{¶ 1} Appellant, Laraine Porter, appeals from the judgment of the Summit County Court of Common Pleas which affirmed Appellee's, the City of Green Board of Zoning Appeals ("Green BZA"), denial of a variance. We reverse.
{¶ 3} Green Codified Ordinance 1296.02(h)(1)(B) permits fences in residential areas to be placed either in the side or rear yard and to be no more than six feet high. During the installation of the landscaping mound and fence, a Green Zoning Inspeсtor came out to Appellant's home and advised her that the combined height of the mound and fence violated the ordinance and they must be removed. Appellant refused to remove the mound and fence as they were just installed.
{¶ 4} The Zoning Board immediately contacted Appellant and advised her that she either needed to remove the fence or apply for a variance. Two weeks later, Appellant filed the аpplication for a variance. The Green Zoning Division denied Appellant's zoning permit application for the nine foot fence and/or three foot variance on October 3, 2005. At their October 20, 2005 meeting, the Grеen BZA heard Appellant's application for a variance for the additional height. After listening to Appellant, her neighbors, and other witnesses, the Green BZA denied Appellant's request for a variance.
{¶ 5} Appellant timely filed an administrative appeal to the Summit County Court of Common Pleas pursuant to R.C. Chapter 2506. After considering the entire record and the briefs, the trial court affirmed the Green BZA'a decision to deny the three foot fenсe variance.
{¶ 6} Appellant timely appealed, asserting two assignments of error for our review.
{¶ 7} In her first assignment of error, Appellant argues that the trial court erred in defining and applying the terms "fence" and "building" pursuant tо the Green Zoning Ordinance, thus misconstruing the ordinance and the need for a variance. Specifically, Appellant asserts that "fence" and "building" are distinct terms, thus a "fence" is not subject to the definition of "building height" and no variаnce was required. Appellant argues that the plain meaning of the ordinances do not adequately advise a resident as to how to measure the height of a fence and whether a landscaping mound is to be includеd in the height of the fence. We agree.
{¶ 8} R.C. Chapter 2506 governs appeals of decisions by agencies of political subdivisions, such as township zoning boards. See, e.g.,Earth `N Wood Prods., Inc. v. City of Akron Bd. of Zoning Appeals, 9th Dist. No. 21279,
{¶ 9} The trial court considers the entire record before it and "determines whether the administrative order is unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence."Henley,
{¶ 10} While the Appellant's appeal to this Court is also governed by R.C.
"[R.C.
2506.04 ] grants a more limited power to the court of appeals to review the judgment of the common pleas court only on `questions of law,' which does not include the same extensive power to weigh `the рreponderance of substantial, reliable, and probative evidence,' as is granted to the common pleas court. It is incumbent on the trial court to examine the evidence. Such is not the charge of the aрpellate court. * * * The fact that the court of appeals * * * might have arrived at a different conclusion than the administrative agency is immaterial. Appellate courts must not substitute their judgment for those of an administrativе agency or a trial court absent the approved criteria for doing so." (Citations omitted). Henley,. 90 Ohio St.3d at 147
{¶ 11} Zoning ordinances imposing restrictions on the use of private property are strictly construed in favor of the land owner and their scope cannot be extended to include limitations not prescribed therein.Saunders v. Clark Cty. Zoning Dept. (1981),
{¶ 12} When the language of the ordinance is unambiguous, the courts apply the plain and ordinary meaning of the words. Roxane Laboratories,Inc. v. Tracy (1996),
{¶ 13} The trial court found Green Codified Ordinance 1296.02(h)(1)(B) to be ambiguous as to how to measure the height of the fence and thus engaged in interpreting the definitions of the ordinance. However, the trial court's interpretation of Green Codified Ordinances 1296.02(h)(1)(B) and 1260.06 was unnecessary as the ordinances are unambiguous.
{¶ 14} Green Codified Ordinance 1296.02(h) states in its entirety the following with regards to fences:
"(h) Fences.
"(1) In all districts, fences and walls shall comply with the following:
"A. In a front yard, a fence or wall shall not exceed three feet in height, except that within twenty feet of a public right of way a fence shall not exceed two feet in height.
"B. In a side or rear yard in а residential district, a fence or wall located in the required yard shall not exceed six feet in height. A fence or wall located in any other portion of the side or rear yard shall not exceed eight feet in height."
"C. In a rеquired side or rear yard in a nonresidential district, a fence or wall shall not exceed six feet in height.
"(2) Any fence or wall proposed for a use that requires site plan review and which is not in a front or required rear or side yаrd pursuant to paragraph (h)(1) hereof shall be reviewed and approved as part of a site plan pursuant to Section 1262.07. However, when a fence or wall is proposed at a separate time from any other development for new construction, additions or site renovation, fences or walls may be approved administratively by the Zoning Inspector when the Zoning Inspector determines that the proposal:
"A. Complies with paragraph (h)(1) hereof;
"B. Is consistent with any previously approved plan;
"C. Is cоmpatible with the current site development if there is no approved plan; and
"D. Will have a minimum adverse impact to the surrounding areas.
"If, because of the nature of the proposed fence, the Zoning Inspeсtor does not make such a determination, the request shall be referred to the Planning and Zoning Commission and considered by the Commission according to the site plan procedures set forth in Section 1262.07."
Further, Green Codified Ordinance 1260.06(29) defines a fence as "[a] structure composed of nonliving material, which may be construed for privacy, security, screening or decoration."
{¶ 15} Upon review of the Green Codified Ordinances we note that fences are restricted so as not to exceed three feet, six feet, or eight feet in height, depending upon their location. Other than referring to the maximum height of the fence, no mention is made of any special way of measuring the height of a fence. In such circumstances, the limitation imposed by the plain language of the ordinances is upon the height of the fence itself: how far the top of the fence is from the ground at the base of the fence.
{¶ 16} The trial court attempted to apply the procedure provided for measuring the height of a building in order to establish a requirement for measuring the height of a fence. While an ordinance could no dоubt be written so as to accomplish this, the ordinance in question did not do so. While it is true that fences are included as "structures" and as "accessory uses or structures," the height measuring requirement is expressly made applicаble to buildings. It is to be noted that Green Codified Ordinance 1260.06(11) provides not only that an accessory building must meet the requirements of an accessory structure, but also that it must be a building. Nowhere does the ordinance state that a fence is a building.
{¶ 17} Accordingly, we find the Green Codified Ordinances make no provision requiring the maximum height of a fence to be deemed anything other than the maximum height of the fence itself. Based on the plain meaning of the language in the Green Codified Ordinances, Appellant's six foot fence, placed on top of a three foot landscaping mound, is in compliance with the ordinances and Appellant was not required to request a variance.
{¶ 18} Appellant's first assignment of error is sustained.
{¶ 19} Appellant's second assignment of error alleges that the trial court incorrectly applied the "practical difficulties" standard inDuncan v. Middlefield (1986),
Judgment reversed.
The Court finds that there were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to cаrry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
SLABY, P. J. WHITMORE, J. CONCUR
(Baird, J., retired, of the Ninth District Court of Appeals, sitting by assignment pursuant to, § 6(C), Article IV, Constitution.)