OH Appeals Court Finds Zoning Ordinance was Vague and Did Not Specifically Address the Keeping of Ducks on Property

This post was authored by Brandon Kemp, Touro University Jacob D. Fuchseberg Law Center

The Ohio Court of Appeals, Ninth District, concluded the Village of Seville’s ordinance prohibiting the ownership of ducks was unconstitutionally vague and didn’t provide the defendant with a reasonable opportunity to know that the keeping of ducks at the property was prohibited.

The defendant owned several animals including three dogs and five ducks. The defendant only intended to keep the ducks as pets. She researched the best type of duck to serve as a pet, and cares for her ducks as pets, clothing them in diapers, and sheltering them in her home. After receiving a complaint, the Village issued a notice to the defendant informing her that she was prohibited from owning “poultry” on the Village’s land.  The Village notice informed her that poultry is defined as a domesticated bird raised generally for meat or eggs. However, contrary to the Village notice description, the ordinance makes no mention of the word “duck.” Instead, the ordinance specifically refers to hens and roosters while also attempting to regulate the hygiene and sightliness of coops and the sale of any by-products such as meat and eggs. The Village filed a complaint against the defendant and the trial court found her guilty of violating the ordinance and ordered that the ducks be removed from her property within 30 days. Defendant appealed.

In determining whether an ordinance is vague, “the court must determine whether the enactment [of the ordinance] (1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement.” The statute did not address ducks and only specifically referenced hens and roosters. When a term is not defined by statute, it is accorded its common, ordinary meaning. However, the term “poultry” was not used in the statute. Instead, the Village only used this definition when informing the defendant of her violation. Thus, the court concluded that the specific language in the statute leads a reasonable person to believe that other forms of poultry may be permitted. Further, the court concluded that the definition contained in the Village’s notice was arbitrary by its very own nature because it was specifically created to prevent the defendant from keeping ducks and to require the defendant to remove its ducks from the property. The Village’s ordinance was therefore determined to be vague, and the trial court’s decision was reversed.

State v. Carlson, 2023 WL 6366570 (Ohio App. 2023) (internal quotation marks and citations omitted).