Court of Appeals Rules in Favor of Cleveland and other Cities (Shaker Heights joined lawsuit to protect City's right to regulate sale and possession of firearms.)

On March 24, 2009, the City of Shaker Heights joined the cities of Columbus, Akron, Dayton, Kettering, Parma, and Dublin, the Village of New Albany, and four non-profit groups (Legal Community Against Violence, Ohio Coalition Against Gun Violence, States United to Prevent Gun Violence and the Violence Policy Center) in the filing of an Amicus Brief in the case City of Cleveland v. State of Ohio before the Cuyahoga County Court of Appeals. The City and the other "friends of the court" supported the City of Cleveland in urging the Court to find that new Section 9.68 of the Ohio Revised Code (ORC) violates the Ohio Constitution.This statute, enacted by the Ohio General Assembly in December 2006, purports to preempt Home Rule powers of municipalities in Ohio by limiting the right of cities to regulate firearm possession and sale.The City was represented pro bono by the law firm Bingham McCutchen LLP of East Palo Alto, California.

On November 12, 2009, the Eighth District Court of Appeals for Cuyahoga County ruled (in Case CV 618492) to overturn the decision of the lower court, in favor of the Plaintiff-Appellant City of Cleveland (and its supporters like Shaker Heights). The Court decided that Section 9.68 ORC is unconstitutional, since it violates the Home Rule Amendment of the Ohio Constitution, and it is, therefore, unenforceable. It is possible this decision will be appealed to the Ohio Supreme Court.

Council amends Chapter 705 on the regulation of domestic animals, particularly dogs (Ord. 08-102, enacted November 24, 2008, effective December 24, 2008).

Council enacts new Chapter 143 on deposit and investment of City funds (Ord. 08-94, enacted October 27, 2008, effective November 26, 2008).

Council amends Point of Sale ordinances, Sections 1415.04 and .05, and 1417.04, .05 and .06 (Ord. 08-96, enacted October 27, 2008, effective immediately).

Council amends vacant property ordinance, Section 107.07 (Ord. 08-97, enacted October 27, 2008, effective November 26, 2008).

Council amends nuisance abatement ordinances, Chapter 107 (Ord. 08-3, enacted April 28, 2008).

Council enacts new Section 141.24 of the Codified Ordinances to authorize acquisition of properties that cost $25,000 or less (Ord. 08-36, enacted April 28, 2008).

Council adopts Resolution reaffirming and expanding the City’s Equal Employment Opportunity Policy (Res. 08-15, adopted February 25, 2008).

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Council amends Chapter 705 on the regulation of domestic animals, particularly dogs (Ord. 08-102, enacted November 24, 2008, effective December 24, 2008).

The amendments to the City’s animal ordinances incorporate provisions of the Ohio Revised Code regulating dogs so that the City’s laws are at least as protective of public health and safety as is State law. The City’s Ordinance now also better protects the residents of the City from dangerous and vicious dogs, provides the City improved and clarified authority to regulate domestic animals, and allows the City to recover its actual costs of seizing and impounding animals. The City’s regulations of dogs are now as tough as or tougher than State law, and are consistent with recent court decisions on local ordinances regulating dogs.

Some of the specific changes are as follows:

1.  The Ordinance incorporates the more detailed language from State law for “dangerous” dogs; references the right to appeal the finding that a dog is dangerous or vicious; and says it is prima facie evidence a dog is vicious if it is of a breed that State law declares makes it prima facie vicious. State law currently says that a dog that “belongs to a breed that is commonly known as a pit bull dog” is prima facie vicious.

2. The City’s ordinance now requires dogs to be licensed just like State law. A dog without a license issued by the County may be impounded.

3. The Ordinance requires that a dog be confined to its own property by a leash, fence, electric fence, enclosure or supervision.

4. The Ordinance now specifies what type of sign is required for those with dangerous or vicious dogs.

5. The Ordinance requires dangerous and vicious dogs to be muzzled off of the owner’s property, as required by State law.

6. The Ordinance requires that if a dog that has been declared vicious is outside, it must be kept in a locked pen or enclosure with a top, not just on a leash. Also, insurance for a vicious dog in the minimum amount of $100,000 is now required.

Council enacts new Chapter 143 on deposit and investment of City funds (Ord. 08-94, enacted October 27, 2008, effective November 26, 2008).

City Council enacted a new code for the regulation of the money deposits and investments of City funds by the Finance Director (Sections 143.01 through 143.12). Article VI, Section 5 of the Charter of the City of Shaker Heights authorizes the City Council, by ordinance, to provide for the custody of all funds of the City and for designation of a bank or banks as depositories. Article VI, Section 5 of the Charter of the City of Shaker Heights authorizes the Director of Finance to invest moneys of the City in certain securities. Chapter 143 of the Codified Ordinances providing authority for the deposit and investment of City funds was enacted in 1937 and 1939, with one update in 1993.

The new Chapter 143 regulates the deposit and investment of City funds by the Finance Director. The Charter requires that the city’s investments be very conservative. The Director of Finance may invest moneys of the City in the following securities: (1) Bonds or notes issued by the City; (2) Bonds, notes, certificates of indebtedness, treasury bills or other securities issued by or guaranteed by the U.S., or for which the faith of the U.S. is pledged for the payment of principal and interest; (3) Bonds or notes issued by the State of Ohio, provided that they have a rating from Standard and Poors or Moody's as to bonds of one of the two highest rating categories, and as to notes, the highest rating category assigned.

Council amends Point of Sale ordinances, Sections 1415.04 and .05, and 1417.04, .05 and .06 (Ord. 08-96, enacted October 27, 2008, effective immediately).

City Council amended Housing Code Sections 1415.04, 1415.05, 1417.04, and 1417.05, and repealed Section 1417.06 of the Codified Ordinances concerning point of sale inspections and escrow, in order to (a) increase fees, (b) expand the exemption of certain qualifying property transfers involving purchase rehab loans from escrow requirements, (c) hold buyers and sellers criminally liable for non-compliance with the POS escrow requirements, and (d) treat condominium sales the same as other residential sales transactions.

The current fees for point of sale inspections and escrow in Sections 1415.04, 1417.05 and 1417.06 were established in 2005, 1980, and 1993 respectively, and are no longer adequate to cover a fair portion of the City’s expenses.

Section 1415.05 currently includes an exemption from escrow requirements for transactions involving the FHA 203(K) purchase rehabilitation loan program, and today an increasing number of transactions involve similar purchase rehabilitation loan products that essentially take the place of the City-required escrow account to ensure that sufficient funds to correct point-of-sale violations are available to the purchaser or transferee.

Sections 1417.04, 1417.05 and 1417.06 concerning point-of-sale inspections and fees for property transactions involving the sale of condominiums by private owners, rather than developers creating a condominium in an existing building, are duplicative of the point-of-sale laws for other residential property transactions and confusing to administer.

Council amends vacant property ordinance, Section 107.07 (Ord. 08-97, enacted October 27, 2008, effective November 26, 2008).

Section 107.07 of the Codified Ordinances was amended to allow the City to better protect vacant and abandoned properties from trespassers and persons who may damage the properties. Council first enacted the vacant and abandoned structure ordinance on May 23, 2005. The amendment only applies to vacant and abandoned properties for which the owners have failed to comply with the existing vacant property ordinance, or properties for which the City cannot locate an owner after due diligence. Also, the amendments do not apply to any person who has a legitimate reason to be on or in a vacant property, such as a realtor hired by an owner or agent, the owner or agent, or a lessee. The amendments do not in any way change the City’s burden of proof in a criminal prosecution.

The vacant and abandoned property ordinance defines a “vacant structure” as a structure that has not been occupied for a period of 6 consecutive months or more, except if the structure is only seasonally not occupied for less than 12 months. A structure is considered “vacant” even if it is being maintained on the exterior, and even if the owner of the property is actively attempting to sell or rent the property.

An “abandoned” structure is one that is not occupied for any period of time during which the City has not been able to communicate with or locate an owner or party with the legal authority to be in control of the property, and after the City has made reasonable attempts to communicate with or locate the owner or a party in control.

Under the ordinance, a vacant or abandoned structure is considered a nuisance, if the owner, agent, lessee or party in control of the property fails to take all actions required in the law: (a) the exterior must be maintained, (b) the interior must be maintained in a safe, secure and preserved manner to prevent any threat (i) to health or safety, (ii) to threat of fire or health violation, or (iii) to structural or historical integrity, (c) the structure must be winterized to prevent freezing of pipes, (d) all points of entry must be kept locked and secure, and (e) sufficient property and liability insurance must be maintained covering the property up to the fair market value.

To implement the law, the Housing Inspection Department sends out notices to property owners of all vacant properties that come to the attention of the City. The City has found that one obstacle to preventing and prosecuting criminal activity at vacant properties, including use of the interior for criminal acts, theft, vandalism and other crimes and damage causing actions, is that the Police must have a complaining party to state that the person on the property did not have the permission of the owner to be there. With vacant properties that is often difficult to obtain. The amendments declare that nuisance vacant properties are in the custody of the City solely for the purpose of the City taking action to protect the property in the absence of the owner. The goal is to have the City itself become the complaining witness to state that the party found at the property did not have permission to be there. Properties may be posted to alert trespassers.

It is not the intent of this amendment to confer any new or different authority or duty on the City as to the condition, safety or security of any private property other than the specific authority, pursuant to the City’s police powers, which is conferred expressly in the amendment to deny consent to and file criminal complaints against trespassers and other persons entering a vacant or abandoned property without authority to do so.

Council amends nuisance abatement ordinances (Ord. 08-3, enacted April 28, 2008):

Sections 107.03 and 107.05 of the Codified Ordinances concerning the assessment of properties for the cost of nuisance abatement have been amended to streamline the process of assessment and to make it more likely that the assessment will be valid against the property.

Section 107.03 authorizes the City to declare certain nuisances and order their abatement. Section 107.05 authorizes the City to assess properties on which the City performs nuisance abatement.

The changes to the ordinances do the following:

1. Clarify that the City must provide a property owner with an estimate of the costs of planned nuisance abatement prior to the abatement, and a statement of the final cost as soon as the cost can be ascertained.
2. Allows the City to assess the property at any time after the City incurs the costs of preparing to abate and/or abating the nuisance, rather than having to bill the final cost first and waiting 30 days for the owner to pay. 
3. Clarifies that the City may bill and assess the City’s costs incurred by the City in preparing to abate and in abating the nuisance. Thus, the City has the authority to collect its costs incurred in preparing to abate a nuisance even if the City ultimately does not abate the nuisance because the owner finally takes action to abate the nuisance themselves.

These changes do not affect the rights of property owners to appeal nuisance abatement orders or to do the work themselves.

This enhanced procedure will better ensure that a property is not transferred prior to the filing of the lien, which better assures future payment of the costs incurred by the City.

Council enacts new Section 141.24 of the Codified Ordinances to authorize acquisition of properties that cost $25,000 or less (Ord. 08-36, enacted April 28, 2008):

The Charter of the City in Article VI, Section 7, and Section 141.03 of the Codified Ordinances, require that Council approve the acquisition of real estate when the purchase price exceeds the amount set forth in the Codified Ordinances, which is established as an amount exceeding $25,000 in Section 141.03. However, Council has traditionally approved all acquisitions of real property including donations and purchases of any value or price.

Due to the current real estate market, the City is finding that property is becoming available for donation or purchase through various means, including private offers, foreclosure sales, short sales, deeds in lieu of foreclosure, HUD sales, etc. Many of these properties are blighted, vacant and/or abandoned. By Council providing advanced authorization for acquisitions of real property costing up to $25,000, this process will be expedited and become more efficient, reducing the administrative cost in time and resources for the City and making more strategic acquisitions possible.

New Section 141.24 C.O. authorizes the Mayor to acquire real property in the City by donation or purchase, as long as the purchase price, including all costs and expenses of acquisition, does not exceed the amount established in Section 141.03 as the amount above which Council must approve acquisitions of real estate. That amount is currently set at $25,000 in Section 141.03.

Section 141.24 also requires the Mayor to report any acquisition of real property to Council in writing within sixty days after the recording of any deed completing the acquisition of a property.

Council adopts Resolution reaffirming and expanding the City’s Equal Employment Opportunity Policy (Res. 08-15, adopted February 25, 2008):

The City has long observed a principle of recruiting, hiring, training, and promoting City employees without regard to race, color, religion, sex, national origin, age, or handicap, except where such factors would be bona fide obstacles to expected job performance.

Council has reaffirmed and expanded the City’s longstanding Equal Employment Opportunity Policy with the addition of protection from discrimination based on ancestry, sexual orientation, and gender identity.

The City will comply with all legal requirements prohibiting discrimination against any individual with respect to his or her employment compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, national origin, age, ancestry, or disability and also will not discriminate against any individual in employment compensation, terms, conditions, or privileges of employment on the basis of sexual orientation or gender identity.

Artificial barriers or personal attitudes and customs shall not be permitted to affect matters relating to the City’s employment practices.

The City pledges itself to ensure that all activities relative to recruitment, hiring and promotion are undertaken to affect the principle of Equal Employment Opportunity. Only bona fide occupational qualifications should be considered when administering personnel matters. Further, all matters related to compensation, benefits, transfers, layoffs, recall from layoffs, and training will be free from any and all discriminatory practices.