Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas Trial No.
& Lamping, LLP, and Jeffrey D. Forbes for
Graydon, Head & Ritchey, LLP, Harry J. Finke IV, and Lisa
C. Diedrichs for Defendant-Appellant.
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.
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.
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
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.
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 judgment, the trial court entered
judgment in favor of Springdale. This appeal followed.
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.
We review the granting of summary judgment de novo.
Grafton v. Ohio Edison Co., 77 Ohio St3d 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
Zoning Code does not Prohibit the ...