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City of Springdale v. TRI-County Commons Associates, LLC

Court of Appeals of Ohio, First District, Hamilton

November 1, 2017

CITY OF SPRINGDALE, OHIO, Plaintiff-Appellee,
v.
TRI-COUNTY COMMONS ASSOCIATES, LLC, Defendant-Appellant.

         Civil Appeal From: Hamilton County Court of Common Pleas Trial No. A-1504892.

          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.

          OPINION

          Miller, 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 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 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 this test.

         The Zoning Code does not Prohibit the ...


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