[Cite as Columbus v. Galli, 2013-Ohio-5325.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

City of Columbus,                                :

                Plaintiff-Appellee,              :

v.                                               :                No. 12AP-864
                                                              (M.C. No. 2009 EVH 60290)
Stephen F. Galli,                                :
                                                             (REGULAR CALENDAR)
                Defendant-Appellant,             :

M & M Auto Shop et al.,                          :

                Defendants-Appellees.            :




                                           D E C I S I O N

                                   Rendered on December 5, 2013


                Richard C. Pfeiffer, Jr., City Attorney, and Kristen M.
                Kroflich, for appellee.

                Olsheski Law Co., L.P.A., and Jessica L. Olsheski, for
                appellant.

                       APPEAL from the Franklin County Municipal Court

McCORMAC, J.

        {¶ 1} Defendant-appellant, Stephen F. Galli, appeals from a judgment of the
Franklin County Municipal Court, Environmental Division, granting the motion for
summary judgment filed by plaintiff-appellee, the City of Columbus ("City"), and denying
Galli's motion for summary judgment on the City's complaint for injunctive relief and a
declaration of public nuisance.
I. Facts and Procedural History
        {¶ 2} Galli is the property owner of record and landlord for real property located
at 1440 Ohlen Avenue in Columbus, Ohio. Galli currently rents the property to Ayegbusi
No. 12AP-864                                                                             2


for the operation of his businesses, M & M Auto Shop and M & M Shipping and Travel,
LLC. The property, located in an "M" commercial manufacturing zoning district, contains
a commercial warehouse structure and an adjoining gravel lot. An occupancy permit Galli
obtained in 1978 permits the property's use as a "warehouse & office building." (R. 14,
exhibit D.)
       {¶ 3} On April 30, 2007, Columbus City Code Enforcement Officer Jeffrey Hann
inspected the property, and on May 1, 2007, he issued a Zoning Code Violation Order
("2007 Order") to Galli and his tenant at that time. There is an unresolved dispute as to
whether the tenant was then Ayegbusi or M & M Auto Shop. The 2007 Order alleged that
Galli and his tenant violated Columbus City Code ("C.C.C.") 3305.01, which prohibits a
change in use of property without a certificate of zoning clearance. Galli appealed the
violations to the Board of Zoning Adjustments ("Board"), but the Board upheld the 2007
Order's findings at a September 25, 2007 hearing. Galli did not seek judicial review of the
Board's decision.
       {¶ 4} On July 29, 2009, the City filed a verified complaint against Galli and
M & M Auto Shop seeking a permanent injunction and a declaration that the property
constituted a public nuisance on the ground that the property "remained in violation of
[C.C.C. 3305.01]." (R. 1, at 3.) On September 9, 2009, Galli and Ayegbusi (referred to
collectively in the following discussion as "Galli") filed an answer and counterclaim
seeking to enjoin the City from filing any additional claims alleging zoning code
violations. The City did not file an answer to Galli's counterclaim.
       {¶ 5} Galli and the City filed competing motions for summary judgment on
January 21 and February 19, 2010, respectively; Galli responded to the City's motion with
a memorandum contra on March 8, 2010. Pursuant to the parties' agreement for a
decision on the written motions, on August 30, 2012, the municipal court magistrate
rendered a decision finding the City was entitled to an injunction and declaration of
public nuisance. Consequently, the magistrate recommended that the court grant the
City's motion for summary judgment and deny Galli's motion for summary judgment; the
magistrate further recommended that the court grant summary judgment to the City on
Galli's counterclaim for injunctive relief. On September 4, 2012, the trial court approved
and adopted the magistrate's decision as the order of the court, thereby declaring the
No. 12AP-864                                                                              3


property a public nuisance and enjoining Galli from continuing to use the property in the
manner alleged by the City.
II. Assignments of Error
       {¶ 6} Galli timely appeals the trial court's judgment and sets forth two
assignments error for review:
              I. The trial court erred in denying Appellant's Motion for
              Summary Judgment on the issue of whether the Property
              owner and tenant are operating a junkyard or salvage yard
              without proper zoning clearance.

              II. The trial court erred in granting the City's Motion for
              Summary Judgment on all points.

As Galli's assignments of error are interrelated, we address them jointly.
III. Standard of Review - Summary Judgment
       {¶ 7} Under Civ.R. 56, summary judgment is appropriate when: (1) no genuine
issue of material fact remains to be litigated, (2) the moving party is entitled to judgment
as a matter of law, and (3) viewing the evidence most strongly in favor of the nonmoving
party, reasonable minds can come to but one conclusion, that conclusion being adverse to
the nonmoving party. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66
(1978). The party seeking summary judgment bears the initial burden of setting forth the
basis for its motion and identifying those portions of the record which "demonstrate the
absence of a genuine issue of fact on a material element of the nonmoving party's claim."
Dresher v. Burt, 75 Ohio St.3d 280, 292 (1996). If the movant fails to meet this burden,
summary judgment is not appropriate. Id. If the movant does meet this burden, the
nonmoving party must then produce competent evidence showing that there is a genuine
issue for trial; summary judgment will be appropriate only if the nonmovant fails to
establish the existence of a genuine issue of material fact. Id. at 293. We review a trial
court's decision regarding a summary judgment motion de novo, meaning we conduct an
independent review of the record and afford no deference to the trial court's decision.
Cashlink, L.L.C. v. Mosin, Inc., 10th Dist. No. 12AP-395, 2012-Ohio-5906, ¶ 14; Holt v.
State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9.
IV. First and Second Assignments of Error - Injunctive Relief
No. 12AP-864                                                                               4


       {¶ 8} Both Galli's assignments of error challenge the trial court's resolution of the
parties' competing motions for summary judgment. Specifically, Galli argues the trial
court erred in granting the City's motion for summary judgment on its request for a
permanent injunction and a declaration that the property is a public nuisance and in
denying his own motion for summary judgment as to "the specific issue of [his] alleged
use of the Property as a junkyard." (Appellant's brief, at vi.)
       {¶ 9} Although Ohio appellate courts typically apply an abuse of discretion
standard to a trial court's determination on whether to issue injunctive relief, when a
matter "is before [the court] on both a grant of summary judgment and permanent
injunction" courts "proceed on the side of caution and review [the] matter de novo." Ohio
Pyro, Inc. v. Ohio Dept. of Commerce, 12th Dist. No. CA2005-03-009, 2006-Ohio-1002,
¶ 26, rev'd on other grounds, in Ohio Pyro, Inc. v. Ohio Dept. of Commerce, 115 Ohio
St.3d 375, 2007-Ohio-5024, certiorari denied, 552 U.S. 1275.
       {¶ 10} A party seeking a permanent injunction must demonstrate by clear and
convincing evidence that " 'they are entitled to relief under applicable statutory law.' "
McDowell v. Gahanna, 10th Dist. No. 08AP-1041, 2009-Ohio-6768, ¶ 9, quoting Acacia
on the Green Condominium Assoc., Inc. v. Gottlieb, 8th Dist. No. 92145, 2009-Ohio-
4878, ¶ 18, citing Proctor & Gamble Co. v. Stoneham, 140 Ohio App.3d 260, 268 (1st
Dist.2000). Notably, while ordinarily that party also must establish great or irreparable
injury is about to be done for which he has no adequate remedy at law, these equitable
principles do not apply "when a statute grants a specific injunctive remedy to an
individual or to the state." Ackerman v. Tri-City Geriatric & Health Care, Inc., 55 Ohio
St.2d 51, 56 (1978), citing Stephan v. Daniels, 27 Ohio St. 527, 536 (1875). The City
sought a permanent injunction, pursuant to R.C. 713.13, which is one such "special
statute allowing the municipal corporation to obtain an injunction without showing
irreparable harm would be incurred for which there is no adequate remedy at law," as it
permits the City to "institute a suit for injunction to prevent or terminate" any use of land
that is in violation of the zoning code. Columbiana v. J & J Car Wash, Inc., 7th Dist. No.
04 CO 20, 2005-Ohio-1336, ¶ 19; R.C. 713.13. Accordingly, the traditional equitable
principles for granting injunctions do not apply to the City's request for injunctive relief;
No. 12AP-864                                                                                5


nevertheless, the City still must prove that "the statutory conditions exist." Ackerman at
58.
       {¶ 11} In its complaint, the City alleged it is entitled to injunctive relief, pursuant
to R.C. 713.13, because Galli's use of the property is in violation of C.C.C. 3305.01
requirement that a certificate of zoning clearance be obtained before a property's use can
be changed. See also C.C.C. 3303.03 (defining "[c]hange of use" as "any alteration in the
primary use of a lot for zoning purposes which may entail the need for additional
parking or loading facilities"). Furthermore, the City asserted the property constitutes a
public nuisance due to this alleged violation of C.C.C. 3305.01 because the term "[p]ublic
nuisance" encompasses, pursuant to the zoning code, "any structure or real property
which is not in compliance with any building, housing, [or] zoning * * * ordinance of the
Columbus City Code." C.C.C. 3303.16. Therefore, the appropriateness of the grant of
summary judgment to the City turns on whether the record contains sufficient,
uncontroverted evidence to establish that Galli's use of the property violates C.C.C.
3305.01.
       A. City's Motion for Summary Judgment
       {¶ 12} In its motion for summary judgment, the City maintained that summary
judgment in its favor was appropriate because it had demonstrated not only that Galli was
responsible for the "violations of the Columbus City Code * * * § 3305.01" established by
the Board decision upholding the 2007 Order but, also, that the violations continue to
exist since Galli has not "corrected the violations listed in the Order." (R. 13, at 1.)
       {¶ 13} To establish the initial violation, the City produced the Board decision
upholding the 2007 Order pursuant to the Board's finding that, while the property's "legal
approved use is [as] a two-story warehouse and office building," there had been an
unapproved change of use because "[a]uto services, used sales, storing of wrecked,
salvaged, and inoperable vehicles, and storage of junk are actually occurring on the site";
in addition, the board found "[t]here are unimproved surfaces which are pertinent to the
use, which have * * * not received zoning clearance." (R. 13, exhibit K.) The City also
submitted the violation notice for the 2007 Order, which indicated the City sent copies of
the Order to Ayegbusi and M & M Auto Shop at the subject address and Galli at a separate
address on May 1, 2007.
No. 12AP-864                                                                                 6


         {¶ 14} In addition, the City contended "that Defendant has not complied with the
Order enforcing the laws of the City of Columbus" in the time since issuance of the 2007
Order. (R. 13, at 5.) Specifically, the City alleged in its complaint that "[o]n December 10,
2007, Code Officer Hann re-inspected the property and found that the violations listed in
[the 2007 Order] still existed," and again "[o]n April 30, 2009, Code Officer Hann re-
inspected the property and the property remained in violation of the zoning code." (R. 1,
at 3.)    The City supported these allegations with Inspector Hann's signed affidavit
averring that he had personal knowledge of the facts contained in the verified complaint
and that those facts are true. In addition to Inspector Hann's statements, the City
submitted four black and white photocopies of photographs taken on the morning of
May 16, 2008. Although the photocopies provide too little contrast between the ground
and the objects in the photosmaking it so that much of each image appears to be solid
blackthe City alleged the photos show that "Inspector Hann * * * witnessed inoperable
vehicles parked on unimproved surfaces." (R. 13, at 5.) Finally, the City submitted a
Name Registration form Ayegbusi filed with the Secretary of State on October 12, 2004, in
which he gave the nature of M & M Auto Shop's business as "repairing damaged vehicles."
(R. 13, exhibit E.) Based on this evidence, the City contended, it conclusively established
that Galli's "current use" violates C.C.C. 3305.01. (R. 13, at 5.)
         B. Galli's Motion for Summary Judgment and Memorandum Contra
         {¶ 15} Through his own motion for summary judgment and a memorandum
contra the City's motion, Galli challenged the City's evidence that violations continued
after the 2007 Order and presented his own evidence that his "conduct after [April] 2007
was not in violation of the zoning code." (R. 15, at 5.)
         {¶ 16} As to the initial violations, although Galli clearly disagreed with the Board's
decision upholding the 2007 Order, he also acknowledged that his failure to appeal the
Board's holding left him with no grounds to later challenge the 2007 Order. Nevertheless,
he claimed, the 2007 Order was not indicative of the property's current use and, thus, had
limited evidentiary value in the City's present claim for injunctive relief because Galli
"cured" those alleged violations by evicting the old tenant, Glory Shipping and Travel.
(Emphasis sic.) (R. 15, at 2.)
No. 12AP-864                                                                                7


       {¶ 17} In refuting the City's evidence that the violations continued to exist, Galli
noted that Inspector Hann never issued another violation order despite his inspections in
late 2007, 2008, and 2009. Galli also questioned the City's conclusion that Inspector
Hann's observations reveal there are inoperable vehicles on the property, as "[n]o one has
inspected the vehicles on this Property * * * [or] even attempted to verify that these
vehicles are inoperable." (R. 15, at 12.) Consequently, Galli argued, Inspector Hann's
account of his inspections does not establish continuing violations and, instead, amounts
to a mere assertion that he saw a large number of cars parked on the property. As to this
large number of vehicles, Galli asserted that the presence of the vehicles is consistent with
the property's use as a warehouse, since M & M's business is to "obtain[] wholesale
vehicles, make[] minor adjustments and then ship[] them out for resale." (R. 15, at 7.)
       {¶ 18} Moreover, Galli claimed the photocopies of photographs taken by the City in
May 2008, in addition to being "of extremely poor quality," actually support his
argument, because two of the images "appear to be photos of a vehicle in the maneuvering
area at the front of the warehouse" in conformity with "the intended purpose of a
maneuvering area," while the other two images "show vehicles, or bulk inventory, being
warehoused in an outdoor storage area on the Property in accordance with the parameters
of the 1978 occupancy permit." (R. 15, at 6.) Overall, Galli contended, the photographs
"show[] nothing but cars on the lot" and any claims of inoperability are not reliable
because an observer "cannot possibly verify, with the naked eye, that these vehicles are
inoperable." (R. 15, at 12.)
       {¶ 19} In support of his claims that the property is used as a warehouse in
conformity with the 1978 occupancy permit, Galli provided two of his own affidavits, an
affidavit from Ayegbusi, and several photographs of the property from 2008, 2009, and
2010. See Civ.R. 56(E). Galli's January 21, 2010 affidavit asserts the property is "used for
the storage of used vehicles," which are "delivered and stored at the Property and then
shipped out for resale in Africa"; while at the warehouse, "[m]inor repairs are performed
on the vehicles to prepare them for shipment." (R. 11, Jan. 21, 2010 Galli affidavit, at 1-2.)
Galli further attested that the property is "not a used car lot or auto service garage," and
"[a] consumer cannot buy a vehicle at this Property nor can a customer come to this
Property for vehicle repairs." (Jan. 21, 2010 Galli affidavit, at 2.) Finally, Galli stated
No. 12AP-864                                                                                  8


"[t]he vehicles on this Property are not salvage materials or junk vehicles and they are not
used primarily for parts." (Jan. 21, 2010 Galli affidavit, at 2.)
       {¶ 20} In his March 3, 2010 affidavit, Galli reiterates many of his earlier
statements, and adds that Ayegbusi and M & M "took occupancy of the Property in
January 2008" after Galli evicted "Glory Shipping and Travel [which] was the tenant on
the Property at the time of the April 2007 citation that is the basis for the current
injunction action." (R. 15, Mar. 3, 2010 Galli affidavit, at 2.) He also explicitly states that
M&M "obtains functional vehicles," not junk vehicles. (Mar. 3, 2010 Galli affidavit, at 2.)
       {¶ 21} Ayegbusi's March 3, 2010 affidavit corroborates Galli's statements, attesting
that M & M "took occupancy of the Property in January 2008" so as to "obtain[] used
vehicles, store[] them temporarily in the warehouse on the premises at Ohlen Avenue and
then ship[] them overseas for resale." (R. 15, Ayegbusi Affidavit, at 1.) Ayegbusi
emphasizes that he "use[s] the property only for warehousing vehicles to be shipped to
Africa"; he "does not operate a salvage yard, junkyard, or auto repair shop." (Ayegbusi
affidavit, at 2.) Ayegbusi avers that his business "obtains vehicles that are operational and
functional," they "are not used for parts" nor are they "salvage materials or junk," and
"[t]he only maintenance performed on these vehicles consists of minor adjustments
designed to prepare the vehicles for final shipment and resale." (Ayegbusi affidavit, at 2.)
In addition, Ayegbusi notes, the "vehicles are wholesale inventory" and "[a] customer
cannot buy a vehicle at this Property nor can a customer come to this Property for vehicle
repairs." (Ayegbusi affidavit, at 2.)
       {¶ 22} Galli additionally provided "photographs of the Property taken * * * in June
2008, March 2009, May 2009, November and December 2009 and January 2010."
(Mar. 3, 2010 Galli affidavit, at 2.) On review, the six color images depict various aspects
of the property, including several views of the lot adjoining the warehouse. One of the
photographs in particular shows approximately 11 vehicles parked on what appears to be a
gravel surface; all of the vehicles appear to be well-maintained, with all tires and windows
intact and no discernible rust, dents or scratches. In his memorandum contra, Galli
asserted that the photos demonstrate "that this Property is a warehouse for fully
functional vehicles awaiting shipment to Africa." (R. 15, at 6-7.)
No. 12AP-864                                                                               9


       {¶ 23} Furthermore, according to Galli, the fact that the photographs show vehicles
parked on what appears to be a gravel surface refutes the City's allegation that he parked
vehicles improperly on unimproved surfaces or in unapproved areas. After noting that
the City did not provide a citation to any code section the gravel violates, Galli asserted
that the gravel is a valid nonconforming use, even assuming it violates the present code.
See Wooster v. Entertainment One, Inc., 158 Ohio App.3d 161, 2004-Ohio-3846, ¶ 45
(9th Dist.), citing C.D.S., Inc. v. Gates Mills, 26 Ohio St.3d 166, 168 (1986) ("A
nonconforming use of land is a use that was lawful before the enactment of a zoning
amendment, but one which, although no longer valid under the current zoning rules, may
be lawfully continued."). Galli claimed "[p]ursuant to 3363.29, attached hereto, effective
at the time of the original occupancy permit, gravel [was] a perfectly acceptable material
on which to store vehicles under M zoning" at the time of their 1978 Occupancy Permit.
(R. 15, at 13.) See State ex rel. Bailey v. Madison, 10th Dist. No. 12AP-284, 2012-Ohio-
4950, ¶ 15 (the landowner claiming a valid nonconforming use has the burden of proving
two requirements: first, the landowner must prove the use was in existence prior to the
enactment of the prohibitory land use regulation, and, then, the landowner must show the
land use in question was lawful at the time the use was established). Furthermore, Galli
claimed "gravel is still a perfectly acceptable surface on which to store wholesale inventory
consisting of vehicles," because, while the code "requires paved surfaces for parking and
loading spaces, parking lots and aisles and driveways," "[o]utdoor wholesale storage areas
are not included in this requirement." (R. 15, at 13.)
       {¶ 24} Based on the foregoing, Galli asserted that his current use of the property
conforms to the 1978 occupancy permit and they are not in violation of C.C.C. 3305.01.
Accordingly, they contended that, at a minimum, they met their reciprocal burden and
established that genuine issues of material fact remain regarding the City's allegations
that they "continued to use the Property improperly in late 2007, 2008 and 2009 as a[n]
auto service garage and used car sales lot; * * * and that they parked vehicles improperly
on unimproved surfaces or in unapproved areas." (Appellant's brief, at 6.) Furthermore,
they claimed they affirmatively established that the property did not function as a
junkyard or salvage yard, and were entitled to summary judgment on that issue.
       C. Res Judicata
No. 12AP-864                                                                              10


       {¶ 25} The City contended, and the trial court agreed, that Galli's response to its
complaint was "barred by the doctrines of res judicata and collateral estoppel" pursuant
to the Board's 2007 determination. (Emphasis sic.) (R.13, at 3.) Galli, however, points
out that the City's July 29, 2009 complaint "alleges that the violations giving rise to the
April 20, 2007, order continued through late 2007, 2008 and 2009." (Emphasis sic.)
(Appellant's brief, at 3-4.) Accordingly, he argues, his "failure to appeal a citation as to
conduct that occurred before April, 2007," should not preclude him "from arguing that
conduct after 2007 was not in violation of the zoning code." (R. 15, at 5.)
       {¶ 26} One of the key factors which must be present for the collateral estoppel
branch of res judicata to apply is that the issue in the second action must have been
" 'actually and necessarily litigated and determined in a prior action.' " Progressive
Plastics, Inc. v. Testa, 133 Ohio St.3d 490, 2012-Ohio-4759, ¶ 17, quoting Whitehead v.
Gen. Tel. Co., 20 Ohio St.2d 108, 112 (1969). The Supreme Court of Ohio has held that it
is "an absolute due process prerequisite to the application of collateral estoppel" for the
party asserting issue preclusion to prove that the prior action involved the "identical issue
[that] was actually litigated, directly determined, and essential to the judgment in the
prior action." Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 201 (1983),
citing Norwood v. McDonald, 142 Ohio St 299 (1943). See also State ex rel. Davis v. Pub.
Emps. Retirement Bd. 174 Ohio App.3d 135, 143-45, 2007-Ohio-6594 (10th Dist.).
       {¶ 27} While the sole matter before the Board in September 2007 was whether the
property's use, as observed by Hann in April 2007, constituted a violation of the zoning
code, the City's 2009 complaint reached beyond the scope of the issues previously
litigated in order to introduce the additional matter of alleged ongoing violations
occurring beyond April 2007 and Galli's "non-complia[nce]" with the 2007 Order. (R. 1, at
4.) The City argued that an injunction is necessary because Galli "remains in violation of
the order issued by code enforcement in 2007" and submitted additional evidence to
establish Galli's continued "non-compliance with the Order." The evidence falls short of
what is required to prove that the Board determination and the matter herein involved
identical issues, as will be explained later in our decision. (Appellee's brief, at 4; R. 13,
at 6.) See Neinast v. Fairfield Cty. Bd. of Trustees, 5th Dist. No. 2010 CA 011, 2010-
No. 12AP-864                                                                              11


Ohio-5569, ¶ 51 ("The burden of pleading and proving the identity of issues rests on the
party asserting the collateral estoppel.").
       {¶ 28} The record on review supports Galli's assertion that, while he does not agree
with the Board's 2007 decision, he is not challenging that decision or the facts and issues
adjudicated therein, but, instead, is responding to the City's allegations of continuing
violations with evidence that "there are no current violations of the zoning code occurring
on this Property" and the property "d[oes] not continue to operate" in a manner
constituting a change of use from the 1978 occupancy permit. (Appellant's brief, at 7.)
Hines v. Kline Eng., 116 Ohio App.3d 768, 771 (2d Dist.1996) (Although the res judicata
doctrine applied to the decisions of a township board of zoning appeals relating to the
grant or denial of variances, the defendant's "claims did not constitute an attack on the
variance itself, and thus [were] not barred by the doctrine of res judicata."). (Emphasis
sic.) Thus, where the City's allegations regarding violations occurring after April 2007
involved facts and issues that were not " 'actually and necessarily litigated and determined
in the prior action,' " and Galli's responsive assertion and evidence focuses on "defending
* * * against the City's allegations [and evidence] that there were violations after April
2007," the collateral estoppel doctrine does not apply to bar that response. Progressive
Plastics at ¶ 17, quoting Whitehead at 112. (R. 15, at 5.)
       D. Substantive Issues
       {¶ 29} The City further suggested that summary judgment in its favor was
appropriate even if Galli's arguments were not barred by res judicata because the "uses
admitted to" by defendants prove "there has been a change of use which requires zoning
clearance per C.C.C. 3305.01." (R. 13, at 6; Appellee's brief, at 12.) Specifically, the City
contended Galli "admit to 'parking vehicles on unimproved surfaces.' " (R. 13, at 5,
quoting appellant's Motion for Summary Judgment.) The City further contended that
Galli is "admittedly still running an auto shop," citing his statements that M & M "makes
'repairs' to the vehicles it houses, and 'polishes them for resale,' " coupled with the fact
that Ayegbusi "runs a business actually called 'M & M Auto Shop,' " and his name
registration form filed with the Secretary of State "lists the nature of this business [a]s
'repairing damaged vehicles.' " (Appellee's brief, at 10, 11, 12.)
No. 12AP-864                                                                            12


       {¶ 30} Galli responded to the former claim by arguing that they certainly made no
such admission, and, despite the fact that the City has never indicated which code section
the gravel lot violates, they had provided evidence establishing the gravel qualified as a
permissible nonconforming use.      Our review reveals the City misrepresented Galli's
statement, which reads in full: "Finally, the Complaint alleges that the Defendant is
parking vehicles on unimproved surfaces." (R. 11, at 6.)
       {¶ 31} To the latter assertion, Galli responded that the "minor repairs" M & M
makes to its "wholesale inventory" are consistent with its operation as "a warehouse for
the storage of wholesale goods," as opposed to an auto repair shop. (R. 15, at 2.) On
appeal, Galli additionally asserts that "the term auto body repair shop suggests that the
owner of such an establishment would be engaging in selling his services to repair vehicles
owned by third parties," which "is not what happens on this Property." (Appellant's brief,
at 12.) Because the zoning code does not define "auto service garage" or "auto repair
shop," we find that Galli established a genuine issue of material fact as to whether
M & M's activities constitute the operation of such a business. See Bailey at ¶ 7, 8
(holding that "when terms are not defined in a zoning regulation, a court should consider
the common and ordinary meaning of those terms" and "where there is ambiguity, courts
must strictly construe restrictions on the use of real property in favor of the property
owner"), citing In re Appropriation for Hwy. Purposes of Land of Seas, 18 Ohio St.2d 214
(1969); Allen v. Cty. Bd. of Zoning Appeals, 186 Ohio App.3d 196, 2010-Ohio-377, ¶ 16
(2d Dist.), citing BP Oil Co. v. Dayton Bd. of Zoning Appeals, 109 Ohio App.3d 423, 432
(2d Dist.1996).
       {¶ 32} In the final analysis, the parties' evidence submitted for and against
summary judgment provides competing inferences as to whether Galli's use of the subject
property beyond April 2007 constitutes a change of use, pursuant to C.C.C. 3305.01, from
the 1978 occupancy permit sanctioning the property's use as a "warehouse & office
building." (R. 13, exhibit D.) Because a resolution of these issues necessarily would
require the court to weigh the parties' evidence and resolve conflicting reasonable
inferences, we find summary judgment to be inappropriate for either party in this case.
See Dupler v. Mansfield Journal Co., Inc., 64 Ohio St.2d 116, 121 (1980) (when
considering a motion for summary judgment, the trial court may not weigh the
No. 12AP-864                                                                              13


evidence, judge the credibility of witnesses, or select among reasonable inferences).
Accordingly, the trial court erred in granting summary judgment to the City on its claims
for injunctive relief and a declaration of public nuisance, and Galli's second assignment of
error is sustained. The trial court did not err, however, in denying Galli's motion for
summary judgment on the specific issue of the property's use as a junkyard or salvage
yard, and his first assignment of error is overruled.
V. Disposition
       {¶ 33} Having sustained Galli's second assignment of error and overruled his first
assignment of error, we reverse the decision of the Franklin County Municipal Court
granting the City's motion for summary judgment, but affirm the court's decision to deny
summary judgment to Galli. Accordingly, we remand this matter to the trial court for
further proceedings consistent with this decision.
                                                                   Judgment affirmed in part,
                                                        reversed in part, and cause remanded.

                           SADLER and CONNOR, JJ., concur.

              McCORMAC, J., retired, formerly of the Tenth Appellate
              District, assigned to active duty under authority of the Ohio
              Constitution, Article IV, Section 6(C).
