Miller v. Canton

[Cite as Miller v. Canton, 2011-Ohio-6783.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
COLLIN MILLER : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 2011-CA-00093
CITY OF CANTON :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Administrative appeal from the Stark
County Court of Common Pleas, Case No.
2009CV02731

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 27, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DAVID L. HERBERT KEVIN R. L'HOMMEDIEU
KRISTINE W. BEARD THOMAS A. BURNS
4580 Stephen Circle N.W., Ste. 300 Canton Law Department
Canton, OH 44718 218 Cleveland Avenue S.W.
Canton, OH 44702
[Cite as Miller v. Canton, 2011-Ohio-6783.]

Gwin, P.J.

{1} Appellant the City of Canton appeals a judgment of the Court of Common

Pleas, of Stark County, Ohio, which reversed the decision of the Canton City Board of

Zoning Appeals, finding the Zoning Ordinance is ambiguous and that appellee Colin

Miller needs no variance for a fence erected on his property. Appellant assigns a

single error to the trial court:

{2} “I. THE TRIAL COURT ERRED IN FINDING THAT CANTON’S

ORDINANCE PROHIBITING FENCES OR WALLS OVER FOUR FEET WAS

AMBIGUOUS.”

{3} Appellant has owned property located on Cleveland Avenue in Canton,

Stark County, Ohio, for at least a dozen years. The property is zoned B-3. In 1999,

appellee filed an application with the Canton City Zoning Inspector to erect a fence

around the front yard of his property. Appellee wished to erect a fence because of on-

going vandalism, trespassing by passengers waiting at a local bus stop, sitting on his

front porch to wait for the bus, and thefts at the residence. The Zoning Inspector

granted appellee’s application to erect a nine foot high fence. Across the frontage of the

property is a retaining wall which the court found measured one to two feet higher than

the sidewalk in front it. The zoning inspector told appellee the brick wall would be

considered landscaping. Appellee erected an aluminum fence approximately 52 inches

high. The aluminum fence and brick wall together were six feet tall from the sidewalk.

{4} From 1999 to 2007, various parts of the aluminum fence were either

vandalized or stolen. The City of Canton contacted appellee to repair the fence.

Appellee was unable to find repair parts, and decided to replace it. The zoning
Stark County, Case No. 2011-CA-00093 3

inspector originally informed appellee he could replace the fence in accord with the

1999 zoning permit, but later advised him that he had to apply for a new permit.

{5} In 2007, appellee applied for and was granted a permit to install a four foot

white vinyl fence to replace the aluminum fence. The vinyl fence was installed in the

same manner as the previous aluminum fence, and the combined height of the white

vinyl fence and the retaining wall is 4 feet 9 inches in height from the sidewalk level.

{6} Neighboring businesses complained about the fence. In April 2009, the

zoning inspector issued a notice of violation to appellee advising him the fence was

higher than that permitted by the Canton City Zoning Ordinances, which limit fences to 4

feet in height. Appellee was advised to either lower the height of the fence or remove it.

Appellee appealed the zoning inspector’s determination to the Canton Board of Zoning

Appeals. The Canton Board of Zoning Appeals denied appellee’s request to keep his

fence and appellee filed his action in common pleas court.

{7} This is the second time this case has been before us. In the first case, the

trial court determined the 1999 permit controlled the building of the replacement fence.

In Miller v. Canton, Stark App. No. 2010-CA-00008, this court determined that the

Canton City Ordinances required appellee to obtain a new permit for the fence. We

also remanded the matter back to the common pleas court to determine whether the

ordinances are ambiguous regarding the manner in which the height of the fences to be

measured.

{8} Upon remand, the parties supplemented their original briefs, and the trial

court found the ordinance is ambiguous as to how to measure the fence’s height, and

found appellee did not need a variance for the fence.
Stark County, Case No. 2011-CA-00093 4

{9} The subject ordinance states:

{10} “Fences and walls shall be permitted in any required yard or along the

edge of any yard in accordance with the following provisions:

{11} (a) such fence or wall may be placed up to the lot line;

{12} (b) such fence or wall may be 4 feet in height in the front yard, 6 feet in

height in the side yard and 8 feet in height in the rear yard;

{13} (c) such fence or wall in B-3 through I-2 District, inclusive, may be

increased to height of 10 feet with prior written approval of the zoning inspector;

(Ordinance 68-88. Passed 4-4-88.)

{14} (d) no barbed wire or electric fence, with the exception of invisible fence,

shall be allowed in a residential district. (Ordinance 105-96, passed 5-6-96).

{15} Much has been made of the description of the placement of the fence. In

our previous appellate case, we found the facts were not in dispute, and quoted the

transcript from the variance hearing before the Canton Board of Zoning Appeals. The

transcript described the fence as metal with the spindles spaced about 3 inches apart,

installed on top of a small brick wall bordering the front yard of the property. From the

photographs submitted as exhibits, it appears the fence is not mounted directly on top of

the wall, but is in fact, mounted in the ground immediately behind the wall. It is on top of

the wall in the sense it is above the wall.

{16} The standards of review applied by the trial court and the appellate court

in an R.C. Chapter 2506 administrative appeal are different. Henley v. City of

Youngstown Board of Zoning Appeals, 90 Ohio St.3d 142, 147, 200-Ohio-493, 735

N.E.2d 433. The trial court considers the entire record before it to determine whether
Stark County, Case No. 2011-CA-00093 5

the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable,

or unsupported by the preponderance of substantial, reliable, and probative evidence.

Our review of the judgment of the common pleas court is more limited and we only

address questions of law. Id.

{17} The trial court found the ordinance was ambiguous because its language

did not indicate whether to measure the fence from the sidewalk in front of the wall, or to

measure from the ground in which the fence is mounted. The court also questioned

whether the measurement should include the fence posts.

{18} A statute or ordinance is ambiguous when its language is subject to one or

more reasonable interpretations. Family Medicine Foundation, Inc. v. Bright, 96 Ohio

St.3d 183, 2002-Ohio-4034, 772 N.E.2d 1177 at paragraph 8. However, if the meaning

of the statute or ordinance is free from ambiguity and doubt, then a court must apply the

language as written and refrain from further interpretation. Key Service Corp. v. Zaino,

95 Ohio St.3d 11, 2002-Ohio-1488, 764 N.E.2d 1015.

{19} In the case of Banks v. City of Upper Arlington, Franklin App. No.

03AP656, 2004-Ohio-3307, the Court of Appeals for the Tenth District reviewed a

situation where a 6 feet high fence was built on top of an adjoining landowner’s retaining

wall. The ordinance that controlled stated: “[w]here a fence/wall, ornamental feature or

hedge is constructed on a mound, or where the ground under same has been raised to

a higher level than the surrounding surface, the permissible height of the fence/wall,

ornamental feature or hedge shall be reduced by the height of such mound or raised

surface.” Banks, at paragraph 6, quoting Upper Arlington Codified Ordinance 1178.07

(B). The issue in the Banks case was whether the fence had been constructed on a
Stark County, Case No. 2011-CA-00093 6

mound or ground raised to a higher level than the surrounding surface because, as

here, the ground on one side of the fence was higher than on the other side. .

{20} The Court of Appeals noted the primary goal of statutory interpretation is

to give effect to the intent of the enacting body, Banks at paragraph 28. The court found

a statute or ordinance is ambiguous when its language is subject to one or more

reasonable interpretations, but if the meaning of the statute or ordinance is free from

ambiguity and doubt then a court must apply the language as written and refrain from

further interpretation. The court found the ordinance was not ambiguous, and clearly

indicated if a fence stands higher than the surrounding ground on at least one side, then

its height must be reduced by the height of the mound or retaining wall area.

{21} Contrast to the Banks case with Porter v. Green Board of Zoning Appeals,

Summit App. No. 223379, 2007-Ohio-510, wherein the ordinance in question, like the

ordinance before us, did not refer to any landscaping mounds or elevated surfaces and

the issue was whether a landscaping mound is to be included in the height of the fence.

The Ninth District Court of Appeals found the plain meaning of the ordinance does not

adequately advise a resident how to measure the height of the fence.

{22} We do not agree with the Ninth District’s conclusion the ordinance is

ambiguous because it does not state how to measure the height of a fence. Unless a

different intention appears in a statute or ordinance, words must be given their ordinary

and natural meaning. Layman v. Woo, 78 Ohio St.3d 485, 487, 1997-Ohio-195, 678

N.E.2d 1217, citation deleted.

{23} We find because the ordinance in question does not make reference to a

landscaping mound or retaining wall, we must apply the plain meaning of the words.
Stark County, Case No. 2011-CA-00093 7

Had the City wished to include landscaping features, retaining walls, or other surface

irregularity or elevation, it could have done so. In the absence of such language, the

“ordinary and natural” way to measure a fence is to measure from the ground on which

it is mounted to its highest point, which in this case would be the fence posts.

{24} We find the trial court was right for the wrong reason. The court erred in

finding the ordinance was ambiguous, but nevertheless it was correct in concluding

appellee does not need a variance for his fence. The fence, measured from the ground

to the top, does not exceed four feet.

{25} The assignment of error is overruled.

{26} For the foregoing reasons, the judgment of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. PATRICIA A. DELANEY
[Cite as Miller v. Canton, 2011-Ohio-6783.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

COLLIN MILLER :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
CITY OF CANTON :
:
:
Defendant-Appellant : CASE NO. 2011-CA-00093

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of

the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs to appellant.

_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. SHEILA G. FARMER

_________________________________
HON. PATRICIA A. DELANEY