Springdale v. Tri-Cty. Commons Assocs., L.L.C. , 2017 Ohio 8380 ( 2017 )


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  •          [Cite as Springdale v. Tri-Cty. Commons Assocs., L.L.C., 2017-Ohio-8380.]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    CITY OF SPRINGDALE, OHIO,                         :         APPEAL NO. C-160922
    TRIAL NO. A-1504892
    Plaintiff-Appellee,                       :
    O P I N I O N.
    vs.                                             :
    TRI-COUNTY                                        :
    COMMONS ASSOCIATES, LLC.,
    Defendant-Appellant.                          :
    Civil Appeal From: Hamilton County Court of Common Pleas
    Judgment Appealed From Is: Reversed and Cause Remanded
    Date of Judgment Entry on Appeal: November 1, 2017
    Wood & Lamping, LLP, and Jeffrey D. Forbes for Plaintiff-Appellee,
    Graydon, Head & Ritchey, LLP, Harry J. Finke IV, and Lisa C. Diedrichs for
    Defendant-Appellant.
    OHIO FIRST DISTRICT COURT OF APPEALS
    M ILLER , Judge.
    {¶1}     Today we face the question of whether a fence is a fence if it is on top of
    a building in the city of Springdale. After a careful review of Springdale’s zoning code,
    we conclude that it is not.
    {¶2}     Tri-County Commons Associates, Inc., (“TCCA”) appeals the summary
    judgment entry declaring TCCA to be in violation of the city of Springdale’s zoning
    regulation prohibiting the use of razor wire fences, and ordering TCCA to remove razor
    wire barriers from the rooftops of two of its buildings. Because the razor wire barriers
    do not fit the definition of “fence” in the Springdale zoning code, we reverse.
    Facts
    {¶3}     The facts in this case are undisputed. TCCA owns commercial real estate
    in Springdale, including a building that formerly housed a Walmart store. In response
    to vandals who were climbing onto Walmart’s roof and stripping the rooftop HVAC
    units’ condenser coils, TCCA installed a razor wire barrier on the back and sides of
    Walmart’s roof. It constructed a similar barrier on another building in the same
    general area.
    {¶4}     Springdale’s Building Department notified TCCA that razor wire was
    prohibited by Springdale Zoning Code 158.482(C)(2).          TCCA responded by letter,
    explaining that the razor wire “fence” was necessary to protect its property, and did not
    remove it. Springdale then formally charged TCCA with a zoning code violation, and
    ordered TCCA to remove the razor wire. TCCA refused.
    {¶5}     Thereafter, Springdale filed suit against TCCA. Springdale moved the
    trial court for a declaration that TCCA was in violation of the zoning regulation
    prohibiting razor wire fences, and requested that the court order TCCA to remove the
    razor wire from the rooftops of it buildings. Following cross-motions for summary
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    OHIO FIRST DISTRICT COURT OF APPEALS
    judgment, the trial court entered judgment in favor of Springdale.           This appeal
    followed.
    {¶6}      In one assignment of error, TCCA contends that the trial court erred
    when it denied its motion for summary judgment and granted Springdale’s. We agree.
    Standard of Review
    {¶7}      We review the granting of summary judgment de novo. Grafton v.
    Ohio Edison Co., 
    77 Ohio St. 3d 102
    , 105, 
    671 N.E.2d 241
    (1996). Summary judgment
    is appropriate when (1) there is no genuine issue of material fact, (2) the moving
    party is entitled to judgment as a matter of law, and (3) the evidence, when viewed in
    favor of the nonmoving party, permits only one reasonable conclusion and that
    conclusion is adverse to the nonmoving party. Civ.R. 56(C); Grafton; State ex rel.
    Howard v. Ferreri, 
    70 Ohio St. 3d 587
    , 589, 
    639 N.E.2d 1189
    (1994). Because the
    facts in this case are not in dispute, we focus on the second prong of this test.
    The Zoning Code does not Prohibit the Razor Wire Barriers
    {¶8}      Zoning regulations are in derogation of the common law and deprive a
    land owner of certain uses of his land to which he would otherwise be entitled.
    Saunders v. Clark Cty. Zoning Dept., 
    66 Ohio St. 2d 259
    , 261, 
    421 N.E.2d 152
    (1981);
    Greenacres Found. v. Bd. of Bldg. Appeals, 1st Dist. Hamilton No. C-120131, 2012-
    Ohio-4784, ¶ 10. We therefore strictly construe such regulations in favor of the
    property owner, and their scope cannot be enlarged to include limitations not clearly
    set forth. 
    Id. {¶9} In
    pertinent part, Springdale Zoning Code 158.482(C)(2), entitled
    “FENCES, WALLS AND HEDGES,” provides that “fences * * * are permitted in all
    districts, subject to the following conditions: * * * (C) * * * Razor wire shall be
    prohibited.” “Fence” is defined as “a man-made yard structure which forms or which
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    OHIO FIRST DISTRICT COURT OF APPEALS
    has the intended purpose to form a barrier to light, sound, wind, snow, animals,
    vehicles, or pedestrians.” Springfield Zoning Code 153.014. The definition of “yard” is
    “[t]hat portion of the open area on a lot extending between a building and the nearest
    lot line.” Springfield Zoning Code 153.014.
    {¶10} Here, it is undisputed that TCCA installed the razor wire barriers on the
    top of buildings it owned. Under the plain language of Springdale’s zoning code, razor
    wire may not be used as a “fence.” A “fence” is specifically defined as a “yard structure,”
    and “yard” is defined in the zoning code as “open area on a lot extending between a
    building and the nearest lot line.” So, in the city of Springdale, only razor wire fences
    that are yard structures are prohibited. The code does not prohibit razor wire on
    rooftops.
    {¶11} Springdale argues that because TCCA referred to the razor wire barrier
    as a “fence” in its letter to the Springdale Building Department, TCCA has admitted that
    the razor wire barrier is a “fence.” But TCCA’s colloquial use of “fence” is irrelevant.
    The definition of “fence” set forth in the zoning code—not a lay person’s choice of words
    in a letter—controls. See Montgomery Cty. Bd. of Commrs. v. Pub. Util. Comm., 
    28 Ohio St. 3d 171
    , 175, 
    503 N.E.2d 167
    (1986), citing Ohio Civ. Rights Comm. v. Parklawn
    Manor, 
    41 Ohio St. 2d 47
    , 50, 
    322 N.E.2d 642
    (1975) (holding that “the General
    Assembly’s own construction of its language, as provided by definitions, controls in the
    application of a statute.”).
    {¶12} Springdale next contends that Springdale Zoning Code 153.012(C)
    applies to prohibit the use of the razor wire barriers on the rooftops of TCCA’s
    buildings. That section states that “in the interpretation of this code, if a use within
    this code is not specifically permitted, it shall be prohibited.” The zoning code
    defines “use” as “[a]ny purpose for which buildings, other structures or land may be
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    OHIO FIRST DISTRICT COURT OF APPEALS
    arranged, designed, intended, maintained, or occupied; or any activity conducted in
    a building * * * .” Springdale Zoning Code 153.041. A razor wire barrier is not a
    “use.” The “use” of the buildings is commercial, regardless of the existence of the
    razor wire. This argument is therefore off-point.
    Conclusion
    {¶13} We sustain TCCA’s sole assignment of error.               The trial court’s
    judgment is reversed, and this cause is remanded with instructions to the trial court
    to enter judgment in favor of TCCA.
    Judgment reversed and cause remanded.
    Z AYAS , P.J., and D ETERS , J., concur.
    Please note:
    The court has recorded its own entry on the date of the release of this opinion.
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Document Info

Docket Number: C-160922

Citation Numbers: 2017 Ohio 8380

Judges: Miller

Filed Date: 11/1/2017

Precedential Status: Precedential

Modified Date: 11/1/2017