City of Columbus v Bahgat

Ohio Court of Appeals, 10th Appellate Dist, 2011 Ohio 3315, June 30, 2011: Requirement that replacement windows in historic district “match the original windows, like-for-like” would not confuse a person of ordinary intelligence and therefore is not unconstitutionally vague, does not constitute an unconstitutional exercise of the City’s police powers.

Defendant Bahgat replaced divided light wood frame windows with glass block windows after a burglary at his building in a historic district. After the replacement, Bahgat sought a certificate of appropriateness pursuant to the Columbus City Code. The Historical Commission, intending to order the replacement of what existed before the burglary, issued a certificate of appropriateness to, “Remove divided light wood frame window from all basement window openings. Install new divided light wood frame windows in all basement window openings to match the original windows, like-for-like. Window to match the original in material, dimension, trim, profile, and location in the window opening.” A year later, the glass block windows were still there, and the City sued for enforcement of the certificate.

Among other defenses, Bahgat claimed the requirements of the certificate were unconstitutionally vague. The Court disagreed, citing the plain language and context, as noted above.

Bahgat also argued that the attempted enforcement of the certificate constitutes an unconstitutional exercise of the City’s police powers. His argument, as reported by the Court, focused specifically on how the historic district requirements should be applied to the glass block windows in the area known at German Village Historic District:

“Defendants … argue that glass-block windows meet the legitimate interest underlying the historic preservation code, so the Commission cannot prohibit their installation. Defendants point out that glass-block windows originated in Germany around 1907. Due to this historical pedigree, defendants claim that glass-block windows would contribute to the preservation and protection of the unique character of the German Village historic district. As the glass-block windows would serve the purpose behind the historic preservation code, defendants assert that the Commission acted unconstitutionally when it refused to approve their installation.”

The Court rejected this line of reasoning by pointing out that the analysis of police power should focus on whether the legislative judgment underlying the enactment of the historic preservation code advances the City’s interest in preserving the character of German Village, not whether the particular alteration would advance the City’s interest in preserving the character of the historic district.

Lastly, Bahgat argued that the presence of glass block windows at other buildings within the historic district reflected an unconstitutionally arbitrary and capricious application of the code. The Court rejected this reasoning too, saying variations in appearance resulting from exceptions written into in the historic preservation code, such as “unusual and compelling circumstances” and “substantial economic hardship”, did not render those results unconstitutional.

Decision available at http://www.supremecourt.ohio.gov/rod/docs/pdf/10/2011/2011-ohio-3315.pdf.

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