This post was authored by Matthew Loescher, Esq.
Andrew Stevens and Melanie Copenhaver completed a major landscaping project in the front yard of their home in Columbus’s Bryden Road Historic District. After receiving notice that their failure to apply for and secure a certificate of appropriateness for the landscaping from the City’s Historic Resources Commission violated the Historic Planning and Preservation Code, they were unsuccessful in obtaining retroactive approval or a favorable outcome in their appeals. Following this, Stevens and Copenhaver sued the City and Timothy J. Noll, a Columbus Code Enforcement Officer, in federal court, challenging the Code as unconstitutionally vague, an impermissible delegation of legislative power, contrary to equal protection under the Ohio Constitution, and imposing excessive fines. The district court denied their claims, and Stevens and Copenhaver appealed.
On appeal, Stevens and Copenhaver first contended that the Preservation Code failed to provide the necessary notice of what landscaping was prohibited and permitted. The Preservation Code at issue requires applications for certificates of appropriateness to the Commission when a property owner in a historic district proposes changes to “[t]he exterior of a property as is designed to be exposed to public view” and any “significant exterior improvement” such as “landscaping; …walkway; fence; mound; wall; … mechanical system or similar improvement”. Here, Stevens and Copenhaver installed brick retaining walls and changed the landscaping through numerous plantings and substitution of dark mulch for all grass in the front yard. These changes were both alterations to the property’s “architectural features” because the retaining walls and landscaping were exterior elements “designed to be exposed to public view”, and “site improvements” as they were significant exterior changes to landscaping and front walls. As such, their argument that the “presence of retaining walls in the yards of approximately 40 other properties in a historic area of over 250 buildings shows the arbitrariness of the Preservation Code’s application” did not meet that burden. Specifically, the court found that Stevens and Copenhaver failed to offer any evidence concerning which of the properties had landscaping grandfathered in by virtue of having retaining walls before Bryden Road became a Historic Preservation District, or clear evidence that their property was substantially similar to those that did receive certificates of appropriateness.
Stevens and Copenhaver next alleged that the Preservation Code’s regulation of landscaping was unconstitutional under the Due Process Clause because it impermissibly delegated authority over certificates of appropriateness to the Commission. The court found that because the Preservation Code provided adequate guidance on assessing applications for certificates of appropriateness, and the appointment process provided a degree of political control, the delegation challenge failed. The court further noted that even if the Preservation Code’s impact on landscaping was driven solely by aesthetic interests rather than historic preservation, Ohio cases have implied that there is a governmental interest in maintaining the aesthetics of a community such that zoning for aesthetic reasons are a valid exercise of police power. Accordingly, Stevens and Copenhaver failed to meet their burden of showing “beyond fair debate” that the Preservation Code lacked a substantial relation to the promotion of the public welfare.
The court lastly held that Stevens and Copenhaver’s Excessive Fines challenge was not ripe as the City had yet to impose or seek any fine against them under the Preservation Code. Accordingly, the court affirmed the district court’s decisions to deny Stevens and Copenhaver’s claims.
Stevens v City of Columbus, OH, 2022 WL 2966396 (6th Cir. CA 7/27/2022)
LAW OF THE LAND 
Leave a comment