Posted by: Patricia Salkin | November 27, 2019

OH Appeals Court Upholds Conviction of for Violation of Unified Development Ordinance Based on Trucking/ Distribution Business on Defendants Properties

This post was authored by Matthew Loeser, Esq.

In 2018, a complaint was filed charging Denise Lykins with two misdemeanor counts of violating Section 1105.12(c)(1) of the City of Franklin’s unified development ordinance (“UDO”). These charges arose from Lykins conducting an alleged impermissible “trucking/distribution business” on her two properties located on South Dixie Highway and South Main Street in violation of the UDO. In this case, Lykins appealed her conviction in the Franklin Municipal Court for violating the city of Franklin’s unified development ordinance.

On appeal, Lykins first contended that the trial court erred by denying her Crim.R. 29 motion for acquittal because her conviction was not supported by sufficient evidence. Specifically, Lykins claimed that her conviction must be reversed since the UDO did not define what constitutes “distribution” as that term was used in UDO Section 1107.05(b) to describe the permissible uses for property zoned an I-2 general industrial district. While the court acknowledged that the UDO could have been worded more precisely by providing a definition of what constituted “distribution” as that term was used in UDO Section 1107.05(b), Lykins was using the South Dixie Highway property in a way that was clearly prohibited in a R-3 central residential district under UDO Section 1107.02(c). The court determined that men and women of common intelligence would understand that a business where numerous semi-trucks and large tractor trailers were entering and exiting the property on a daily, consistent basis, and then sit parked and unmoved for more than a few days was not a permissible use on either property. Since there was nothing about this portion of the UDO that required subjective interpretation as to what was prohibited by UDO Sections 1107.02(c) and 1107.03(b), nor was there anything in these portions of the UDO that would lead to arbitrary and discriminatory enforcement under UDO Section 1105.12(c)(1), Lykins’ claim that the UDO was unconstitutionally void for vagueness was dismissed.

In her second assignment of error, Lykins claimed that her conviction was against the manifest weight of the evidence since she was the only witness who testified how the two properties were being used. The court found the conviction was not against the manifest weight of the evidence simply because the trier of fact determined the testimony offered by the prosecution was more credible. For this reason, Lykins’ second assignment of error was overruled, and the prior judgment was affirmed.

City of Franklin v. Denise Lykins, 2019 WL 6117572 (OH 11/18/2019)

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