IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Plaintiff/Appellee

V.

DONALD L. WENKER,

Defendant/Appellant

Case No.

On Appeal from the Court of AppealsHamilton County, Ohio, First AppellateDistrict

Court of Appeals Case Nos. C0600301 andC0600273

MEMORANDUM OF APPELLANT DONALD L. WENKERIN SUPPORT OF JURISDICTION

John R. Ipsaro (0062300)

ULMER & BERNE LLP

600 Vine Street, Suite 2800Cincinnati, Ohio 45202E-Mail: jipsaro@ulmer.comTel: (513) 698-5104Fax: (513) 698-5105

Scott D. Phillips (0043654)W. Joseph Scholler (0072764)FROST BROWN TODD LLC2200 PNC Center201 East Fifth StreetCincinnati, Ohio 45202E-Mail: sphillips@fbtlaw.comTel: (513) 651-6983Fax: (513) 651-6981

Counsel for Defendant-Appellant Donald Wenker

Counsel for Plaintiff-Appellee State of Ohio

U u L .. I

MAR 2 s 7007

MAR CIA J. MENGEI.,SUPREME COUR7 OF OHIO

TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIAL CONSTITUTIONALQUESTION AND IS OF PUBLIC AND GREAT GENERAL INTEREST ................................. 1

STATEMENT OF THE CASE AND FACTS ............................................................................... 4

A. Summary of Relevant Zoning Provisions ........................................................................... 5

B. History of Relevant Property Transactions ......................................................................... 6

1. Group 1: Parcels 22 and 39 ............................................................................................. 6

2. Group 2: Parcels 25, 34 and 35 ....................................................................................... 7

C. Indian Hill's Inability to Interpret Its Own Ordinance and Creation of a NovelInterpretation to Support Prosecution ................................................................................ 8

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ....................................................... 9

Proposition of Law No. 1: The Ordinance must be strictly construed against the State and,when analyzed correctly, cannot be interpreted to prohibit Mr. Wenker's transaction.......... 9

Proposition of Law No. 2: Zoning restrictions, particularly when used as the basis forcriminal prosecution, are unconstitutionally vague if they fail to fairly inform citizens of theconduct that is prohibited ...................................................................................................... 12

Proposition of Law No. 3: The Ordinance lacks sufficient standards to prevent arbitrary anddiscriminatory enforcement as interpreted and applied to Mr. Wenker and isunconstitutional as interpreted and applied to Mr. Wenker .................................................. 14

CONCLUSION ............................................................................................................................. 15

LIST OF ATTACHMENTS ......................................................................................................... 16

CERTIFICATE OF SERVICE ..................................................................................................... 16

EXPLANATION OF WHY THIS CASE RAISES A SUBSTANTIAL CONSTITUTIONALQUESTION AND IS OF PUBLIC AND GREAT GENERAL INTEREST

This appeal involves many issues that implicate substantial constitutional questions and

matters of public and great general interest including: (1) the extent of the State's ability to

infringe on private property rights; (2) the State's obligation to reasonably infonn its citizens of

what constitutes criminal conduct; (3) the State's obligation to enact criminal statutes that

provide sufficient standards to prevent arbitrary and discriminatory enforcement; and (4) the

standard pursuant to which challenges to vague criminal zoning ordinances should be analyzed.

In this case, an Ohio citizen has been the victim of selective enforcement and convicted of a

crime based upon his intent to develop private property. Through a strained prosecutor-created

interpretation of a zoning ordinance that ignores fundamental principles of statutory construction,

Plaintiff-Appellee the State of Ohio, on behalf of the Village of Indian Hill ("Indian Hill"), has

turned buying and selling discrete parcels of real estate into a crime.

Particularly troubling, when confronted with identical circumstances involving the same

parcels approximately ten years earlier, Indian Hill concluded no crime had been committed.

The difference, according to the man who issued the citation, was that Defendant-Appellant

Donald Wenker ("Mr. Wenker") intended to develop the property. The following exchange

from trial underscores the need for this Court to help right a wrong:

Q. Back in 1993, in September and October of 1993, when you sat as secretary, Iassume, the village manager at the point in time, and you were attending these meetings, it wasbrought to your attention that Bernard Brockhage had transferred parcel 39 to Robert Brockhage,correct [essentially the same transfer for which Mr. Wenker was prosecuted criminally]?

A. That's correct.

Q. Was there ever any citation to Bernard Brockhage or Robert Brockhage inconjunction with that?

A. No, there was not.

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Q. hi retrospect looking back at it, that conduct was identical to that for which youhave cited Mr. Wenker; is that fair?

A. No. I think the difference between the two was that the planning commission atthat point in time denied the request of Mr. Brockhage to develop the rear lot. The issue wastaken off the table. There was no effort to develop that lot or to secure a site clearance release.

Q. What triggers the violation under Section 51.5 is an intent to develop?

A. In my mind, yes.

Q. Where does it say that in the zoning code?

A. It doesn't.

Thus, a man who bought and sold adjoining parcels of real estate was prosecuted criminally not

based upon language in any criminal statute, but only because he intended to develop his private

property.

There are other troubling aspects of this criminal prosecution. The record establishes that

Indian Hill had no idea whether its zoning ordinance had been violated by Mr. Wenker. As a

result, Indian Hill solicited (from the prosecutor) a legal opinion interpreting its zoning

ordinance. That legal opinion concluded that there were several equally permissible

interpretations of the ordinance at issue. Pursuant to some of the interpretations, no crime had

been committed. At trial, Indian Hill conceded it simply chose interpretations pursuant to which

it could prosecute Mr. Wenker.

A "municipal ordinance which vests an arbitrary discretion in public administrative officials

with reference to the rights, property, or business of individuals ... without furnishing any definite

standard for the control of the officers, is unconstitutional, void, and beyond the powers of a

municipality." State ex rel. Selected Properties v. Gottfried, 163 Ohio St.469, 473; 127 N.E.2d 371

(quoting 37 AmJur, 778, § 160). Precedent sanctioning admittedly arbitrary and selective

prosecution implicates due process and concerns every citizen of Ohio.

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The state is obligated to inform its citizens fairly of what conduct may be subject to

criminal sanction. Cf, e.g., City ofAkron v. Rowland (1993), 67 Ohio St. 3d 374, 382, 1993

Ohio 222; 618 N.E.2d 138 ("It is a constitutional imperative that the dividing line between the

lawful and the criminal be clear to all and not subject to conjecture.") As this Court has stated,

"a statute which either forbids or requires the doing of an act in terms so vague that men of

common intelligence must necessarily guess at its meaning and differ as to its application,

violates the first essential of due process." City ofAkron v. Rowland (1993), 67 Ohio St. 3d 374,

383, 1993 Ohio 222; 618 N.E.2d 138, quoting Counally v. Gen. Constr. Co. (1926), 269 U.S.

385, 391, 46 S.Ct. 126, 70 L.Ed. 322; see also South Euclid v. Richardson ( 1990), 49 Ohio St. 3d

147, 150-151, 551 N.E.2d 606 (same).

Here, the ordinance on its face does not proscribe Mr. Wenker's property transactions.

Even after Indian Hill obtained a legal opinion interpreting the ordinance, the decision to

prosecute Mr. Wenker was arbitrary and based upon Mr. Wenker's desire to develop his

property, not the language of the ordinance.

The property rights involved in this case also make it of public and great general interest.

Mr. Wenker was prosecuted criminally under a zoning ordinance to prevent him from developing

his property. Limitations on property use are strictly construed under Ohio law and call into

question the State's right to condition some of the most basic and fundamental rights under Ohio

law - the right to use or sell property. They therefore necessarily raise the constitutional

question of the state's ability to infringe on property rights deemed both "inalienable," Ohio

Constitution, Article I, Section 1.01 and, subject to appropriate conditions, "inviolate." Ohio

Constitution, Article 1, Section 19.

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This Court repeatedly has recognized the public and great general interest in limiting the

State's control over property use by its citizens. Most recently in City of Norwood v. Horney

(2006) 110 Ohio St. 3d 353, 2006 Ohio 3799, 853 N.E.2d 1115, this Court reinforced the

essential nature of property rights, writing that

"The rights related to property, i.e., to acquire, use, enjoy, and dispose ofproperty, Buchanan v. Warley (1917), 245 U.S. 60, 74, 38 S.Ct. 16, 62 L.Ed. 149,are among the most revered in our law and traditions. Indeed, property rights areintegral aspects of our theory of democracy and notions of liberty,"

id. 2006 Ohio 3799, ¶ 34; and that

"Ohio has always considered the right of property to be a fundamental right....There can be no doubt that the bundle of venerable rights associated with propertyis strongly protected in the Ohio Constitution and must be trod upon lightly, nomatter how great the weight of other forces." Id., ¶ 38.

It is critical that Ohio citizens have fair notice of conduct deemed criminal. It is critical

that Ohio citizens are not arbitrarily singled out for criminal prosecution under ordinances that do

not contain sufficient standards to prevent arbitrary and discriminatory enforcement. Without

those safeguards you get the result in this case - a municipality selectively enforcing a vague

zoning ordinance to prevent development. Accordingly, Mr. Wenker urges this Court to accept

jurisdiction of this appeal to right a wrong and, in the process, reaffirm its decision in Norwood

and reinforce fundamental principles of due process and fair notice in zoning and criminal cases.

STATEMENT OF THE CASE AND FACTS

The case arises out of Indian Hill's interpretation of Section 51.5 of the Indian Hill

zoning ordinance (the "Ordinance"). Section 51.5 of the Ordinance provides:

No non-conforming lot or parcel of land shall be further reduced inarea. No lot or parcel of land which complies as to lot area for thedistrict in which it is located shall be reduced in areas [sic] so that itsremaining area fails to meet the requirements of the ZoningOrdinance; and any lot or parcel created by the violation of theseterms of the next preceding [sic] sentence shall be deemed to be anon-conforming lot.

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Mr. Wenker was convicted of violating Section 51.5 after he bought different parcels of

property from different people and subsequently sold the front parcels to his son and daughter.

The Village of Indian Hill deemed those discrete Hamilton County, Ohio Auditor's parcels as

combined (or merged) for purposes of Section 51.5 of the Ordinance when they came under

common ownership by Mr. Wenker.

Mr. Wenker is a resident of the Village of Indian Hill, an affluent municipality located in

Southwestern Ohio. Indian Hill is represented by the State of Ohio. Mr. Wenker seeks Supreme

Court review of a February 7, 2007, Judgment Entry issued by the First Appellate District Court

of Appeals. The First Appellate District Court of Appeals upheld a trial court conviction ruling

that Mr. Wenker's transfers of two discrete parcel of real property in Indian Hill constituted a

criminal misdemeanor.

A. Summary of Relevant Zoning Provisions

Pursuant to the Ordinance, residential "lots" in the relevant zone of Indian Hill must be

comprised of at least one acre of land. Ordinance, § 73.1. Although non-conforming lots and

parcels that pre-date the Ordinance are permitted to continue their use, Ordinance §§ 38.33, 53,

no "non-conforming lot or parcel" shall be further reduced in area. Id., § 51.5.

Mr. Wenker acquired two groups of legally distinct parcels in Indian Hill. The issue is

whether the Ordinance provides that separately designated parcels of less than one acre merge

into a larger "lot or parcel" than cannot thereafter be separated by selling the parcels individually

after the discrete parcels have come under common ownership.

Section 51.5 clearly does not say that. In fact, the Ordinance does not contain any

provision stating that separate parcels are merged into a single "lot" or "parcel" if and when

those separate parcels come under common ownership. Nor does it contain a provision stating

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that separately owned parcels are merged into a single "lot" or "parcel" if they are later held by

different members of the same family (an interpretation Indian Hill proffered).

Section 37.131 defines "Parcel of land (auditor's parcel)" as follows:

A parcel of land so designated and enumerated on the maps and records of theHamilton County Auditor which, in and of itself, does not constitute a lot ofrecord.

Section 81 of the Ordinance provides:

On any lot of official record, as defined in Section 3 of this ordinance, at the timeof the enactment of the ordinance, even though a smaller area and/or frontage thanrequired by this chapter in the district where it is located, a one-family dwellingwith its customary accessory structures may be authorized by the PlanningCommission provided that the owner of the lot does not own any adjacentland. . . . (Emphasis added.)

B. History of Relevant Property Transactions

Between 1993 and 1997, Mr. Wenker acquired two different groups of adjacent parcels

of land in hidian Hill, and sold one parcel from each of those groups.

Group 1: Parcels 22 and 39

Parce122 is a 0.79 acre parcel containing a home. Parcel 39 is a.794 acre parcel that sits

directly behind (south of) parce122. From at least 1944 to March, 1975, Parcel 22 was owned by

Mary Louise Brockage. In October, 1944, Ms. Brockage's husband, Bernard Brockage,

purchased an adjacent empty parcel, Parcel 39. In March, 1975, Bernard Brockage acquired title

to Parce122. In April, 1975, the Brockages' son, Bernard S. Brockage, acquired title to both

Parcels 22 and 39 (i.e., the parcels came under common ownership). In August, 1993, Mr.

Brockage transferred title to Parcel 39 to his son Robert J. Brockage (this transfer is identical to

Mr. Wenker's transfer of Parce122 to his son in the sense that it left Parcel 22 as .794 acres after

Parcels 22 and 39 had come under common ownership). In December 1993, Mr. Wenker and his

wife Susan acquired title to both Parcels 22 and 39 from Bernard S. Brockage and Robert

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Brockage respectively, pursuant to two separate deeds. In June 1994, the Wenkers transferred

title to Parcel 22 to their son, Randall Wenker, who subsequently sold Parcel 22 to third parties.

Group 2: Parcels 25, 34 and 35

Parcels 25, 34, and 35 also are contiguous with one another. Parce125 is 0.66 acres and

contains a home. Parcel 35 sits directly behind (south of) parce125 and Parce134 is due east of

Parce135.

From at least September, 1940, Parcel 25 was owned by Robert Mecke. In September,

1940, Mr. Mecke's wife, Bertha Mecke, acquired title to two adjacent empty parcels, Parcels 34

and 35. At Ms. Mecke's death in January 1942, Robert Mecke acquired title to those parcels.

Although portions of Parcels 34 and 35 were later transferred to other owners, the relevant

portions of all three parcels thereafter remained under common ownership by a series of owners,

including Mr. Wenker, who purchased the three parcels in September, 1997. In December, 1997,

Mr. Wenker transferred title to Parce125 to his daughter, Wendy Chute.

As a result of the history described above, Donald Wenker is the current owner of Parcels

34, 35, and 39. Mr. Wenker may develop those parcels in combination with others he owns to

create building lots of at least one acre.

At all times prior to Mr. Wenker acquiring them, Parcels 22 and 25 were treated as

grandfathered non-conforming parcels (less than one acre parcels that existed prior to enactment

of the Ordinance). Mr. Wenker's transactions left Parcels 22 and 25 in the identical composition

(0.79 acres and 0.66 acres respectively) as they existed when the Ordinance took effect (but in

the hands of other owners). Mr. Wenker did not reduce the size of any parcel. As a man of

common intelligence, he certainly had no idea his transfers would be deemed criminal conduct.

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C. Indian Hill's Inability to Interpret Its Own Ordinance and Creation of a NovelInterpretation to Support Prosecution

The man responsible for enforcing the Ordinance is Indian Hill's City Manager, Mike

Bums. Mr. Bums has been Indian Hill's City Manager for 14%z years. He has read the

Ordinance hundreds of times. He has written several zoning ordinances and has amended Indian

Hill's Ordinance.

Despite his zoning expertise, Mr. Bums was unable to determine whether Mr. Wenker's

transfers violated the Ordinance. As a result, Mr. Burns solicited a legal opinion from Indian

Hill's counsel, Frost Brown Todd (who prosecuted this action through Mayor's Court to this

Court). That legal opinion formed the basis of Indian Hill's decision to cite Mr. Wenker. It was

introduced into evidence by hidian Hill at the Mayor's Court trial. To this day, the legal opinion

remains a basis of Indian Hill's continued prosecution of Donald Wenker.

Pursuant to the prosecutor's legal opinion, there are at least three acceptable

interpretations of Section 51.5. Pursuant to some of the interpretations, Mr. Wenker did not

violate the Ordinance. Each of the three interpretations is equally permissible. There are no

rules or standards to use to determine which of the three interpretations should be applied.

According to Indian Hill, it has the latitude to choose any of the three interpretations. Mr. Bums

testified as follows regarding his use of the legal opinion:

Q. To this day that legal opinion from Frost, Brown, Todd remains one of the basespursuant to which you decided to cite Mr. Wenker; is that fair?

A. It is part of the decision to cite, yes.

Q. It remains part of the decision today pursuant to which Indian Hill continues topursue charges against Mr. Wenker, correct?

A. That's correct.

8

Q. And even to this day Indian Hill continues to choose out of the permissibleinterpretations in that legal opinion those interpretations pursuant to which Mr. Wenker can bedeemed to be in violation of Section 51.5; is that fair, sir?

A. Yes.

Based on the novel interpretation of the Ordinance the prosecutor created, Indian Hill

charged Mr. Wenker with a crime. Despite Indian Hill's failure to identify any support for its

"merger" theory in the Mayor's Court, trial court, or Court of Appeals, and despite Indian Hill's

admittedly arbitrary enforcement, Indian Hill has thus far prevailed.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1:

The Ordinance must be strictly construed against the State and, when analyzed correctly,cannot be interpreted to prohibit Mr. Wenker's transactions.

The courts below erred by failing to review the Ordinance under the principles of strict

construction to which Mr. Wenker's is entitled as a matter of fundamental due process. It is

fundamental that statutes defining criminal offenses or penalties must be strictly construed against

the State of Ohio and liberally in favor of the accused. O.R.C. §2901.04(A). That canon of

construction applies to municipal ordinances. Tallmadge v. Stevenson (1996), 113 Ohio App.3d

504; 681 N.E.2d 476.

Similarly, zoning restrictions are in derogation of the common law and deprive a property

owner of certain uses of his land to which he would otherwise be lawfully entitled. Saunders v.

Clark County Zoning Deoartment (1981), 66 Ohio St.2d 259, 261; 421 N.E.2d 152. Zoning

ordinances which restrict the use of real property must be strictly construed against the governmental

entity. (Id.) The scope of the restrictions in a zoning ordinance cannot be extended to include

limitations not clearly prohibited. (Id.)

Despite that clear precedent, the court of appeals required Mr. Wenker to prove "beyond

a reasonable doubt" that the ordinance was so unclear that he could not understand that it

9

prohibited his conduct. (Attachment A, p.3.) Instead of strictly construing the Ordinance against

Indian Hill, the Court of Appeals "indulge[d] in every reasonable interpretation in favor of

finding the statute constitutional." (Id)

Mr. Wenker submits that was reversible error. Since Mr. Wenker was charged with a crime

based on an otherwise legal sale of real property, Mr. Wenker is doubly entitled to interpretation

of the Ordinance in his favor.

In addition, Mr. Wenker is not challenging the plain meaning of the statute. He is

challenging the strained interpretation adopted by Indian Hill. Section 51.5 can be plainly read to

prohibit further reduction of Parcel 22 or Parce125. It cannot be read to provide that by acquiring

adjoining nonconforming parcels, those parcels automatically merge into a single confonning parcel.

Neither court below analyzed Mr. Wenker's arguments under the appropriate standard.

When strictly scrutinized, the Section 51.5 of the Ordinance cannot form the basis of the

prosecution Indian Hill pursued. For example, the disjunctive phrase "lot or parcel of land" is

repeated several times in Section 51.5. The use of the disjunctive expressly indicates that "lot" and

"parcel of land" are two different concepts (at least for purposes of §51.5). City of Toledo v. Lucas

County Budget Comm. (1973), 33 Ohio St.2d 62,64; 294 N.E.2d 661 (defining the word "or" as a

function word indicating an alternative between different or unlike things); Webster's Ninth New

Collegiate Dictionary, 1988, p. 364 (defining disjunctive as "expressed by mutually exclusive

alternatives joined by `or"').

But Indian Hill's interpretation is the discrete parcels comprised one "lot." The plain

language of §51.5, through its use of the disjunctive phrase "lot or parcel of land," renders that

interpretation impermissible.

10

Indian Hill argues that by acquiring adjoining nonconforming parcels, those parcels

automatically were "merged" to constitute a single conforming parcel. The Ordinance simply

does not say that. There is no discussion of adjoining parcels or lots at all in §51.5.

Nothing makes that more clear than the prosecutor's legal opinion, which states:

Based on the definition of "Lot" in the zoning ordinance and the commonly understoodlegal definition of "parcel," you have developed a legal theory that, once two or morenonconforming (less than one acre) lots or parcels are combined into commonownership as "one lot" such that they become conforming (one acre or more), theconforming lot or parcel cannot thereafter be divided if such division would causeeither portion to become nonconforming (less than one acre). (Emphasis added.)

Moreover, comparing §81 with §51.5 of the Ordinance reinforces the conclusion that

Indian Hill never intended to prevent transfers such as Mr. Wenker's. Section 81 states:

Lot of Record - On any lot of official record, as defined in Section 3 of this ordinance,at the time of the enactment of this ordinance, even though a smaller area and/orfrontage than required by this chapter in the district in which it is located, a one-familydwelling with its customary accessory structures may be authorized by the PlanningCommission urovided that the owner of the lot does not own any adiacent land andprovided that all structures are so designed and located as to conform as closely aspossible to the yard and distance from lot lines requirements of this ordinance for thedistrict in which the lot is located. (Emphasis added.)

Section 81 establishes that at the time the Ordinance was promulgated, Indian Hill

considered situations in which a single property owner owned land adjacent to a non-conforming

lot of record. Indian Hill elected to prohibit construction of a one-family dwelling on a

nonconforming official lot of record that existed in 1945 where the same owner owned any

adjacent land. There is no such language in §51.5.

By implication, the Ordinance never was intended to prohibit transfers of discrete parcels

simply because a property owner owned an adjacent parcel or lot. City of Fairbom v.

DeDomenico (1996), 114 Ohio App.3d 590, 594; 683 N.E.2d 820 (legislature's failure to

reference municipal ordinances indicates omission intentional). The court of appeals judicially

11

expanded the Ordinance and violated rules of statutory construction established and applied by

this Court.

Proposition of Law No. 2:

Zoning restrictions, particularly when used as the basis for criminal prosecution, areunconstitutionally vague if they fail to fairly inform citizens of the conduct that isprohibited.

All statutes must provide Ohio citizens with fair notice of the standards of conduct they

are required to obey. See, e.g., City of Columbus v. Thompson ( 1970), 25 Ohio St.2d 26, 30, 54

Ohio Op. 2d 162, 266 N.2d 57. A statute that does not fairly infonn a person of what conduct is

prohibited is unconstitutional. See, e.g., Thompson, 25 Ohio St.2d at 30. Criminal statutes must:

(1) be written so that a person of common intelligence is able to determine whatconduct is prohibited, and

(2) provide sufficient standards to prevent arbitrary and discriminatoryenforcement.

See, e.g., Akron, 67 Ohio St. 3d at 383-84; South Euclid, 49 Ohio St. 3d at 150-52.

In this case, the Ordinance has no language that would put a person of common

intelligence on notice that two separately described parcels originally owned by separate persons

"merge" into a single "lot or parcel" once they come into common ownership. The Ordinance

simply does not say that.

Instead, there is undisputed proof that the Ordinance was not written so that a person of

common intelligence would be able to determine that the acquisition of legally distinct adjacent

parcels by a common owner merged those parcels into a single "lot or parcel." The Indian Hill

City Manager is a person of at least "common intelligence." In fact, Mr. Bums is a fairly

uncommon person in this regard, unusually well suited to understand the Ordinance. By the time

of trial in July 2004, Mr. Bums could best be described as an expert in zoning ordinances. He

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was unable to determine whether Mr. Wenker's sale of distinct parcels was forbidden by the

Ordinance.

In this respect, the Court of Appeals made a serious legal error which this Court should

correct. Although the Court of Appeals wrote that that Indian Hills' own confusion did not

indicate vagueness because "governmental entities often seek legal opinions," (Attachment A at

p. 3), this misses the point. If Indian Hill's zoning expert was unable to determine whether the

Ordinance forbade Mr. Wenker's conduct, there was no reasonable means by which Mr. Wenker

reasonably could have anticipated the interpretation Indian Hill now advances.

Indian Hill argued that after its prosecutor developed the novel theory of plot merger, it

then explained the theory to Mr. Wenker before prosecuting him. That does nothing to

ameliorate the fundamental injustice of enforcing a statute that neither Mr. Wenker nor the

Indian Hill City Manager understood to forbid Mr. Wenker's conduct at the time he acquired or

sold the properties. The purpose of the vagueness doctrine is to provide Mr. Wenker with fair

notice before his transactions, not after. See, e.g., In re Complaint Against Harper (1996), 77

Ohio St. 3d 211, 221, 673 N.E.2d 1253 ("Vague laws offend several important values. First,

because we assume man is free to steer between lawful and unlawful conduct, we insist that laws

give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so

that he may act accordingly") (quoting Grayned v. Rockford (1972), 408 U.S. 104, 108, 92 S.

Ct. 2294, 33 L. Ed. 2d 222) (emphasis added).

Bolstering the conclusion that Mr. Wenker had no way of knowing his conduct could be

deemed criminal is Indian Hill's failure to prosecute identical transactions involving the same

parcels. Mr. Wenker was aware of the Brockage transfers and was aware the Brockages were

not prosecuted.

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Moreover, if it had been possible for a person of common intelligence to determine that

Mr. Wenker's simultaneous ownership of the two parcels would "merge" the parcels into a

single constructive "lot or parcel" that Mr. Wenker would thereafter be unable to divide, Mr.

Wenker could have structured the transaction to avoid prosecution. He could have purchased

Parcel 22 from Bernard Brockage, transferred the parcel to a third party, and then purchased

Parcel 39 for his own use, thereby avoiding Indian Hill's merger theory.

Indian Hill's interpretation of the Ordinance is the epitome of an unconstitutionally vague

statute. Allowing this precedent to stand sends an ominous message to property owners in Ohio

- your municipality may interpret a zoning restriction based upon what you intend to do with

your property rather than the language of the restriction itself. If it does, you may wind up with a

criminal record.

Proposition of Law No. 3:

The Ordinance lacks sufficient standards to prevent arbitrary and discriminatoryenforcement as interpreted and applied to Mr. Wenker and is unconstitutional asinterpreted and applied to Mr. Wenker.

Indian Hill's selective enforcement of the Ordinance represents perhaps the most

troubling aspect of this case. As outlined above, although identical transfers were made in 1993,

no citation was issued. The difference, according to Indian Hill, is that Mr. Wenker had an intent

to develop his property.

Indian Hill admits that the Ordinance does not indicate that violations of Section 51.5 of

the Ordinance are triggered by, or in any way relate to, a property owners' intent to develop the

property. Thus, the Ordinance contains no standards to prevent arbitrary and discriminatory

enforcement as it is interpreted and applied by Indian Hill.

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It also is illogical and defies common sense. While mens rea is an element of any crime,

defining the existence of a crime based upon an intent that is unrelated to the statue allegedly

violated is both preposterous and dangerous.

It would make no sense to have the crime of theft dependent upon whether the accused

intended to sell the stolen property or keep it for personal use. It similarly makes no sense to tie

an ordinance designed to prevent reduction in the area of non-conforming parcels to a property

owners' intent to develop. By doing so, Indian Hill has made it impossible for a man of common

intelligence to know if he has violated the Ordinance while reserving to itself the ability to

selectively enforce the Ordinance with no governing standards that are identifiable by the public.

CONCLUSION

Can a man be convicted of a crime when there is no way for him to anticipate the State

may think his conduct is criminal? Can prosecutor-created legal theories be used to criminalize

property transfers and prevent development of private property? Donald L. Wenker submits the

answers to those questions should be "no." Mr. Wenker requests that this Court accept

jurisdiction in this case so that these important issues will be reviewed on the merits.

Respectfully submitted,

Jolfa R. Ipsaro (0 0152300)ULMER & BERNE LLP

600 Vine Street, Suite 2800Cincinnati, Ohio 45202Tel: (513) 698-5104Fax: (513) 698-5105E-Mail: 'lipsaroc^r^,ulmer.comATTORNEYS FOR DEFENDANT-APPELLANT DONALD

WENKER

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LIST OF ATTACHMENTS

Attached hereto is a true and correct copy of the following document:

Attachment A: Date-stamped copy of Court of Appeals Judgment Entry being appealed.

CERTIFICATE OF SERVICE

IT IS HEREBY certified that a true and correct copy of the foregoing was served this

^J'̂'day of2007, via first-class U.S. Mail, postage prepaid, upon:

Scott D. Phillips, Esq.W. Joseph Scholler, Esq.FROST BROWN TODD LLC2200 PNC Center201 East Fifth StreetCincinnati, Ohio 45202Attorneys for Plaintfff-Appellee State of Ohio

Di^ rw

J hn R. Ips o rOne of the attorneys for Defendant/AppellantDonald L. Wenker

425682.1

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Memorandum of Appellant Donald L. Wenkerin Support of Jurisdiction:

Attachment A: Date-stamped copy ofCourt of Appeals Judgment Entry being appealed.

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIOI

HAMILTON COUNTY, OHIO tuD71947916

THE VILLAGE OF INDIAN HILL, . APPEAL NOS. C-o6o273C-o6o3o1

Plaintiff-Appellee/Cross- TRIAL NO. M-o3CRB-15674Appellant,

vs.

DONALD WENKER,

Defendant-Appellant/Cross-Appellee.

JUDGMENT ENTRY.

ENTEREDFEB 0 7 2007

iMAGB

We consider this appeal on the accelerated calendar, and this judgment entry

is not an opinion of the court.'

Donald Wenker appeals his conviction for a violation of the Indian Hill

Zoning Ordinance. Indian Hill cross-appeals the fine that the trial court imposed for

the violation. We conclude that neither party has raised a meritorious assignment of

error, and we therefore affirm the judgment of the trial court.

These appeals concern two groups of parcels of land in the village of Indian

Hill. In the first group are the parcels numbered 529-115-22 ("parcel 22") and 529-

115-39 ("Parcel 39"). In 1993, Bernard S. Brockage conveyed parcel 22 to Wenker.

That same year, Brockage's son, Robert J. Brockage, conveyed parcel 39 to Wenker.

Parcel 22 was .79 acres, and parcel 39 was .794 acres. In 1994, Wenker conveyed

I See S.Ct.R.Rep.Op. 3(A), App.R. n.i(E), and Loc.R. 12.

OHIO FIRST DISTRii T COURT OF APPEALS

parcel 22 to his son, Randall Wenker. Randall Wenker later conveyed parcel 22 to

Donald and Mary Gleason.

Adjacent to the first group of parcels is a group of parcels numbered 529-115-

25 ("parce125"), 529-115-34 ("parcel 34"), and 529-115-35 ("parcel 35"). The sizes

of parcels 25, 34, and 35 are .661 acres, .33 acres, and 1.65 acres, respectively, for a

total of 2.641 acres. In 1958, a portion of parcels 34 and 35 was conveyed to a buyer

by Robert Gruesser, leaving a total acreage of 2.131 for parcels 25, 34, and 35. In

1964, Gruesser conveyed parcels 25, 34, and 35 to Edmond and Loretta Tschan. In

1997, Loretta Tschan conveyed the three parcels to Wenker. That same year, Wenker

conveyed parcel 25 to his daughter, Wendy Chute.

Indian Hill asserted that Wenker's conveyances of land to his son and

daughter constituted violations of its zoning ordinance, which prohibited reducing a

lot below the acreage required by the ordinance. The parcels in question were in

district C, in which lot sizes were required to be at least one acre. Indian Hill

asserted that Wenker's conveyances resulted in lots that were less than one acre.

Indian Hill suggested to Wenker that he convey more property to the

Gleasons and to his daughter to bring the lots into compliance. After negotiations

failed to resolve the issue, Indian Hill cited Wenker to Mayor's Court. The Mayor of

Indian Hill found that Wenker had violated Section 51.5 of the ordinance and fined

him $50 for each day from March 24, 2003, until the violations were corrected.

Wenker appealed to the Hamilton County Municipal Court. After a trial before the

court, the court found Wenker guilty of the violations and fined him $50.

Wenker has appealed his conviction. And Indian Hill has appealed the fine,

arguing that the court should have imposed a fine of $5o for each day that Wenker

failed to remedy the violations.

Before addressing whether the conveyances violated the ordinance, we

consider Wenker's second assignment of error, in which he asserts that the Indian

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OHIO FIRST DISTRICT COURT OF APPEALS

Hill Zoning Ordinance is unconstitutionally vague as applied to his conduct. To

succeed on this assignment of error, Wenker must prove beyond a reasonable doubt

"that the [ordinance] was so unclear that he could not reasonably understand that it

prohibited the acts in which he engaged."2 He must show that the ordinance was

vague "not in the sense that it requires a person to conform his conduct to an

imprecise but comprehensible normative standard, but rather in the sense that no

standard of conduct is specified at all."3 We must "indulge in every reasonable

interpretation in favor of finding the statute constitutional."4

Section 51.5 provides that "[n]o non-conforming lot or parcel of land shall be

further reduced in area. No lot or parcel of land which complies as to lot area for the

district in which it is located shall be reduced in area so that its remaining area fails

to meet the requirements of the Zoning Ordinance; and any lot or parcel created by

the violation of these terms •"' shall be deemed to be a non-conforming lot."

Section 37.1 defines a lot as "[a]ny parcel or plot of land occupied or intended to be

occupied by one structure and its accessory structures and uses, including the open

spaces required by this ordinance •`"." We conclude that the ordinance provides

adequate guidelines for a property owner to determine when a conveyance will result

in a nonconforming lot. And the ordinance establishes explicit standards to prevent

arbitrary and discriminatory enforcement.

Wenker argues that the vagueness of the ordinance is demonstrated by the

village's resort to its attorneys for an opinion about whether the ordinance had been

violated. But governmental entities often seek legal opinions before concluding that

a law has been violated. We conclude that the request for a memorandum and the

4 State u. Anderson (1991), 57 Ohio St.3d 168,171, 566 N.E.2d 1224.3 Coates u. Cincinnati (1970,402 U.S. 611, 614, 91 S.Q. 1686.4 T'oledo v. Ross (Aug. 31, 2oo1), 6th Dist. Nos. L-oo-1337 through L-oo-1342, citing Perez u.Cleveland (1997), 78 Ohio St.3d 376, 378-9, 678 N,E.2d 537.

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OHIO FIRST DISTRICT COLTRT OF APPEAIB

memorandum itself do not indicate that the ordinance could not have been

reasonably understood.

Nor are we persuaded by Wenker's argument that the vagueness of the

ordinance is demonstrated by the village's failure to enforce it when Bernard

Brockage conveyed parcel 39 to his son, Robert Brockage. That the village should

have cited another person for a violation does not mean that the ordinance itself

encourages arbitrary enforcement. We conclude that the ordinance is not vague.

The second assignment of error is overruled.

Having concluded the Indian Hill Zoning Ordinance is not unconstitutionally

vague, we turn to Wenker's first assignment of error, in which he asserts that there

was insufficient evidence to establish a violation of section 51.5. A sufficiency

argument challenges whether the state presented adequate evidence on each element

of the offense.5

Wenker argues that he conveyed discrete parcels of land to his son and

daughter, and that the conveyances did not reduce the area of those parcels. But

Wenker's argument ignores that part of the ordinance that refers to lots. Michael

Burns, Indian Hill's city manager, testified that parcels 22, 34, and 35 constituted

one lot, and that parcels 25 and 39 constituted another lot. His testimony that each

group of parcels contained only one house was not disputed. According to the

definition of lot in section 37.1, the groups of parcels constituted two lots. We

conclude that Indian Hill presented sufficient evidence that Wenker's conveyances

had resulted in lots with an area of less than the one acre required in district C.

Wenker's assignment of error is not well taken.

5 See State v. Thompkins, 78 Ohio St.3d 38o, 386, t997-Ohio-5z, 678 N.E.2d 541.

4

OHIO FIRST DISTRICT COURT OF APPEALS

In the sole assignment of error in its cross-appeal, Indian Hill asserts that the

trial court erred when it refused to order Wenker to pay a fine of $50 for each day of

the violation.

At the time of trial court's decision, section 95 of the Indian Hill Zoning

Ordinance provided that °[alny person **" who violates, disobeys, omits, neglects or

refuses to comply with, or who resists the enforcement of, any of the provisions of

this ordinance, shall be guilty of a minor misdemeanor and on conviction thereof

shall be fined not less than twenty-five dollars ($25.00) or more than fifty dollars

($50.00) for each offense. Each and every day that a violation continues shall

constitute a separate offense."

Indian Hill argues that the trial court erred when it did not impose a fine of

$50 for each day that Wenker continued to be in violation of the ordinance. But a

defendant can be fined for a violation only "on conviction thereof." Wenker was

convicted of only one violation of the ordinance. He was not charged with, and

therefore, not convicted of, violating the ordinance on multiple days. We conclude

that the trial court's fine of $5o was not improper. The cross-assignment of error is

not well taken.

We therefore affirm the judgment of the trial court.

Further, a certified copy of this Judgment Entry shall be sent to the trial court

under App.R. 27. Costs shall be taxed under App.R. 24.

HILDEBRANDT, P.J., SUNDERMANN and HENDON, JJ.

To the C1erk:

Enter upon the Journal of th ou on February 2007

per order of the CourtPr iding Judge

5