Kinzels that they would make Lot 13 their primary residence when, in fact, Defendants
made no such statements to the Kinzels. This statement demonstrates
that the Kinzels’ real motive is to harass their neighbors and try to cause them to sell their property.
57. Thereafter, Mr. Kinzel, on behalf of himself and Plaintiff, continually complained
to the City that it was failing to enforce Ordinance No. 12-107 against Defendants.
58. As a result of these complaints, the City sent a notice to Defendants on August 6,
2015 notifying them that "if you are found to be operating a transient rental that is not
determined to be a legal non-conforming use, Planning Staff will issue a violation notice and you
will be required to discontinue all transient rental at this location." (See August 6, 2015 letter, attached
as Exhibit C.)
59. Upon information and belief, in June 2015, the City Planning Commission staff
had begun working on a new ordinance relating to short term rentals in an attempt to cure the illegality
and unenforceability ofthe prior ordinances.
60. Upon information and belief, the City and the Kinzels were aware before the
August 6, 2015 notice was issued that Ordinance No. 12-107 was illegal, void, and unenforceable.
61. On September 25, 2015, Mr. Ebner and his mother, Julia Ebner, met with City personnel,
including Casey Sparks, Angela Byington, and Eric Wrobster, during which these officials acknowledged
the deficiencies in the Ordinance No. 12-107 and the Sandusky Zoning Code.
62. These officials also agreed that the existing rental activities on Lot 12 and Lot 13 would be
grandfathered in once new ordinances were written and adopted.
63. These admissions were reaffirmed when, in early 2016, the City’s planning staff conceded in a
public document that an extensive review by the City concluded that Ordinance
No. 12-107 was unlawful and would not withstand a legal challenge.
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64. The City’s staff document stated, "After a thorough review, staff members do not
believe that the current definition of transient or non-transient use will withstand a lawsuit if
challenged. The current definition states any transient use to be less than 365 days, staff believes
that this definition needs to be refined to clearly identify between a yearly rental and a transient
use." A true and accurate copy of this document, which was provided in response to a public records
request, is attached as Exhibit D.
65. Indeed, upon information and belief, a Sandusky commissioner stated to a
resident of the City interested in short term rentals that the City did not have a leg to stand on in
attempting to enforce Ordinance No. 12-107 at the insistence of the Kinzels, and that the City
would have to amend this ordinance and then grandfather all short term rental properties in after
the new ordinance was enacted.
66. Nevertheless, after the vacation rentals commenced during the 2016 Cedar Point season, Mr.
Kinzel again began sending numerous complaints regarding short term rentals at
2253 Cedar Point Road, complaining that Ordinance No. 12-107 was not being enforced.
67. As a result, on June 28, 2016, another warning letter was sent to Mr. Ebner
regarding short term rentals on Lot 13 and requesting that such activities cease.
68. The June 28, 2016 letter was issued even though its author had indicated on at
least two occasions that it was understood that the ordinance upon which the notice was predicated
was invalid.
69. The Kinzels continued to almost weekly send in complaints and pressured the
City to enforce the invalid ordinance against Defendants.
70. As a result of this pressure, and even though it had clearly admitted that the ordinance was
invalid, the City issued notices of violation to the owners of Lot 13 in September
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of 2016 and then again on October 7, 2016.
71. The City has attempted to formally enforce Ordinance No. 12-107 against Defendants only. It
has not issued formal notices of violations to similarly situated property
owners or to those who also rent or use single family homes in Sandusky for periods of less than 365
days.
72. The City attempted to enforce Ordinance No. 12-107 against Defendants in bad
faith and to appease the complaints and demands of Plaintiff and Mr. Kinzel, even though the
City admitted that the ordinance was invalid and unenforceable.
73. The City lacked any rational basis for its selective and discriminatory actions to
enforce Ordinance No. 12-107 against Defendants.
74. Given that Ordinance No. 12-107 was and is illegal, as the City has repeatedly admitted, and that
its predecessor ordinance has been declared illegal by the courts, Defendants’ use of Lot 12 and Lot 13
for short term rentals has been and is a legal non-conforming use of
their properties. Defendants’ short term rentals are also a legal non-conforming use as of May 8,
2017 when the City’s purported new ordinance, Ordinance No. 17-088, became effective. This has been
communicated to Mr. Ebner by the City, who has relied upon the City’s representations, and the Kinzels
and the City are estopped to deny same.
75. All of the notices and citations Defendants have received are a direct result of persistent,
harassing complaints by the Kinzels, acting individually or on behalf of Plaintiffs trust. The Kinzels did so
while their property itself violated the language of Ordinance 12-107 because, on information and
belief, Mr. Kinzel and/or Plaintiff occupied the Kinzel Home Property for fewer than 365 calendar days.
As such, the City has effectively surrendered enforcement of Ordinance No. 12-107 to private entities to
use and manipulate in bad faith for their private ends.
76. Plaintiff and Mr. Kinzel have conspired with the City to use and manipulate the complaint
process and the enforcement mechanisms of Ordinance No. 12-107, an admittedly
34
invalid and void ordinance, to harass Defendants and drive them from their property or force
Defendants to sell their properties to the Kinzels for below-market value, in part, because
Defendants prevailed over the Kinzels in their attempt to originally purchase Lot 13.
THE CITY ATTEMPTS TO ENACT ORDINANCE NO. 17-088
77. After the 2016 report, the City planning staff continued the process of creating a new ordinance
to replace the admittedly invalid Ordinance No. 12-107, and to restrict or regulate the rentals or short
term rentals of property in the City.
78. On February 28, 2017, the City’s Division of Planning issued a staff analysis and report regarding
short term rentals in Sandusky and it recommended that the Planning Commission recommend certain
draft, proposed amendments to the Sandusky Zoning Code.
79. On March 8, 2017, the Sandusky Planning Commission held a special workshop
meeting to discuss the staff report.
80. On March 13, 2017, the Sandusky City Commission voted to set a public hearing on a proposed
new zoning ordinance to regulate transient occupancy for April 24, 2017.
81. On March 21, 2017, the City Commission published a thirty (30) day notice of a public hearing to
address proposed, new amendments to the Sandusky Zoning Code.
82. At the time of the March 21, 2017 publication for the public hearing, the City did
not have a Planning Commission Report and Recommendation or the text of Ordinance No. 17088 on
hand for public review and inspection.
83. Thus, the City violated the requirements of Section 1113.03 and 1 113.04 of the
Sandusky Codified Ordinances, which mandate that the City Planning Commission make a Report and
Recommendation on any proposed amendment to the Sandusky Zoning Code and that, during the thirty
35
(30) day period preceding the public hearing, "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 file, for public examination, in the office of the Clerk of the
Planning Commission."
84. There is an April 12, 2017 Sandusky Planning Commission Report and
Recommendation to the City Commission on file, a true and accurate copy of which is attached
hereto as Exhibit E.
85. But, upon information and belief, there was no formal public meeting held by the
City Planning Commission to approve this Report and Recommendation, and in fact the City
Planning Commission did not see or approve any such Report and Recommendation, nor did it
see or approve the actual text of Ordinance No. 17-088.
86. On April 19, 2017, this Planning Commission Report and Recommendation was
transmitted to Eric Wobser, City Manager. A true and accurate copy of this transmission is attached
hereto as Exhibit F.
87. Upon information and belief, the Planning Commission Report and
Recommendation was not transmitted to the City Commission prior to April 19, 2017, nor was the
document made available for public inspection prior to that date.
88. On April 24, 2017, a mere five (5) days after receiving the Planning Commission’s Report and
Recommendation, the City Commission held a public hearing to discuss proposed Ordinance No. 17-088,
which contained amendments to the Sandusky Zoning Code and added other transient occupancy
regulations to the Sandusky Building Code.
36
89. The Sandusky Planning Commission Report and Recommendation and the proposed text of
Ordinance No. 17-088 were available for public examination for a period of not more than five (5) days
before the public hearing before the City Commission.
90. Thus, Defendants and the other citizens and taxpayers in Sandusky with an interest in short
term rentals had an insufficient opportunity to review, and arrange for professional testimony to rebut,
the Planning Commission’s Report and Recommendation and the actual ordinance, and their right to
present a meaningful opposition to the proposed zoning amendments were impeded by the City’s
failure to comply with the mandatory procedural requirements for amending the Sandusky Zoning Code.
91. Neither the Planning Commission’s Report and Recommendation nor the text of proposed
Ordinance No. 17-088 were publicly available for the required thirty (30) days before the April 24, 2017,
public hearing. Hence, the City did not comply with the mandatory
procedures set forth in its municipal code.
92. May 8, 2017, the City Commission purportedly enacted Ordinance No. 17-088
to become effective in thirty (30) days. A true and accurate copy of Ordinance No. 17-088 is attached as
Exhibit G.
93. Defendants opposed Ordinance No. 17-088 and had the right to adequately prepare for and
meaningfully participate in public hearings on the issue. Defendants were denied that right by the City’s
failure to comply with procedural requirements of its municipal code and by its failure to timely make
the relevant documents available to the public.
94. In attempting to enact Ordinance No. 17-088, the City failed to comply with the mandates of
Section 1113.01 et seq. of its municipal code.
95. The City’s failures to comply with its mandatory legislative procedure include,
but are not limited to:
37
a. The Planning Commission’s failure to review the text of proposed Ordinance No. 17-088;
b. Having a Planning Commission’s Report and Recommendation on the proposed ordinance
prior to setting the date for a public hearing; and
c. Failing to make available the text or copy of the text of Ordinance No. 17-088 for public
examination in the office of the Clerk of the Planning Commission for a period of at least
thirty (30) days prior to the public hearing on that ordinance.
96. Because the City failed to comply with its mandatory legislative procedure in enacting
Ordinance No. 17-088, the ordinance is illegal, void on its face and, in effect, did not amend the previous
code.
SANDUSKY ORDINANCE NO. 17-088 IS UNCONSTITUTIONAL
ON ITS FACE AND AS APPLIED
97. Ordinance No. 17-088 purports to amend the Sandusky Zoning Code by defining "dwelling" as "a
building occupied exclusively for non-transient residential use (including one family, two-family, or
multi-family buildings)."
98. Ordinance No. 17-088, however, does not define "non-transient." It does define "transient
occupancy" as "to use, occupy or possess, or the use, occupancy, or possession of a dwelling or other
living accommodation for a period of 30 consecutive calendar days or less."
99. The transient occupancy definition in Ordinance No. 17-088 is vague and does
not expressly prohibit "transient rental," which is defined in the Sandusky Building Code provisions of
that ordinance, which provisions were not cited in the Planning Commission
Report and Recommendation.
100. Moreover, the transient occupancy definition, and the other amendments to the
Sandusky Zoning Code in Ordinance No. 17-088, are vague and do not promote any legislative, public, or
38
governmental interest. For example, many owners of single family residential homes in Sandusky do not
use or occupy their homes for more than thirty (30) consecutive days at a time, and to make these
single family homes a prohibited use is absurd.
101. Ordinance No. 17-088 also purports to amend certain provisions of the Sandusky
Building Code where, for the first time, a definition of "transient rental" is provided. However, that
definition appears to apply only to certain grandfathered homes or overlay districts to be
created in the future. See Sandusky Building Code 1341.32.
102. This Building Code amendment is not part of the Sandusky Zoning Code and cannot
operate as a general zoning prohibition in single family residential areas.
103. Instead, this Building Code provision indicates that the City knew how to define
and regulate "transient rental," but the City did not include this use as a defined prohibition in
Ordinance No. 17-088 ‘s new Zoning Code amendments.
104. Many sections of the Building Code provisions of Ordinance No. 17-088 are also
unconstitutionally vague and unenforceable. In fact, throughout Section 1341.32 thereof, the terms
"transient occupancy" and "transient rental," and the names of two different permits therefor are used
interchangeably, even though they are defined differently.
105. Section 1341.32(d)(5) also provides that no one could apply for a "transient rental
permit" unless the City had determined the property was a legal non-conforming use and in the
City registry. Section however, made it a criminal offense—on June 8, 2017
when the ordinance became effective—to advertise property for transient rental "prior to obtaining a
valid transient occupancy permit."
106. Since Defendants were lawfully advertising their property on the effective date of
39
the ordinance, the ordinance unconstitutionally failed to provide for the continuance of legal, non-
conforming uses, and made renting and advertising criminal offenses, without any means of
compliance.
107. In addition, the enforcement and criminal penalty provisions of Section 1341.32 are vague,
illegal, and unconstitutional, and, like the other Building Code provisions of Ordinance No. 17-088 which
rely on the validity of the Zoning Code amendments in Ordinance No. 17-088, cannot be enforced as
against Defendants.
THE CITY ATTEMPTS TO ENFORCE ORDINANCE NO. 17-088
108. On August 30, 2017, August 31, 2017, and October 31, 2017, the City filed criminal complaints
against Defendants for purported "transient rental" violations. True and accurate copies of these
citations are attached as composite Exhibit H.
109. Defendants are the only individuals/entities to receive criminal citations for alleged
violations of Ordinance No. 17-088 for alleged improper rentals and alleged illegal advertising thereof.
110. The City has only attempted to enforce Ordinance No. 17-088 against Defendants, and,
on information and belief, has not cited and criminally charged property owners who also rent single
family homes for short periods in Sandusky.
111. On information and belief, at least five (5) individuals and/or entities rent singlefamily homes
for short periods along or near the Chaussee and do not have certificates of non-
conformity exempted from Ordinance 17-088. The City has not attempted to enforce Ordinance
40
No. 17-088 against them during the 2017 Cedar Point season, nor has it issued criminal citations for
purported violations of Ordinance 17-088 against these individuals and/or entities.
112. All of the notices and citations Defendants have received are a direct result of
persistent, harassing complaints by Plaintiff or Mr. Kinzel, acting individually or on behalf of Plaintiffs
trust. As such, the City has conspired with and effectively surrendered enforcement of
Ordinance No. 17-088 to private entities to use and manipulate in bad faith for private ends.
COUNT 1
(Declaratory Judgment — Ordinance No. 12-107)
113. Defendants incorporate the above paragraphs as if fully rewritten herein.
114. The Kinzels are attempting to enforce Ordinance No. 12-107 against Defendants and the City has
likewise attempted to enforce Ordinance No. 12-107 against Defendants; thus,
an actual and justiciable controversy exists between the parties as to whether Ordinance No. 12107
was and is valid, enforceable, and constitutional.
115. As Defendants are faced with the imminent threat of the enforcement of Ordinance No. 12-107,
which is invalid, prompt and speedy relief is necessary to preserve the rights of the parties.
116. In attempting to enact Ordinance No. 12-107, the City failed to comply with the
mandatory procedures set forth in Chapter 1 113 of the Sandusky Codified Ordinances.
117. Further, the terms of Ordinance No. 12-107 fail to place a reasonable person on notice
of which activities are permitted and which are not.
118. Hence, the terms of Ordinance No. 12-107 are unconstitutional on their face as they are
vague, clearly arbitrary and unreasonable, have no rational relationship to a legitimate governmental
purpose, and may not be constitutionally applied under any circumstances.
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119. The terms of Ordinance No. 12-107 are also vague, arbitrary, clearly unreasonable, and are
without a substantial relationship to the public health, safety, and general welfare of the community,
and may not constitutionally be applied to Defendants.
120. Moreover, the plain language of Ordinance No. 12-107 does not prohibit short term
rentals and, as the City’s officials and staff have conceded, Ordinance No. 12-107 is invalid.
121. Pursuant to R.C. 2721.03, Defendants are entitled to a declaration by this Court that:
a. Ordinance No. 12-107 was not validly enacted in accordance with the procedures set forth
in the Sandusky Codified Ordinances and the Ohio Revised Code; thus, it is void and did not
amend the prior zoning code;
b. Ordinance No. 12-107 is vague and unconstitutional on its face, and that no set of
circumstances exists under which Ordinance No. 12-107 would be valid;
c. The provisions of Ordinance No. 12-107 are clearly arbitrary and unreasonable, and have no
substantial relation to the public health, safety, or general welfare; thus, Ordinance No. 12-
107 is unconstitutional on its face as applied to Defendants and the location of their
properties;
d. The Kinzels’ and the City’s attempts to enforce Ordinance No. 12-107 against Defendants
are illegal; and
e. Because Ordinance No. 12-107 was illegal, at the time Defendants purchased Lots 12 and
13, no ordinance prohibited the short term rental of either property and, thus, Defendants’
short term rental activities are a legal, nonconforming use not prohibited by Ordinance No.
12-107 or any retroactive application of Ordinance No. 17-088.
COUNT 11
(Declaratory Judgment — Ordinance No. 17-088)
122. Defendants incorporate the above paragraphs as if fully rewritten herein.
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123. An actual and justiciable controversy exists between the parties as to whether Ordinance No.
17-088 is valid, enforceable, and constitutional.
124. Speedy relief is necessary to preserve the rights of the parties as the City has issued
criminal citations to Defendants for alleged violations of this ordinance and Plaintiff is seeking injunctive
relief against Defendants for alleged violations of this ordinance.
125. In attempting to enact Ordinance No. 17-088, the City failed to comply with the
mandatory procedures set forth in Chapter 1113 of the Sandusky municipal code. The City’s failures to
comply with the mandates of Chapter 1113 include, but are not limited to: (a) setting a date for a public
hearing prior to receiving the Planning Commission’s Report and Recommendation; and (b) failing to
make available the text or copy of the text of Ordinance No. 17-088 for public examination in the office
of the Clerk of the Planning Commission for a period of at least thirty (30) days prior to holding a public
hearing.
126. Further, the terms of Ordinance No. 17-088 fail to place a reasonable person on notice of which
activities are permitted and which are not.
127. Hence, the terms of Ordinance No. 17-088 are unconstitutional on their face as they are
vague, clearly arbitrary and unreasonable, have no rational relationship to a legitimate governmental
purpose, and may not constitutionally be applied under any circumstances.
128. The terms of Ordinance No. 17-088 are also vague, arbitrary, clearly unreasonable, and
are without a substantial relationship to the public health, safety, and general welfare of the
community, and may not constitutionally be applied to Defendants.
129. Pursuant to R.C. 2721.03, Defendants are entitled to a declaration by this Court that:
43
a. Ordinance No. 17-088 was not validly enacted in accordance with the procedures set forth in
the Sandusky Codified Ordinances and the Ohio Revised Code; thus, it is void;
b. Ordinance No. 17-088 is unconstitutional on its face as it is unconstitutionally vague, clearly
arbitrary and unreasonable and has no substantial relation to the public health, safety, or
general welfare, and as no set of circumstances exists under which Ordinance No. 17-088 would
be valid;
c. The provisions of Ordinance No. 17-088 are unconstitutional as applied to Defendants and their
unique properties adjacent to and impacted by Cedar Point and its transient guests and patrons;
d. The Kinzels’ and the City’s attempts to enforce Ordinance No. 17-088 against Defendants are
illegal;
e. The Zoning Code provisions of Ordinance No. 17-088 do not expressly prohibit short term
rental; thus, Ordinance No. 17-088 does cannot operate to prohibit Defendants’ rental
activities;
f. Defendants’ use of Lots 12 and 13 as short term rental properties are a valid, prior non-
conforming use not restricted by Ordinance No. 17-088 as Ordinance No. 12107 was either (i)
invalid and/or unconstitutional; or (ii) did not prohibit short term or intermittent rental; and
g. The revisions to the Sandusky Building Code, as set forth in Ordinance No. 17-088, cannot
operate as a zoning ordinance prohibiting Defendants’ rental activities.
COUNT 111
(Declaratory Judgment — Taking)
130. Defendants incorporate the above paragraphs as if fully rewritten herein.
131. An actual and justiciable controversy exists between the City and Defendants regarding
whether the current iterations of Ordinance Nos. 12-107 and 17-088 as applied to Lot
12 and Lot 13 constitute a taking.
132. Speedy relief is necessary to preserve the rights of the parties.
133. Ordinance No. 12-107 ‘s and Ordinance No. 17-088’s provisions are unreasonable,
unconstitutional, and destroy Lot 12’s and Lot 13 ‘s substantial values to such an extent that they
44
constitute takings of Defendants’ interests in the properties without due process of law and without just
and reasonable compensation.
134. The City, by applying the terms of invalid Ordinance Nos. 12-107 and 17-088 to Lot 12
and Lot 13, has infringed upon Defendants’ rights to use their property for its highest and best use, such
that there is no reasonable, economically viable use for these parcels.
135. The City, by applying the terms of Ordinance Nos. 12-107 and 17-088 to Lot 12 and Lot
13, does not substantially advance a legitimate state interest.
136. Pursuant to R.C. 2721.03, Defendants are entitled to a declaration by this Court that:
a. Ordinance Nos. 12-107 and 17-088, as applied to Lots 12 and 13, are takings under Article I,
Section 19 of the Ohio Constitution for which Defendants are entitled to just compensation;
and
b. Ordinance Nos. 12-107 and 17-088, as applied to Lots 12 and 13, are takings under the Fifth
and Fourteenth Amendments to the United States Constitution for which Defendants are
entitled to just compensation.
COUNT IV
(Mandamus)
137. Defendants incorporate the above paragraphs as if fully rewritten herein.
138. Under the Fifth and Fourteenth Amendments to the United States Constitution and
Article I, Section 19 of the Ohio Constitution, Defendants have a clear right to receive compensation
from the City for taking their property by enforcing Ordinance Nos. 12-107 and 17-088 against Lot 12
and Lot 13.
45
139. Since August 6, 2015, the City has deprived Defendants of any reasonable, economically
viable use of Lot 12 and Lot 13 by unconstitutionally applying Ordinance Nos. 12107 and 17-088 in a
manner that constitutes a taking.
140. By depriving Defendants of any reasonable, economically viable use of Lot 12 and Lot
13, the City has significantly diminished Lot 12’s and Lot 13 ‘s values. These values will not be restored
unless and until the City ceases its attempts to enforce Ordinance Nos. 12-107 and 17-088 and allows
the short-term rental of Lot 12 and Lot 13.
141. As compensation, Defendants are entitled to recover the amount by which the City
diminished Lot 12’s and Lot 13’s values from August 6, 2015 through the date mentioned above.
142. The City is under a clear legal duty to commence appropriation proceedings in the Erie
County Court of Common Pleas, Probate Division, so that the Court can determine the amount of
compensation the City must pay for Lot 12 ‘s and Lot 13 ‘s temporary takings.
143. Defendants have no plain and adequate remedy in the ordinary course of law to require
the City to compensate them fairly for the losses that they have incurred and will continue to incur for
the City’s taking of Lot 12 and Lot 13.
COUNT V
(Tortious Interference)
144. Defendants incorporate the above paragraphs as if fully rewritten herein.
145. The Kinzels and the City knew or should have known that Defendants had agreements
and contracts, or prospective agreements and contracts, with their renters.
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146. The Kinzels and the City, by attempting to enforce Ordinance Nos. 12-107 and 17-088 as
aforementioned, are interfering with the agreements and contracts Defendants have with their existing
and prospective renters without privilege to do so.
147. The Kinzels’ and the City’s conduct is intentional, willful, and malicious.
148. As a direct and proximate result of the Kinzels’ and the City’s knowing and intentional
interference with Defendants’ rental agreements and prospective agreements, Defendants have and will
continue to suffer monetary damages, which include but are not limited to lost or diminished rentals,
injured reputations both personal and professional, the loss of future rental opportunities and
properties, and attorney’s fees and costs, the full extent of which will be determined at trial.
COUNT VI
(Civil Conspiracy)
149. Defendants incorporate the above paragraphs as if fully rewritten herein.
150. After Defendants purchased Lot 13, the Kinzels sent weekly written complaints to the
City and pressured the City to enforce Ordinance No. 12-107, which was clearly known to be invalid,
against Defendants for purported short term rentals of the single family home on Lot 13.
151. As a result of the pressure brought by the Kinzels, and in part as a result of the Kinzels’
prominence in the Sandusky community, the City issued notices of violation to Defendants for alleged
short term rentals of Lot 13.
152. These notices of violation were issued periodically from August 6, 2015 through October
7, 2016.
153. At the time the City issued these notices, it knew that Ordinance No. 12-107 was illegal
and invalid but nevertheless, and in concert with the Kinzels, issued the notices to both harass and ham
Defendants. See Ex. D.
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154. These notices were sent by the City pursuant to a common plan and in collusion with
the Kinzels, in an attempt to deprive Defendants of their legal right to utilize their property free of illegal
constraints and, upon information and belief, to drive Defendants from the area and to force
Defendants to sell Lot 13 to the Kinzels at a below-market value price.
155. After the City enacted Ordinance No. 17-088, which is also invalid, the City issued a
notice of violation to Defendants within weeks of the ordinance’s effective date for purported short
term rentals. See Exhibit J to Plaintiffs Complaint.
156. The City issued this notice of violation after receiving incessant complaints and
photographs from the Kinzels regarding the alleged short term rentals of Lot 13 once the Cedar Point
visitor season resumed in Spring of 2017.
157. The City subsequently issued multiple criminal citations against Defendants for purported
violations of the illegal Ordinance No. 17-088, each of which was issued as a result of continuous
pressure exerted by the Kinzels upon the City
158. The Kinzels and the City acted maliciously, in concert with one another, and have taken
numerous actions in furtherance of their conspiracy including, but not limited to, the Kinzels’ false
statements about Defendants to the City, which the City accepted as true, the Kinzels’ and the City’s
tortious interference with Defendants’ contractual relations, issuing citations and notices to Defendants
for alleged violations of Ordinance No. 12-107 after the City
and its officials have admitted it was invalid, and by conspiring to issue criminal citations for purported
violations of Ordinance No. 17-088, which is also invalid.
159. As a direct and proximate result of the Kinzels’ and the City’s unlawful conspiracy,
Defendants have received criminal citations and notices for purported violations of invalid ordinances,
and have incurred monetary damages, which include but are not limited to lost rental opportunities and
48
decreases in property values, injured reputations both personal and professional, the loss of future
rental opportunities and properties, as well as attorney’s fees and costs incurred in defending against
these illegal citations and acts, in an amount to be determined at trial.
COUNT Vll
(Punitive Damages)
160. Defendants incorporate the above paragraphs as if fully rewritten herein.
161. The Kinzels and the City intentionally, maliciously, and knowingly interfered with
agreements Defendants have with their existing and prospective renters.
162. In addition, the Kinzels intentionally and maliciously conspired with the City to criminally
cite Defendants for purported violations of one or more Sandusky ordinances when such ordinances
were not properly enacted, were unconstitutional on their face and as applied, and were otherwise
invalid.
163. The Kinzels intentionally and maliciously conspired to have the City criminally cite
Defendants when both the City and the Kinzels knew the ordinances were invalid and would not
withstand legal scrutiny, and/or that Defendants’ existing uses of Lots 12 and 13 were legal non-
conforming uses.
164. This malicious conduct has a great probability of causing substantial harm to Defendants
because Defendants are facing imminent criminal penalties and because their property values have
been reduced.
165. Defendants are, therefore, entitled to punitive damages and the recovery of their
attorney’s fees incurred in this action due to the Kinzels’ and the City’s malicious conduct.
COUNT Vill
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(Attorney’s Fees and Costs — Ordinance No. 17-088)
166. Defendants incorporate the above paragraphs as if fully rewritten herein.
167. Ordinance No. 17-088 provides that the prevailing party in an action involving purported
violations of the Sandusky Zoning and Building Code shall be entitled to recover reasonable costs,
attorney’s fees, and statutory damages.
168. Plaintiff seeks relief under this section but for the reasons set forth in these
Counterclaims, she is not entitled to same.
169. Defendants are, therefore, entitled to recover their reasonable costs, attorney’s fees,
and statutory damages as the prevailing party in this action.
COUNT IX
(Equal Protection, Class of One – 42 U.S.C. 1983)
170. Defendants incorporate the above paragraphs as if fully rewritten herein.
171. The City has attempted to enforce Ordinance No. 12-107 and has brought criminal
charges against Defendants for alleged violations of Ordinance No. 17-088, but has declined to formally
or criminally enforce these Ordinances against similarly situated individuals.
172. The City lacks any rational basis for selectively enforcing Ordinance Nos. 12-107 and 17-
088 against Defendants, but for the conspiracy with the Kinzels and the City’s animus toward Mr. Ebner
for having the prior zoning code declared unconstitutional.
173. The City’s unlawful and discriminatory enforcement of Ordinance Nos. 12-107 and 17-
088, has deprived Defendants of the right to the use and enjoyment of their property and has caused
and will continue to cause Defendants irreparable injury for which they have no adequate remedy at
law.
174. The City has also allowed private parties to manipulate enforcement of Ordinance No.
17-088 for their private ends, in part, by creating a private right of enforcement and by conspiring with
the Kinzels to criminally cite only defendants as a class of one.
175. In so acting, the City has, under color of law, deprived Defendants of the equal
protection of the laws under the Ohio and United States Constitutions.
50
176. Defendants are thus entitled to an order declaring that Ordinance Nos. 12-107 and 17-088
violate Defendants’ equal protection rights guaranteed under the Ohio and United States Constitutions,
permanently enjoining the City from enforcing Ordinance Nos. 2-107 and 17-088 against Defendants,
and awarding Defendants compensatory damages, attorney’s fees, and costs.
COUNT X
(Due Process – 42 U.S.C. 1983)
177. Defendants incorporate the above paragraphs as if fully rewritten herein.
178. The City has enforced and attempted to enforce against Defendants ordinances that it
knows to be invalid in order to discourage Defendants’ exercise of their constitutionallyprotected
property rights.
179. By applying and attempting to enforce Ordinance Nos. 12-107 and 17-088 against
Defendants, the City has violated and will continue to violate Defendant’s rights to due process.
180. In so acting, the City has, under color of law, deprived Defendants of due process
of law, resulting in damages in an amount to be determined at trial.
181. Moreover, unless this Court enjoins the City from enforcing Ordinance Nos. 12107 and
17-088, the City will continue to interfere with Defendants’ constitutionally protected
51
property rights, causing irreparable harm to Defendants, for which Defendants have no adequate
remedy at law.
182. Defendants are thus entitled to an order declaring that Ordinance Nos. 12-107 and
17-088 violate Defendants’ due process rights guaranteed under the Ohio and United States
Constitutions, permanently enjoining the City from enforcing Ordinance Nos. 12-107 and
17-088 against Defendants, and awarding Defendants compensatory damages, attorney’s fees, and
costs.
COUNT Xl
(Freedom of Speech – 42 U.S.C. 1983)
183. Defendants incorporate the above paragraphs as if fully rewritten herein.
Ordinance No. 17-088’s prohibition on advertising short term rentals is illegal and
unconstitutional.
185. Defendants’ purported advertisements and listings are neither misleading nor unlawful
because, as set forth herein, the implicated ordinances do not prevent the activity being advertised and
because Defendants’ activities are a legal non-conforming use.
186. The City has nonetheless pursued criminal actions against Defendants for advertising
and listing rental properties.
187. The City’s enforcement actions do not implicate or advance a substantial state
interest.
188. In so acting, the City has, under color of law, deprived Defendants of their free
speech rights under the Ohio and United States Constitutions
189. Defendants are thus entitled to an order declaring that Ordinance No. 17-088
violates Defendants’ free speech rights guaranteed under the Ohio and United States Constitutions,
permanently enjoining the City from enforcing Ordinance No. 17-088’s advertising prohibitions and
52
regulations against Defendants, and awarding Defendants compensatory damages, attorney’s fees, and
costs.
COUNT Xll
(Taxpayer Action — R.C. 733.59)
190. Defendants/Relators incorporate the above paragraphs as if fully rewritten herein.
191. Defendants/Relators are taxpayers and residents of the City and otherwise pay taxes to
the City.
192. Defendants/Relators are bringing this action on behalf of themselves and all
residents and taxpayers of the City of Sandusky to have Ordinance No. 17-088 declared null and
void ab initio.
193. As set forth above, the City failed to comply with the mandatory procedural
requirements set out in Chapter 1113 of the Sandusky municipal code for the enactment or amendment
of zoning ordinances.
194. As such, the Sandusky Zoning Code provisions of Ordinance 17-088 were not
validly enacted and are, therefore, void.
195. Enforcement of the void ordinance is an abuse of corporate powers and, in so acting,
the City has abused its corporate powers
196. Counsel for Defendants/Relators, on behalf of Defendants/Relators, demanded in
writing that the City’s Law Director bring suit to enjoin the City’s abuse of its corporate powers.
A true and accurate copy ofDefendants’ written demand is attached as Exhibit I.
197. The Law Director has failed to do so and the City is currently and persistently
pursuing criminal enforcement actions against Defendants under Ordinance 17-088.
53
198. Because the City’s actions in enacting Ordinance No. 17-088, as well as its attempts to
enforce it criminally and otherwise, constitute an abuse of power, Defendants/Relators bring this action
on behalf of themselves and other taxpayers of the City pursuant to R.C. 733.59 et seq. to enjoin the
City’s abuse of corporate power and for the Court to declare that Ordinance No. 17-088 is null and void
ab initio.
199. Defendants further seek, pursuant to R.C. 733.61, an award of their attorney’s fees and
costs incurred herein.
PRAYER FOR RELIEF
WHEREFORE, Defendants and Counterclaim Plaintiffs/Relators, Douglass Ebner, 2253
Cedar Point LLC, and 2243 Cedar Point LLC, pray for the following relief:
a. That this Court enter judgment in Defendants’ favor and against Plaintiff, dismiss the
Complaint in its entirety, and award Defendants all costs and expenses incurred in defending
this action, including attorney’s fees;
b. For a judicial declaration that Ordinance No. 12-107 was not validly enacted and is void for
failure to comply with the mandatory procedural requirements for the enactment of zoning
measures set forth in Chapter 1113 of the Codified Ordinances of the City of Sandusky, Ohio,
and the Ohio Revised Code;
c. For a judicial declaration that Ordinance No. 12-107 did not amend the prior zoning code;
d. For a judicial declaration that Ordinance No. 12-107 is unconstitutional on its face;
e. For a judicial declaration that Ordinance No. 12-107 is unconstitutional as applied to
Defendants;
f. For a judicial declaration that, at the time Defendants purchased Lots 12 and 13, no
ordinance prohibited the short term rental of either property and, thus, Defendants’ short
term rental activities are a legal, non-conforming use not affected by any retroactive
application of Ordinance No. 17-088;
g. For a judicial declaration that Ordinance No. 17-088 was not validly enacted and is void
for failure to comply with the mandatory procedural requirements for the enactment of
54
zoning measures set forth in Chapter 1113 of the Codified Ordinances of the City of Sandusky,
Ohio, and the Ohio Revised Code;
h. For a judicial declaration that the Building Code provisions of Ordinance No. 17088 are
unconstitutionally vague and promote no legitimate governmental purpose;
i. For a judicial declaration that Ordinance No. 17-088 is unconstitutional on its face;
j. For a judicial declaration that Ordinance No. 17-088 is unconstitutional as applied to
Defendants;
k. For a judicial declaration that the Kinzels’ and the City’s attempts to enforce Ordinances Nos.
12-107 and 17-088 against Defendants are illegal;
1. For a judicial declaration that Defendants’ rental of Lot 12 and Lot 13 is a valid non-conforming
use of those parcels established prior to the alleged enactment of Ordinance No. 17-088 and,
thus, even if the ordinance is valid it is not applicable to Defendants;
m. For a judicial declaration that Ordinance Nos. 12-107 and 17-088 constitute unlawful
delegations of legislative authority;
n. For a judicial declaration that the application of Ordinance Nos. 12-107 and 17088 to
Defendants and their property constitutes a taking under the Ohio and United States
Constitutions;
o. For a preliminary and permanent injunction enjoining the City of Sandusky from enforcing
either Ordinance No. 12-107 or Ordinance No. 17-088 against Defendants;
p. That Defendants be awarded monetary damages, including punitive damages, in an amount
exceeding $25,000;
q. That Defendants be awarded their reasonable attorney’s fees and costs incurred in litigating
the above-captioned matter pursuant to 42 U.S.C. 1988, and such other federal and state
statutes and common law;
r. That Defendants be awarded statutory and other damages as provided in Section
1341.320) of Ordinance No. 17-088;
s. That Defendants/Relators be awarded those damages and other relief provided for in
R.C.733.59 et seq., including but not limited to their attorney’s fees; and
t. That Defendants be awarded any additional relief that the Court deems just and equitable.
JURY DEMAND
Defendants request a jury as to all issues so triable.
Dated: December 1, 2017
55
Respectfully submitted,
Is/ Charles A. Bowers
Stephen M. O’Bryan (0009512)
Charles A. Bowers (0064075)
Matthew B. Barbara (0093978)
Attorneys for Defendants/Counterclaimants,
Douglass Ebner,et al.
Taft Stettinius & 1–1011ister LLP
200 Public Square, Suite 3500
Cleveland, OH 4114-230
Phone: 216-241-2838
sobryan@taftlaw.com
cbowers@taftlaw.com
mbarbara@taftlaw.com
Facsimile: 216-241-3707
VERIFICATION
STATE OF COLORADO )
) SS:
COUNTY OF EAGLE )
56
Douglass Ebner being first duly sworn, deposes and states that he is a taxpayer in the City of Sandusky,
Ohio, and a principal of 2243 Cedar Point LLC and 2253 Cedar Point LLC, and that all facts set forth in the
foregoing Counterclaims are true based upon his own knowledge, information or belief, and information
provided to him.
Douglass Ebner
SWORN TO BEFORE ME and subscribed in my presence this——– day of
December, 2017.
NOTARY PUBLIC
CALEB GREGORY PRICKETT
NOTARY PUBLIC
STATE OF COLORADO
NOTARY ID 20164047182
MY COMMISSION EXPIRES DECEMBER 13, 2020
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served upon the following parties on
December 1, 2017, via e-mail, pursuant to Civ. R. 5(B)(2)(f):
Michael Braunstein (0060898)
Braunstein@GBlegal.net
Clinton P. Stahler (0092560)
57
Stahler@GBlegal.net
Matthew L. strayer (0092068)
Strayer@GBlegal.net 500 South Front Street, Suite 1200
Columbus, OH 43215
Phone: 614-229-4566
Fax: 614-229-4568
Attorneys for PlaintiffJudith A. Kinzel,
Trustee
Is/ Charles A. Bowers
Charles A. Bowers
One ofthe Attorneys for
Defendants/Counterclaimants, Douglass
Ebner, et al.
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