Appeals court says Kent can enforce occupancy rules, reversing February decision

The Eleventh District appellate court has struck down a Portage County Common Pleas Court ruling that Kent’s zoning code is unconstitutional.

At issue was the city’s 2022 denial of a rental license for landlord Reed Havel’s property at 248 Columbus St. in Kent. Havel wished to use the six-bedroom property as his mother had: to house up to four unrelated individuals.

Kent’s zoning code limits the occupancy of single family dwellings in R-3 high-density zoning districts to no more than two unrelated people. The city’s Community Development Department  rejected Havel’s request, saying “he did not provide evidence to support the assertion that continuous nonconforming use existed and predated zoning ordinance.” 

Havel appealed, and at a Nov. 21, 2022, Board of Zoning Appeals hearing alleged that the city’s zoning restriction, at least as applied to his property, was unconstitutional. The BZA denied Havel’s appeal, basing its decision on the same reasoning the city development department had originally set forth.

Havel took the matter to Portage County Common Pleas Court on July 11, 2023, where he stated that he did not need a nonconforming use certificate at all and that the Community Development Department had misapplied the zoning code. He argued that using the property as a rooming house was in compliance with Kent’s zoning code.

He also argued that “the single family zoning restriction prohibiting more than two unrelated individuals from occupying the property was unconstitutional.”

In her Jan. 30, 2024, ruling Portage County Common Pleas Judge Laurie Pittman backed Havel, noting that the city of Kent “seemed to disregard” its own zoning code, which defines a dwelling unit or dwelling as “intended for use by ‘a single family, a household unit, or three or more unrelated individuals.’”

Pittman took two days to deny Kent’s Feb. 13, 2024, motion to reconsider.

Kent took the next step, filing an appellate court lawsuit stating that Pittman should not have ruled that the record did not contain “competent, credible and substantial evidence” to support Kent’s denial of Havel’s nonconforming use application.

Through Rootstown attorney Chad Murdock, Havel also argued that the BZA’s denial of his application was unconstitutional.

The appellate court ruled on Sept. 16 that Havel’s use of the property is in violation of Kent’s zoning ordinance and that he would need a nonconforming use certificate. The appellate court also described Havel’s argument — that the city should not restrict the number or relationships of people occupying any single family dwelling — as a “fatal flaw.”

“Accordingly, Havel’s argument regarding the constitutionality of the restriction would become moot,” the appellate court’s ruling stated.

The appellate court ruled that since the two unrelated individuals restriction does apply to Havel’s property, the trial court was wrong to rule that the BZA’s denial of a nonconforming use certificate “was unsupported by credible, competent evidence.”

Havel had based his assertion of unconstitutionality on a 2019 court case pitting a landlord against the city of Bowling Green, which also set restrictions on how many unrelated people could occupy a single family home.

However, the appellate court ruled that in Bowling Green, the purpose of restrictions in certain zoning districts was to control density. Kent’s code, the court determined, is meant to limit and allocate locations for specific property uses.

“The restriction is less concerned with the relationships of individual occupants of single family residences than the use of the property itself as a single family residence,” the appellate court ruled, using italics.

The appellate court also based its ruling that zoning restrictions limiting unrelated people living in single family dwellings are constitutional on several legal precedents.

“Havel is free to rent to more than two unrelated individuals in one of the alternative permitted districts within the City of Kent,” the court ruled.

The appellate court reversed Pittman’s ruling and remanded the matter back to Portage County Common Pleas Court “for a proceeding consistent with this Court’s opinion.”

On Sept. 25, Murdock filed paperwork asking the appellate court to reconsider. Murdock wrote that the court’s interpretation of Kent zoning code verbiage “is an obvious error and renders the Opinion unsupportable under the law.”

The code, he wrote, “does not apply to single family dwellings.” Where zoning code language must be interpreted, as the court found Kent’s to be, “zoning code ambiguities that restrict land use must be construed in favor of the landowner,” he wrote.

Murdock denied the court’s claim that Havel was challenging the constitutionality of the zoning code as applied to his property. He wrote that Havel has no issue with the zoning code, but if the code is interpreted to restrict unrelated individuals, he does take issue with that classification under equal protection and due process.

Governments cannot make laws or rules that treat groups of people differently “based on irrelevant or suspect criteria,” and “classifications must be rationally related to a legitimate governmental interest,” he stated.

Also on Sept. 25, attorney Andrew Mayle filed an amicus brief with the appellate court on behalf of his clients, New Era Rentals and 537 Rockwell Street. Both are rentals, and their landlords are awaiting decisions in Portage County Common Pleas Court regarding Kent’s restriction on unrelated individuals living together.

“This case is of major significance to not just property owners, but also people who do not live in traditional families, people of limited means who pool their resources, and people who have nontraditional living arrangements,” Mayle wrote.

Tearing the appellate court’s ruling apart, Mayle concluded that its decision “establishes a dangerous precedent in the context of zoning jurisprudence, which historically holds that zoning codes must be construed in favor of the property owner.”

No court date has been set.

Bridget Susel, director of Kent’s Community Development Department, said the city does not comment on pending legal matters.

Havel, a Realtor and real estate investor, referred all questions to Murdock, who did not return The Portager’s request for comment. Pittman likewise did not respond to The Portager.