# Stevens v. City of Columbus, Ohio

> District Court, S.D. Ohio · July 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10375868

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** July 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10375868

## How later opinions describe it (automated extraction)

- finding unconstitutional a zoning ordinance which deprived mobile homeowners of an existing use of their property by imputing their abandonment after they had discontinued use of the property for six months or more
- noting that Ohio Civil Rule 57 means that “the existence of the R.C. Chapter 2506 remedy does not preclude resort to an action for a declaratory judgment.”
- noting that the “burden of proof remains with the party challenging an ordinance's constitutionality, and the standard of proof remains ‘beyond fair debate.’ ”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ANDREW H. STEVENS, and :
MELANIE COPENHAVER, :
:
Plaintiffs, : Case No. 2:20-CV-1230
:
v. : Chief Judge Algenon L. Marbley
:
CITY OF COLUMBUS, OHIO, and :
TIMOTHY J. NOLL :
In his official capacity as Code Enforcement :
Officer of the City of Columbus, OH : Magistrate Judge Deavers
:
Defendant. :

ORDER
This matter is before the Court on Plaintiffs’ Motion for a Preliminary Injunction (“PI”).
(ECF No. 3). On April 8, 2020, Plaintiffs filed a motion to consolidate the hearing on their motion
for a preliminary injunction with trial on the merits. (ECF No. 12). On April 17, 2020, Defendants
filed a response requesting that this Court deny Plaintiffs’ motion for preliminary injunctive relief
and for consolidation of the PI hearing with trial on the merits. (ECF No. 15). This Court granted
Plaintiffs’ motion to consolidate the PI hearing with trial on the merits because the facts of the case
were not in dispute and the issues for determination were primarily legal. (ECF No. 24). For the
reasons set forth below, this Court DENIES Plaintiffs’ Motion for injunctive and declaratory
relief.
I. BACKGROUND
This case relates to the City of Columbus’ landscape alteration policies for owners of
homes located in the City’s historic districts. Plaintiffs, Andrew Stevens and Melanie
Copenhaver, purchased a home that is not subject to any restrictive covenants but is located
within the City of Columbus’ Bryden Road Historic District. ECF No. 1 at 3-4; ECF No. 3 at 4).
They renovated the home and the yard, and as part of the renovation process, installed a terraced
garden in the front yard. Id.
Plaintiffs’ Home at 1734 Bryden Road - August 2018 (Before Landscaping)
Plaintiffs’ Home at 1734 Bryden Road - October 2018 (After Landscaping)

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The Bryden Road Historic District, where Plaintiffs’ home is located, is governed by the
City of Columbus’s Planning and Historic Preservation Code (“Historic Preservation Code”),
codified in Title 31 of the City’s Code. The City’s Historic Preservation code was:
enacted to preserve and promote the public health, safety and welfare by means of
regulations and restrictions enacted to encourage the orderly growth and development of
the city; to provide for adequate light, air, open space and convenience of access; to
protect against fire and natural hazards; and to maintain and enhance the value of
buildings, structures and land throughout the city.
Columbus City Code § 3101.01. The Historic Preservation Code requires that property owners in
certain historic districts first obtain certificates of appropriateness (also, “permits’’) prior to
altering or making significant changes to their property.
In June 2018, Defendant Timothy J. Knoll, a Columbus city code enforcement officer,
issued Stevens a code violation notice for having installed a retaining brick wall in his front yard
without first obtaining a required certificate of appropriateness from the Historic Resource

Commission composed of individuals appointed by the mayor. Id. at 5; (ECF No. 15 at 2). Mr.
Stevens was directed to comply with the notice within 30 days or face significant fines and
punishment of sixty days imprisonment. Id. at 5. Mr. Stevens’ appeal to keep the
“improvements” to his yard were denied by the City of Columbus Historic Resources
Commission (“HRC”) in December 2018 because the garden was not “‘in character with the

neighborhood or the house’ because it ‘was too suburban.’” Id. at 6.
After the HRC denied Mr. Stevens’ request to keep his “improvements,” Stevens
appealed this denial to the Board of Commission Appeals in January 2019. (ECF No. 1 at 7). The
Board of Commission Appeals (“BCA”) denied his appeal in April 2019. Id. Mr. Stevens next
appealed the BCA’s decision to the Environmental Division of the Franklin County Municipal
Court. Id. at 8. The Municipal Court ultimately dismissed Mr. Stevens’ case without prejudice
for lack of subject matter jurisdiction since the appeal was in essence a constitutional challenge
to the Columbus zoning ordinance for which the Court lacked the jurisdiction to determine the
merits of the claim and no facts were alleged regarding improper or unconstitutional acts by the

reviewing administrative bodies. (ECF No. 15-1 at 3).
Plaintiffs argue that they launched their appeal in the Municipal Court because City Code
§3118.09 provides that the BCA’s decision is appealable only to it. (ECF No. 1 at 8). Defendants
argue that instead of appealing to the Municipal Court, Mr. Stevens should have appealed the
BCA’s decision to the Franklin County Court of Common Pleas pursuant to Oh. Rev. C. §
2506.01, since his appeal was “actually a declaratory judgment action challenging the
constitutionality of such action” and not merely an “appeal of the decision of an administrative
body.” (ECF No. 15 at 2).
Mr. Stevens requests that this Court permanently enjoin the City of Columbus from
imposing criminal, civil, or other penalties on Plaintiff and other Columbus homeowners if they
fail to obtain Historic Resources Commission approval of gardening and landscaping alterations.
He argues that this landscaping policy violates his rights under the due process clause of the
Fourteenth Amendment since the standards used by the members of the Historic Resources

Commission are so broad and vague that “no person of ordinary intelligence can predict what is
subject to its review or what should be approved.” Id. at 5.
II. STANDARD OF REVIEW
This Court has granted Plaintiffs’ motion to partially consolidate the preliminary injunction
hearing with trial on the merits because the facts of this case are not in dispute and the issues in
this suit are entirely legal in nature. (ECF No. 24). Accordingly, in determining whether to grant
Plaintiffs’ requests for declaratory and injunctive relief, this Court will consider the factors that
courts consider in determining whether to grant a permanent injunction.
When determining whether to grant a request for a permanent injunction, Courts require a

plaintiff to show: “(1) that [he] has suffered an irreparable injury; (2) that remedies available at
law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering
the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and
(4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v.
MercExchange, L.L.C., 547 U.S. 388, 391, 126 S. Ct. 1837, 1839, 164 L. Ed. 2d 641 (2006).
Furthermore, the decision to grant or deny permanent injunctive relief “is an act of equitable
discretion by the district court.” Id. A plaintiff is entitled to a permanent injunction if he or she can
establish that he or she “suffered a constitutional violation and will suffer ‘continuing irreparable
injury’ for which there is no adequate remedy at law.” Deja Vu of Nashville, Inc. v. Metro. Gov't
of Nashville & Davidson County, 466 F.3d 391, 394 (6th Cir.2006) (citing Women's Med. Prof'l
Corp. v. Baird, 438 F.3d 595, 602 (6th Cir.2006)).
III. ANALYSIS
A. Constitutional Violation
Plaintiffs challenge the Historic Preservation Code both facially and as applied to them

arguing that sections of the ordinance are impermissibly vague in violation of the procedural due
process guarantees of the United States Constitution and the substantive property rights guaranteed
in the Ohio Constitution. (ECF No. 3). Defendants argue that Plaintiffs are unable to demonstrate
an irreparable injury because they have not exhausted their administrative remedies and the City’s
regulations are not unconstitutional either on their face or as applied. (ECF No. 15 at 5).
1. Failure to exhaust administrative remedies
Defendants argue that Plaintiffs’ motion should be denied since Stevens failed to exhaust
administrative remedies by pursuing an appeal pursuant to Oh. Rev. C. 2506.01 in the Franklin
County Court of Common Pleas. (ECF No. 15 at 6). Oh. Rev. Code §2506.01 provides that:

…every final order, adjudication, or decision of any officer, tribunal, authority, board,
bureau, commission, department, or other division of any political subdivision of the state
may be reviewed by the court of common pleas of the county in which the principal
office of the political subdivision is located as provided in Chapter 2505. of the Revised
Code.
(B) The appeal provided in this section is in addition to any other remedy of appeal
provided by law.
Oh. Rev. Code §2506.01 (A)-(B)
Defendants argue that Plaintiffs have not exhausted their remedies because they were
required to file an appeal pursuant to § 2506.01 of the Oh. Rev. Code. (ECF No. 15 at 6). The
Ohio Supreme Court, however, has made clear that individuals challenging existing zoning
restrictions may do so either through a §2506 action or a through a declaratory judgment action.
See Driscoll v. Austintown Assocs., 42 Ohio St. 2d 263, 270–71, 328 N.E.2d 395, 401 (1975)
(noting that Ohio Civil Rule 57 means that “the existence of the R.C. Chapter 2506 remedy does
not preclude resort to an action for a declaratory judgment.”). In Driscoll, the Supreme Court of
Ohio clarified that there are substantive differences between a 2506 action and a declaratory
judgment action and that while both “seek the same ultimate relief-elimination of an existing
zoning regulation which prohibits a proposed use of the property” the similarities end there since

a “declaratory judgment action is independent from the administrative proceedings; it is not a
review of the final administrative order.” Driscoll v. Austintown Assocs., 42 Ohio St. 2d 263,
270-71, 328 N.E.2d 395, 401 (1975).
While the Supreme Court of Ohio does require a plaintiff to exhaust administrative
remedies by obtaining a “final decision concerning the application of a zoning regulation to the
specific property in question,” there is no requirement that a plaintiff first pursue a § 2506 appeal
before bringing a declaratory judgment action since they are alternative remedies. See Karches v.
City of Cincinnati, 38 Ohio St. 3d 12, 15-16, 526 N.E.2d 1350, 1355 (1988). Furthermore, where
a plaintiff challenges the constitutionality of a proposed ordinance, a declaratory judgment

action, and not a 2506 appeal is the appropriate method of challenging the ordinance. See
Schomaeker v. First Nat. Bank of Ottawa, 66 Ohio St. 2d 304, 313, 421 N.E.2d 530, 537 (1981)
(determining that plaintiff could not pursue declaratory judgment action because plaintiff does
not “attack the validity or constitutionality of the Ottawa Zoning Ordinance in any respect, but
seeks relief essentially on the basis that the granting of the use variance was against the weight of
the evidence and contrary to law.”)
Here, Plaintiffs exhausted their administrative remedies by appealing the denial of their
request to keep the “improvements” made to their yard to the HRC and the BCA. (ECF No. 15 at
2). Furthermore, because Plaintiffs challenge the constitutionality of the ordinances at issue,
Plaintiffs were not obligated to exhaust their administrative remedies nor bring a § 2506.01
challenge before pursuing a claim for declaratory relief. See Jones v. Chagrin Falls, 77 Ohio St.
3d 456, 460, 674 N.E.2d 1388, 1391 (Oh. 1997) (noting that “exhaust[ing] administrative
remedies is not a necessary prerequisite to an action challenging the constitutionality of a statute,
ordinance, or administrative rule” since “administrative bodies have no authority to interpret the

Constitution, requiring litigants to assert constitutional arguments administratively would be a
waste of time and effort for all involved.”).
With respect to Plaintiffs’ claims brought pursuant to federal law, no exhaustion of
administrative remedies is required for Section 1983 actions, absent a statute requiring such
exhaustion. See Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2167, 204 L. Ed. 2d 558
(2019) (noting “the settled rule is that exhaustion of state remedies is not a prerequisite to an
action under [42 U.S.C.] § 1983.”) (internal quotation marks omitted); Nasierowski Bros. Inv.
Co. v. City of Sterling Heights, 949 F.2d 890, 894 (6th Cir. 1991) (noting “a procedural due
process claim is instantly cognizable in federal court without requiring a final decision on a

proposed development from the responsible municipal agency.”)
Accordingly, Defendants’ argument that Plaintiffs were required to exhaust their
administrative remedies by filing a § 2506 appeal is without merit.
2. Violation of Procedural Due Process Guarantees of the U.S. and Ohio
Constitutions
Plaintiffs argue that the landscaping enforcement scheme (“Landscaping Mandate”) set
out in Columbus City Code § 3116 is unconstitutional on its face and as applied because this
scheme is (a) vague; (b) impermissibly delegates legislative authority to private citizens; and (c)
shifts the burden to homeowners to prove that their landscaping complies with vague provisions
of the Columbus City Code.
To state a claim for a violation of procedural due process, a Plaintiff must allege: “(1)
that it had a life, liberty, or property interest protected by the Due Process Clause of the
Fourteenth Amendment; (2) that it was deprived of that protected interest within the meaning of
the Due Process Clause; and (3) that the state did not afford it adequate procedural rights before
depriving it of its protected interest.” Golf Vill. N. LLC v. City of Powell, Ohio, 333 F. Supp. 3d

769, 778 (S.D. Ohio 2018) (citing Med. Corp., Inc. v. City of Lima, 296 F.3d 404, 409 (6th Cir.
2002)). A plaintiff must first demonstrate that he possessed a protected property interest before a
court will consider whether he was deprived of that interest and whether the government
provided appropriate process before (or after) such deprivation occurred. See Warren v. City of
Athens, 411 F.3d 697, 708 (6th Cir. 2005). The United States Constitution does not create
property rights; instead, those rights are created and defined by independent sources such as state
law. Hamilton v. Myers, 281 F.3d 520, 529 (6th Cir. 2002). State court decisions provide
“controlling authority for such determinations.” Id.
Defendants do not contest that Plaintiffs have a property interest protected by the Due

Process Clause but do contest that Plaintiff was deprived of that interest and that the state did not
afford adequate procedural rights. (ECF No. 15 at 6-8). Plaintiffs argue that the Landscaping
Mandate violates due process because it subjects them to fines and potential imprisonment and in
effect “controls their private property with vague standards, the enforcement of which are
delegated to untrained private individuals … [who] wield that power arbitrarily such that
planting grass, shrubs or vegetables unexpectedly requires government approval and is often
disallowed.” (ECF No. 3 at 8).
a. Vagueness of Landscaping Mandate
Plaintiffs argue the Landscaping Mandate is vague because it requires a homeowner to
ensure that any alteration made to the landscaping of the property, no matter how minor, be
approved in advance as (1) “compatible to … other [landscaping on the property] and to the
subject building or structure as well as to adjacent contributing properties, open spaces and the
overall environment” and (2) that the landscaping be “appropriate.” (ECF No. 3 at 10). Plaintiffs

argue that these are broad and indeterminate standards that do not provide meaningful notice of
the conduct proscribed. Id. Defendants argue that the Columbus Historic Preservation Code
provides discernable standards and that homeowners have notice of those standards. (ECF No.
15).
Void for vagueness doctrine prohibits criminal laws that fail “to give ordinary people fair
notice of the conduct it punishes, or [are] so standardless that it invites arbitrary enforcement.”
Johnson v. United States, 135 S. Ct. 2551, 2556 (2015). The nature of the statute dictates the
standard to be applied, with civil laws that do not implicate the First Amendment “held to a less
strict vagueness standard than criminal laws ‘because the consequences of imprecision are

qualitatively less severe.’” Buckle Up Festival, LLC v. City of Cincinnati, 336 F. Supp. 3d 882,
886 (S.D. Ohio 2018) (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 498, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362 (1982)). Even where a case does not
involve the First Amendment, however, “courts may engage in a facial analysis where the
enactment imposes criminal sanctions.” Belle Maer Harbor v. Charter Twp. of Harrison, 170
F.3d 553, 557 (6th Cir. 1999)
To survive a vagueness analysis, the contested statute or regulation must: (1) “give the
person of ordinary intelligence a reasonable opportunity know what is prohibited”; (2) “provide
explicit standards for those who enforce them” to prevent “arbitrary and discriminatory
enforcement”; and (3) not impinge upon first amendment rights.” Grayned v. City of Rockford,
408 U.S. 104, 108-09 (1972); State v. Varsel, 11 N.E.3d 327, 330 (Ohio Ct. App. 2014).
The failure to define a term in a statute or an ordinance does not automatically “render the statute
unconstitutionally vague” where “the common meaning of the word provides both adequate
notice of the conduct prohibited and of the standards for enforcement.” Belle Maer, 170 F.3dat

558 (6th Cir. 1999).
Defendants argue that the Historic Preservation Code does not prevent “Plaintiffs from
building on, or making any minor alterations to their property” instead, the city
“has implemented a permitting process in order to preserve the character of its historic districts.”
(ECF No. 15 at 6-7). § 3116.04 of Columbus’ Planning and Historic Preservation Code provides,
in relevant part:
Except in cases excluded by C.C. 3116.23, no person shall construct, reconstruct, alter,
change the exterior color of or demolish any listed property or architectural feature
thereof or any structure or architectural feature now or hereafter in a district or make site
improvements thereon without first applying for a certificate of appropriateness therefor
and obtaining either such certificate of appropriateness or a clearance.
Columbus City Code § 3116.04. Architectural feature is defined in part as the “exterior of a
property as is designed to be exposed to public view.” Columbus City Code § 3116.011 (A)(1).
The issuance of a certificate of appropriateness is governed by § 3116.09, which provides
that the Historic Resources Commission shall issue such a certificate if the:
alteration, construction, site improvement, or demolition is appropriate as defined by
the architectural standards in C.C. 3116.11, 3116.12, 3116.13 or 3116.14, respectively,
the pertinent typical architectural characteristics and such guidelines as the commission
shall have adopted.
Columbus City Code § 3116.09 (B)(1) (emphasis added). Of the four city code sections
mentioned in § 3116.09, Section § 3116.13 provides the standards for “site improvements,”
which includes improvements to landscaping, and states, in relevant part:
(A) Landscaping, parking, utility or service areas, walkways and similar improvements
should be compatible to each other and to the subject building or structure as well as to
adjacent contributing properties, open spaces and the overall environment.
Columbus City Code § 3116.13(A) (emphasis added). § 3116.11 provides the architectural
guidelines for alterations of architectural features and states:
The following standards shall apply to evaluation of the appropriateness of a proposed
alteration:
(1) Every reasonable effort shall be made to use the property for its originally intended
purpose or to provide a compatible requiring minimal alteration.
(2) The distinguishing characteristics of the property shall not be destroyed. The removal
or alteration of any historic material or distinctive architectural feature shall be avoided
whenever possible.
(3) Each property shall be recognized as a product of its own time. Alterations that have
no historical basis and which seek to create an earlier appearance shall be discouraged.
(4) Changes which have taken place over the course of time are evidence of the property's
history and environment. These changes may have acquired significance in their own
right and, if so, this significance shall be respected.
(5) Distinctive stylistic features and examples of craftsmanship that characterize a
property shall be treated with sensitivity.
(6) Deteriorated architectural features shall be repaired rather than replaced whenever
possible. In the event replacement is necessary, the new material shall match the material
being replaced in composition, design, color, texture and other visual qualities. Repair or
replacement of missing architectural features shall be based on accurate duplications of
features, substantiated by historic, physical or pictorial evidence rather than on
conjectural designs or the availability of different architectural elements from other
structures.
(7) The gentlest means possible shall be used to clean the property's surface if necessary.
Sandblasting and other cleaning methods that will damage the historic building materials
are prohibited.
(8) Archaeological resources affected by or adjacent to any alteration shall be protected
and preserved.
(9) Contemporary design for alteration to a property shall not be discouraged when such
alteration does not destroy significant, historical, architectural or cultural material and its
design is compatible with the size, scale, color, material and character of the property, its
environment and surrounding contributing properties.
(10) Whenever possible, a new addition or alteration shall be accomplished so that its
future removal will not impair the essential form and integrity of the structure.
(11) Exterior cladding of a structure shall be consistent with the original materials used
on the property.
(12) In passing upon appropriateness, the commission shall consider, in addition to any
other pertinent factor, the architectural characteristics typical of structures in the district
or listed property, the historical and architectural value and significance, architectural
style, general design, arrangement, texture, material and color of the architectural feature
involved and its relation to the architectural features of other contributing properties in
the immediate neighborhood.
Columbus City Code § 3116.11.
Plaintiffs argue that the City’s Historic Preservation Code is unconstitutionally vague in
two ways. First, they argue that the Code’s requirement that homeowners obtain a certificate of
appropriateness (or “permit”) prior to altering an “architectural feature” or making “site
improvements” does not give them notice that they are required to obtain a permit prior to doing
“minor landscaping, gardening and yard maintenance.” (ECF No. 3 at 16). Second, Plaintiffs
argue that the standards used by the commission in determining whether to grant a permit for
landscaping— whether the improvements are “compatible” or “appropriate”— are vague and
subject to arbitrary enforcement.

As to the first vagueness challenge, the City Code does appear to require homeowners in
a historic district to first obtain a permit before making significant alterations to their property
including alterations to “architectural features” and “site improvements.” The Code defines
architectural features broadly to encompass the “exterior of a property as is designed to be
exposed to public view.” Columbus City Code § 3116.011. The code also defines “site
improvement” as “a significant exterior improvement other than a building or structure including
but not limited to, landscaping; parking, utility or service area; walkway; fence; mound; wall;
sign; mechanical system or similar improvement.” Columbus City Code § 3116.018. The section
of the Code dealing with site improvements expressly states that landscaping must be compatible

with other features of the property and to neighboring buildings and structures and the “overall
environment,” thereby giving notice to property owners that changes to the exterior of a property
located in a historic district will require a certificate of appropriateness. This provision
unequivocally requires a homeowner to obtain a permit before making changes to visible
landscaping or, as was done here, installing a retaining brick wall to modify the front yard of the
home. The fact that Plaintiffs take issue with the substance of this law does not detract from its
clarity.1
As to the second vagueness challenge, the standards used by the Historic Resources
Commission to determine whether to issue a permit are sufficiently clear under both state and

federal law. Plaintiffs take issue with the standards, arguing they are vague since they use the
terms “appropriate” and” compatible.” Where the meaning of a particular provision in a statute
appears unclear, however, that provision must be examined in context of the entirety of the
ordinance. See Greenacres Found. v. Zoning Bd. of Bldg. Appeals, 2012-Ohio-4784, ¶ 10 (citing
In re Univ. Circle, Inc., 56 Ohio St.2d 180, 184, 383 N.E.2d 139 (1978)).
While § 3116.09 (B)(1) does state that changes must be “appropriate,” the provision
specifies that what is appropriate is defined in four sections of the City Code, with the relevant
section, § 3116.13 indicating that site improvements must be “compatible” with the building and
neighboring properties. Accordingly, the operative standard that guides the commission’s

decisions as to whether a permit is issued is whether the landscaping or other changes are:
compatible to each other and to the subject building or structure as well as to adjacent
contributing properties, open spaces and the overall environment.
Columbus City Code § 3116.13(A) (emphasis added). While the Sixth Circuit has not addressed
this exact issue, both the Seventh and Fifth Circuit Courts of Appeal have upheld as
constitutional city ordinances that require a homeowner to ensure that changes to his or her
historic property are compatible with and conform to neighboring properties. See Boczar v.
Kingen, 6 F. App'x 471, 476 (7th Cir. 2001) (determining that Indianapolis statute creating

1 This Court will separately address below whether a law that requires preapproval of any changes to a property
violates the Ohio Constitution’s substantive property guarantees.
historic commission was constitutional and not vague where statute required commission to
consider “the historical and architectural style, general design, arrangement, size, texture, and
materials of the proposed work and the relation of the proposed work to the architectural factor
of other structures in the area”); Mayes v. City of Dallas, 747 F.2d 323, 325 (5th Cir. 1984)
(determining that Dallas ordinance creating historic preservation committee was constitutional

and guidelines articulated by ordinance were sufficiently clear where the guidelines required “the
color of a building … [to] harmonize with the structure's facade as well as complement the
overall character of the District” and “[t]he manner in which materials are used ... and the
fashion in which elements such as columns ... are utilized shall be compatible and harmonize
with the existing structures in the block”).
Furthermore, the Ohio Supreme Court has also previously upheld similar standards in the
context of historic district schemes. See Vill. of Hudson v. Albrecht, Inc., 9 Ohio St. 3d 69, 70,
458 N.E.2d 852, 854 (Oh. 1984). In Albrecht, the Ohio Supreme Court considered a similar
historic preservation scheme instated by the village of Hudson. That scheme set up an

Architectural and Historic Board of Review to ensure the maintenance of the historic character of
properties within the municipality by requiring that the board review all applications for building
permits. The standards used by the commission to grant or deny permits required the commission
to consider, in addition to “accepted and recognized architectural principles,” “the development
of adjacent, contiguous and neighboring buildings and properties for the purpose of achieving
safe, harmonious and integrated development of related properties.” Id. at 74, 77. The Ohio
Supreme Court determined that the ordinance clearly set forth “all the standards reasonably
necessary to guide the board in the exercise of its discretion” and that it was thus not an
“unlawful delegation of legislative authority.” Id. at 74.
Here, just as in Albrecht, the ordinance designating standards to be used in deciding
applications for permits requires the Historic Resources Commission to consider whether
proposed landscaping changes are compatible to other features of the property and to the
neighborhood as a whole. More broadly, the standards for alterations to historic properties
provide several other factors for the board to consider, in particular:

In passing upon appropriateness, the commission shall consider, in addition to any other
pertinent factor, the architectural characteristics typical of structures in the district or
listed property, the historical and architectural value and significance, architectural style,
general design, arrangement, texture, material and color of the architectural feature
involved and its relation to the architectural features of other contributing properties in
the immediate neighborhood.
Columbus City Code § 3116.11 (12).
At the preliminary injunction hearing Plaintiffs argued that Albrecht is distinguishable
since it was decided before the Ohio Supreme Court issued a decision holding that a higher level
of scrutiny applies to cases where a property owners’ rights are implicated in Norwood v.
Horney, 110 Ohio St. 3d 353, 379 (Oh. 2006). Norwood, however, was an eminent domain case
and the Supreme Court’s holding was expressly limited to those types of cases. Id. at 356
(holding “that the void-for-vagueness doctrine applies to statutes that regulate the use of
eminent-domain powers. Courts shall apply heightened scrutiny when reviewing statutes that
regulate the use of eminent-domain powers.”). The Ohio Supreme Court and this Court have
repeatedly observed that the Norwood decision does not apply outside of claims for eminent
domain, even where property rights are implicated. See In re Application of Columbus S. Power
Co., 134 Ohio St. 3d 392, 395 (Oh. 2012) (holding that statute requiring public utilities to
undergo an annual earnings review by a Public Utilities Commission and return “significantly
excessive earnings” was not void for vagueness and refusing to employ heightened scrutiny
despite the fact that case involved the taking of private property rights since “[w]e did not
formulate our holding in Norwood so broadly . . . [w]e held that heightened scrutiny
applies ‘when a court reviews an eminent-domain statute or regulation.’”) (emphasis in
original); Wayne Watson Enterprises, LLC v. City of Cambridge, 243 F. Supp. 3d 908, 919 (S.D.
Ohio 2017) (noting that Norwood only applies in eminent domain cases and did not apply in case
regarding city zoning ordinance affecting property owner’s access to a right of way since

“Norwood was a strict takings case assessing Ohio's power of eminent domain”), aff'd, 751 F.
App'x 760 (6th Cir. 2018).
Furthermore, the Norwood opinion did not alter the standard used for assessing the
vagueness of statutory terms, it merely held that the void for vagueness doctrine, which “is
usually applied in criminal law and First Amendment claims” can also be applied in eminent
domain cases and “in any case in which the statute challenged substantially affects other
fundamental constitutional rights.” 110 Ohio St. 3d at 380. Importantly, the Ohio Supreme Court
adopted the test used by federal courts in assessing the vagueness of a statute pursuant to the
United States Constitution and expressly noted that even using heightened scrutiny “a statute is

not void simply because it could be worded more precisely or with additional certainty …. [since
the] critical question in all cases is whether the law affords a reasonable individual of ordinary
intelligence fair notice and sufficient definition and guidance to enable him to conform his
conduct to the law; those laws that do not are void for vagueness.” Id.
Practically, what this means is that eminent domain regulations, criminal laws, and laws
implicating First Amendment rights can be examined for constitutionality both facially and as
applied, whereas civil regulations that do not implicate fundamental rights are examined for
constitutionality on an as-applied basis. See Belle Maer Harbor v. Charter Twp. of Harrison, 170
F.3d 553, 557 (6th Cir. 1999) (citing Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). In Albrecht, the Ohio Supreme
Court examined the facial constitutionality of a historic preservation scheme and determined that
it was not void for vagueness and provided sufficient standards in its delegation of authority to a
Historic Board of Review. Therefore, the Supreme Court of Ohio in Norwood left the Albrecht
holding undisturbed, and it controls this Court’s analysis as to whether the “compatibility”

standard is sufficiently clear.
Similar standards enacted pursuant to legislative schemes for historic preservation
districts have also been held sufficiently clear by state courts around the country. See Boczar v.
Kingen, No. IP 99-0141-C-T/G, 2000 WL 1137713, at *16 (S.D. Ind. Mar. 9, 2000) (collecting
cases), aff'd, 6 F. App'x 471 (7th Cir. 2001). See also Bellevue Shopping Ctr. Assocs. v. Chase,
574 A.2d 760, 763 (R.I. 1990) (determining that Newport city ordinance establishing a historic
zone and authorizing commission to approve or reject permits for modifying properties in zone
was not unconstitutionally vague where the ordinance’s guidelines required the historic
commission to consider “[t]he historic or architectural value or significance of the structure and

its relation to the historic value of the surrounding area”); Salvatore v. City of Schenectady, 530
N.Y.S.2d 863, 865 (N.Y. App. Div. 1988) (determining that standard requiring “compatibility . .
. with existing structures of historic or architectural value . . . and with the environment of open
spaces in the surrounding neighborhood” are “sufficiently precise and objectively verifiable to
give fair notice and provide minimal guidelines to safeguard against arbitrary or discriminatory
enforcement, and are clearly consistent with the legitimate legislative purposes of historic district
regulation”); South of Second Assocs. v. City of Georgetown, 196 Colo. 89, 94, 580 P.2d 807,
811 (1978) (noting that ordinance requiring historical commission to consider “the effect of the
proposed [change] upon the ‘general historical and/or architectural character of the structure or
area’ . . . the architectural style, arrangement, texture, and material used on existing buildings or
structures . . . and their relationship to other structures in the area” contains “sufficient standards
to advise ordinary and reasonable men as to the type of construction permitted, permits
reasonable application by the Commission, and limits the Commission's discretionary powers”);
City of Santa Fe v. Gamble-Skogmo, Inc., 389 P.2d 13, 19 (N.M. 1964) (ordinance requiring

historic committee to consider whether proposed changes would be in “harmony with adjacent
buildings, preservation of historical and characteristic qualities, and conformity to the Old Santa
Fe Style” provided sufficiently clear standards and did not vest “uncontrolled discretion in an
administrative body”).
Plaintiffs’ challenge to the ordinance on the grounds that it is unconstitutionally vague
fails since the ordinance provides sufficient guidelines for both homeowners and the reviewing
commission.
b. Delegation of Enforcement to Private Citizens Without Discernable Standards
Plaintiffs also take issue with the fact that the ordinance delegates the authority to grant

certificates of appropriateness to the Historic Resources Commission, arguing that this is a
“delegation of unfettered regulatory power to … unremovable and capricious non-governmental
actors” without discernable standards to guide their decision making. (ECF No. 3 at 19).
The Due Process Clause of the United States Constitution does prohibit the “standardless
delegation of power” to private persons. See Ctr. for Powell Crossing, LLC v. City of Powell,
Ohio, 173 F. Supp. 3d 639, 675 (S.D. Ohio 2016) (citing Eubank v. Richmond, 226 U.S. 137, 33
S.Ct. 76, 57 L.Ed. 156 (1912) and Washington ex rel. Seattle Title Trust Co. v. Roberge, 278
U.S. 116, 49 S.Ct. 50, 73 L.Ed. 210 (1928)). To be constitutionally valid, a legislative enactment
that delegates power to an enforcement body “must set forth sufficient criteria to guide the
administrative body in the exercise of its discretion.” Vill. of Hudson v. Albrecht, Inc., 9 Ohio St.
3d 69, 73–74, 458 N.E.2d 852, 857 (1984). The requirement that there be sufficient guidelines in
place, however, takes into account the fact that “it is not possible for the legislature to design a
rule to fit every potential circumstance” and that because of this, “legislation may be general in
nature, and discretion may be given to an administrative body to make subordinate rules, as well

as to ascertain the facts to which the legislative policy applies.” Id.
Plaintiffs take issue with the fact that the members of the commission are appointed by
the Mayor and are unelected “private parties.” (ECF No. 3at 19-20). Plaintiffs cite to two recent
decisions by other judges in this Court for support. See Rice v. Vill. of Johnstown, Ohio, No.
2:19-CV-504, 2020 WL 588127 (S.D. Ohio Feb. 5, 2020); Ctr. for Powell Crossing, LLC v. City
of Powell, Ohio, 173 F. Supp. 3d 639, 678 (S.D. Ohio 2016). In both cases, however, the issue
was not that power was delegated to an unelected body, but that the delegation of power was
unaccompanied by discernable standards. See Rice, 2020 WL 588127 (determining that
ordinance delegating power to determine citywide zoning classifications to Planning and Zoning

Commission contained insufficient standards to guide Commission’s decision making and thus
violated procedural due process doctrine); Ctr. for Powell Crossing, 173 F. Supp. 3d at 678
(finding unconstitutional a charter amendment that delegated legislative power to develop
citywide comprehensive zoning plan to a “Comprehensive Plan Commission” was
“unaccompanied by discernible standards” and essentially unreviewable by the City Council).2

2 Rice and Center for Powell Crossing are also distinguishable on the facts since the delegation
of power to private parties in those cases was not simply to determine compliance with an
existing zoning regulation, as is the case here, but the power to create and implement zoning
regulations and classifications that were essentially unreviewable by the delegating legislative
body.
Nothing in either United State Constitution or the Ohio Constitution prohibits a local
governing body from delegating power to an enforcement body or commission, so long as that
delegation of power is accompanied by clear standards. See Vill. of Hudson v. Albrecht, Inc., 9
Ohio St. 3d 69, 73–74, 458 N.E.2d 852, 857 (1984); Berman v. Parker, 348 U.S. 26, 35, 75 S.
Ct. 98, 104, 99 L. Ed. 27 (1954) (District of Columbia ordinance delegating authority to agency

to “eliminate … blighted areas” contained sufficiently definite standards to be constitutional). As
indicated above, the ordinance sets out sufficiently clear standards to guide the decision making
of the Historic Resources Commission. Accordingly, the delegation of power to the Historic
Resources Commission to issue certificates of appropriateness does not constitute a violation of
either the United States or Ohio Constitution’s procedural due process guarantees.
c. Unconstitutional Burden Shifting
Plaintiffs argue that the procedural due process violations are “multiplied” because the
Landscaping Compatibility Mandate forces “homeowners to prove compliance with these vague
standards and overcome [the] presumption against their property rights.” (ECF No. 3 at 23).

Plaintiffs cite to Speiser v. Randall, 357 U.S. 513, 526 (1958) to argue that the Historic
Preservation Code unconstitutionally shifts the burden on homeowners by presuming them liable
for prosecution and fines unless they are able to prove that their landscaping or gardening is not a
modification of a distinctive architectural feature or is sufficiently compatible with the property
and the neighborhood. (ECF No. 3 at 23). Plaintiffs, however, confuse the issue and conflate
where the burden of proof must lie in criminal enforcement actions with where the burden of
proof must lie in challenges to the applicability or constitutionality of a zoning ordinance.
In Speiser, appellants were veteran taxpayers applying for a California property tax
exemption but refused to execute an oath that they did not advocate the overthrow of the
government in order to qualify for that exemption. 357 U.S. at 515. California’s rationale for
requiring the oath was that the state could deny tax exemptions to individuals who engaged in
conduct that was punishable by two criminal statutes. The particular issue presented before the
U.S. Supreme Court was whether the state had chosen a fair method for determining whether a
taxpayer is a member of the class of individuals who could be criminally punished for

advocating the overthrow of the government. The Supreme Court determined that because the
state required individuals seeking the tax exemption to sign a loyalty oath, that requirement
impermissibly shifted the burden of proving that an individual was not a criminal onto the
individual, when the burden of proving criminality ordinarily lies with the state. Id. at 513. The
Supreme Court explained that, ultimately, the burden of proof can be placed on a defendant, but
only after the State has sufficiently provided evidence to allow a defendant to rebut the
allegations or to balance the availability of information without subjecting the defendant to
hardship. Id. at 524 (quoting Morrison v. California, 291 U.S. 82, 88-89 (1934)). What the State
of California had done was impermissible because it shifted the burden of proving innocence to

the taxpayer and limited his freedom of speech without due process. Id. at 521, 535.
Speiser is distinguishable because the permitting process at issue here is not a criminal
enforcement action. Here, the municipality did not presume Plaintiffs’ guilt or require them to
prove their innocence without due process. Rather, Plaintiffs failed to apply for a certificate of
appropriateness for the landscaping they performed on their property as required by C.C. §
3116.04, despite having applied for such permits for past projects on the same property. As a
result of their failure to apply for a permit before making changes to their historic property,
Plaintiff Stevens was issued a Columbus City Code Violation Notice. (ECF No. 15 at 2-3).
Should the City seek to enforce the ordinance through criminal charges, the burden remains on
the City to prove that Stevens did not obtain a permit before violating a city code provision and
that Defendant does not come within any exception contained in the ordinance. See State v.
Pierce, 164 Ohio St. 482, 487, 132 N.E.2d 102, 105 (Oh. 1956) (noting that in a “prosecution for
the violation of any zoning ordinance, the burden is on the zoning authority to show that the
defendant does not come within any exception in the ordinance”) (citing Village of Strongsville

v. McPhee, 142 Ohio St. 534, 27 Ohio Op. 466, 53 N.E.2d 522 (Oh. 1944).
Furthermore, unlike in Speiser, Plaintiffs do not bear the burden of proving their
innocence in order to apply for and obtain a government benefit (here the certificate of
appropriateness), and there is no presumption that their “improvements” are not compatible
simply because they received a city code violation notice. Plaintiffs do bear the burden of
proving why they should not have to comply with the Historic Preservation Code due to
“substantial economic hardship or unusual and compelling circumstances” in order to obtain a
permit pursuant to Columbus City Code § 3116.08. Such burden shifting is permissible, even
under Ohio law, since Plaintiffs are challenging the constitutionality of the Historic Preservation

Ordinance and seeking a variance from this generally applicable zoning ordinance. See Jaylin
Investments, Inc. v. Moreland Hills, 107 Ohio St. 3d 339, 341 (Oh. 2006) (noting that the
“burden of proof remains with the party challenging an ordinance's constitutionality, and the
standard of proof remains ‘beyond fair debate.’ ”); Bd. of Bldg. & Zoning Appeals of City of
Highland Heights, Ohio v. Grande, No. 69082, 1996 WL 65897, at *4 (Ohio Ct. App. Feb. 15,
1996) (noting that property owner bears “the burden of proving his entitlement to a variance”)
(citing Duncan v. Vill. of Middlefield, 23 Ohio St. 3d 83, 86, 491 N.E.2d 692, 695 (1986));
Brown v. City of Cleveland, 66 Ohio St. 2d 93, 95, 420 N.E.2d 103, 105 (1981) (noting that
zoning ordinances are presumed valid and the party “challenging the relevant provisions of the
Cleveland Zoning Code, has had, at all stages of this litigation, the burden of demonstrating that
portions of the zoning code are either facially unconstitutional or unconstitutionally applied to
him.”).
3. Violation of Property Rights Protected by Ohio Constitution
Plaintiffs also argue that the Historic Preservation Code violates the Ohio Constitution’s

substantive due process and equal protection guarantees for property rights. (ECF No. 3 at 27).
Plaintiffs argue that the provisions of the code requiring homeowners to obtain government
approval of “every exterior alteration of a private home” is “arbitrary,” “unduly oppressive,” and
not “necessary for the public welfare” because: (1) the standards guiding the permit process are
unrelated to historical preservation; and (2) impose a standard requiring “conformity” with
neighboring properties rather than “historic preservation.” Id. Plaintiffs ask this Court to “carefully
scrutinize” the City’s Historic Preservation Code using a standard of review that is higher than
rational basis but less than strict scrutiny, arguing that this heightened standard of review is
justified by the Ohio Constitution’s substantive property guarantees. (ECF No. 3 at 28) (citing

Yoder v. City of Bowling Green, Ohio, No. 3:17-cv-2321, 2019 WL 415254, at 4 (N.D. Ohio Feb.
1, 2019)). Defendants argue that the Historic Preservation Code is not arbitrary and does not
require Plaintiffs to obtain a permit before performing minor landscaping or gardening, clarifying
that a permit is only required if a substantial change to the property or landscaping is made. (ECF
No. 15 at 5). Defendants add that an examination of the photographs of Plaintiffs’ yard before and
after his “improvements” demonstrates that the alterations he has made “cannot be characterized
as minor.” Id.
While the Ohio Constitution does protect substantive property rights as “inviolate,” this
right is nonetheless “subservient to the public welfare.” Ohio Const. art. 1, § 19; see Jaylin, 107
Ohio St. 3d at 341. The Supreme Court of Ohio has stated repeatedly that zoning ordinances
enjoy a presumption of constitutionality. See Goldberg Cos., Inc. v. Richmond Hts. City Council,
81 Ohio St.3d 207, 209 (Oh. 1998). To assess the constitutionality of a zoning ordinance that
interferes with a property owner’s use of property, Ohio courts place the burden on the plaintiff
to prove that the ordinance was “clearly arbitrary and unreasonable, having no substantial

relation to the public health, safety, morals, or general welfare.” Id. at 210 (quoting Euclid, 272
U.S. at 395).
In a constitutional analysis of an ordinance at issue, the “object of scrutiny is the
legislative action” not the “the property owner's proposed use.” Jaylin Invs., Inc., 107 Ohio St.
3d at 339. The focus of the constitutional analysis is the “ legislative judgment underlying the
enactment, as it is applied to the particular property, not the municipality's failure to approve
what the owner suggests may be a better use of the property.” Id. Unless a plaintiff meets his or
her burden of showing that the legislative action taken was “arbitrary and unreasonable … and
the decision has no substantial relation to the public health, safety, morals, or general welfare,”

“[c]ourts should not interfere with zoning decisions.” Id. at 341; see also Arendas v. Bd. of Trs.,
2008-Ohio-6599 *P9 (Ohio Ct. App. 2008), Winer v. Clay Twp., 208-Ohio-8765 *P21 (Ohio Ct.
App. 2017).
Plaintiffs do not contest that the City is trying to meet a substantial interest in preserving
the historical character of its districts, but rather they argue that Historic Preservation Code’s
Landscaping Mandate fails “to substantially advance” the stated goal of preserving the area’s
historic character.” (ECF No. 3 at 28). More specifically, Plaintiffs argue that the Landscaping
Mandate is: (1) over-inclusive because it requires approval of every exterior alteration of one’s
home; (2) under-inclusive because it treats homeowners disparately if their property is exempt as
a result of “grandfathering” or due to other exemptions; and (3) finally, the ordinance requires
“complete and total conformity and homogeneity,” which erases “individual efforts, preferences,
choices, and privacies.” (Id. at 30).
The express terms of the ordinance contradict Plaintiffs’ claims that the Landscaping
Mandate requires approval of every exterior alteration of one’s home. As this Court has already

determined above in Section III. A. 2. a., the terms of the ordinance make clear that a permit is
only required before a homeowner makes “a significant exterior improvement” to the property,
including lanscaping. Columbus City Code § 3116.018. Additionally, the ordinance neither
explicitly nor implicitly requires “complete and total conformity” since the standards for
alteration of architectural features require property owners and the Commission to consider,
among other factors, that:
(2) The distinguishing characteristics of the property shall not be destroyed. The removal
or alteration of any historic material or distinctive architectural feature shall be avoided
whenever possible.
(3) Each property shall be recognized as a product of its own time. Alterations that have
no historical basis and which seek to create an earlier appearance shall be discouraged.
….
(5) Distinctive stylistic features and examples of craftsmanship that characterize a
property shall be treated with sensitivity.
Columbus City Code § 3116.018.
Plaintiffs’ claim that the ordinance treats similarly situated homeowners differently is
also without merit. Plaintiffs point to exceptions within the ordinance for homeowners whose
properties include non-conforming features built prior to the enactment of the Historic
Preservation Code or who otherwise prove their entitlement to an exemption. The Supreme Court
of Ohio, however, has recognized a distinction between zoning laws that target property owners
seeking to develop their property versus property owners seeking to “maintain a legal
nonconforming use.” State ex rel. Sunset Estate Properties, L.L.C. v. Lodi, 30 N.E.3d 934, 938,
142 Ohio St.3d 351, 355, 2015 -Ohio- 790, ¶ 14 (Oh. 2015) (finding unconstitutional a zoning
ordinance which deprived mobile homeowners of an existing use of their property by imputing
their abandonment after they had discontinued use of the property for six months or more). Here,
Plaintiffs do not contest that they purchased their home after the enactment of the Historic
Preservation Code and with full knowledge that the home was located in and subject to the

zoning regulations applicable to historic homes. Plaintiffs also have not met their burden of
proving disparate treatment of similarly situated homeowners, since they failed to point to a
homeowner who has received a permit to landscape their property in the same manner after the
enactment of the contested ordinance, without making changes to their proposed landscaping to
meet the suggestions of the Historic Resources Commission.
Ultimately, Plaintiffs have also failed to meet their burden of proving that the provisions
of the Historic Preservation Code at issue in this case have no “substantial relation” to the City’s
stated interest in preserving the historical character of its districts. The stated purpose of the
Historic Resources Commission is to:

Identify structures, groups, districts and sites of historic and architectural significance and
to provide a method of regulation through design review to:
(A) Promote the importance of historic preservation throughout the city;
(B) Identify and list the diverse historic resources of the city;
(C) Preserve, stabilize and improve neighborhoods, business districts and property for the
enjoyment of all the people of the city;
(D) Foster civic pride in the beauty and accomplishments of the past;
(E) Strengthen the city's economy through the creation of new jobs;
(F) Protect the unique historical and architectural character of listed properties; and
(G) Increase the city's tax base through reinvestment in older buildings.
Columbus City Code § 3117.005. While the HRC’s guidelines do focus on aesthetic
compatibility with existing structures and neighboring properties as opposed to historic accuracy,
to pass constitutional muster, the City is not required to choose the best or most effective means
of achieving its stated interest. The city’s regulation must only bear a substantial relationship to
the city’s stated goals, and the Supreme Court of Ohio has already expressly approved of historic
preservation schemes that focus primarily on aesthetics. See Village of Hudson v. Albrecht, Inc.,
458 N.E.2d 852, 856, 9 Ohio St.3d 69, 72 (Oh. 1984) (finding constitutionally valid village
historic preservation ordinance which focused on aesthetics, noting there is “a governmental
interest in maintaining the aesthetics of the community.”). Furthermore, it is not this Court’s

place to “determine the character and degree of regulation required” since “the local legislative
body is familiar with local conditions and is therefore better able than the courts” to make a
determination as to the best manner to achieve its legislative aims. Lodi, 142 Ohio St.3d 351 at
353 ¶ 8 (Oh. 2015). Accordingly, this Court must deny Plaintiffs’ motion for permanent
injunctive relief since Ohio law and the Ohio constitution make clear that the City of Columbus’
Historic Preservation Code does not violate Plaintiffs’ substantive constitutional rights.
B. Other Factors
Courts considering whether to grant a permanent injunction analyze whether a plaintiff:
(1) suffered a constitutional violation; (2) that will constitute a continuing irreparable injury; (3)

for which there is no adequate remedy at law; and (4) balance the public interest and the balance
of hardships. See e.g., Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)
(citing McPherson v. Michigan High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459 (6th Cir.1997)
(en banc)). Whether a plaintiff has suffered a constitutional violation, however, is a threshold
inquiry since the violation of a plaintiff’s constitutional rights is sufficient to demonstrate
irreparable harm. See Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566, 578 (6th
Cir. 2002); Planned Parenthood Southwest Ohio Region v. Hodges, 138 F.Supp.3d 948, 960
(S.D. Ohio 2015) (“[W]hen a constitutional right is being threatened or impaired, a finding of
irreparable harm is mandated.”). Accordingly, because Plaintiffs have failed to show that they
have suffered a constitutional violation, this Court need not consider the remaining factors. See
e.g., Jolivette v. Husted, 886 F. Supp. 2d 820, 837 (S.D. Ohio), aff'd, 694 F.3d 760 (6th Cir.
2012).
IV. CONCLUSION
For these reasons stated above, this Court DENIES Plaintiffs’ motion for injunctive and
declaratory relief. (ECF No. 3).

IT IS SO ORDERED.
way

ALGENO . MARBEEY—
CHIEF UNITED STATES DISTRICT JUDGE
DATE: July 7, 2020

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10375868. Public record. Not legal advice.