[Cite as Miller v. Canton, 2011-Ohio-574.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




COLLIN MILLER                                :      JUDGES:
                                             :      Hon. W. Scott Gwin, P.J.
        Appellee                             :      Hon. Sheila G. Farmer, J.
                                             :      Hon. John W. Wise, J.
-vs-                                         :
                                             :
CITY OF CANTON                               :      Case No. 2010CA00008
                                             :
        Appellant                            :      OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Court of Common Pleas,
                                                 Case No. 2009CV02731



JUDGMENT:                                        Reversed and Remanded




DATE OF JUDGMENT ENTRY:                          February 7, 2011




APPEARANCES:

For Appellant                                    For Appellee

KEVIN R. L'HOMMEDIEU                             DAVID L. HERBERT
THOMAS A. BURNS                                  KRISTINE W. BEARD
218 Cleveland Avenue, SW                         4450 Belden Village, NW
Canton, OH 44701-4218                            Canton, OH 44718
Stark County, Case No. 2010CA00008                                                        2

Farmer, J.

         {¶1}   In 1999, appellee, Collin Miller, received a permit from the zoning

inspector for appellant, the City of Canton, to erect a fence around his property located

on Cleveland Avenue in Canton, Ohio. Appellee was permitted to build up to a nine foot

fence.

         {¶2}   Over the next several years, parts of the fence were vandalized and/or

stolen. Appellant notified appellee that his fence needed to be repaired. Necessary

parts could not be found, so appellee decided to replace the fence. In 2007, appellee

received a new permit to replace the fence, permitting him to build a fence up to four

feet high.

         {¶3}   Appellee erected a new fence in place of the old fence, on top of a brick

retaining wall. The total height of the new fence from the ground level was 4' 9".

         {¶4}   In 2009, appellee received a notice of violation regarding the height of the

new fence. Appellee appealed to the Canton Board of Zoning Appeals, requesting a

variance. A hearing was held on June 16, 2009. By decision dated June 17, 2009, the

Board of Zoning Appeals denied the request.

         {¶5}   On July 14, 2009, appellee filed an appeal with the Court of Common

Pleas of Stark County, Ohio. Appellee argued: 1) a new permit was not required as the

1999 permit up to nine feet controlled the replacement of his fence, and (2) the

applicable ordinance regarding height requirements for fences was silent and

ambiguous as to how to measure for height. By judgment entry filed December 15,

2009, the trial court agreed with appellee's first argument and reversed the Board's

decision.
Stark County, Case No. 2010CA00008                                                          3


       {¶6}      Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                                I

       {¶7}      "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FINDING THAT

CANTON COULD NOT REQUIRE MILLER TO OBTAIN A PERMIT TO ERECT A

FENCE IN ACCORDANCE WITH ITS ZONING ORDINANCE."

                                                I

       {¶8}      Appellant claims the trial court erred in finding because of the existence of

the 1999 permit, it could not require appellee to obtain a new permit to install a new

fence to replace the 1999 fence. We agree.

       {¶9}      R.C. 2506.04 governs appeals from administrative agencies and states

the following:

       {¶10} "The court may find that the order, adjudication, or decision is

unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the

preponderance of substantial, reliable, and probative evidence on the whole record.

Consistent with its findings, the court may affirm, reverse, vacate, or modify the order,

adjudication, or decision, or remand the cause to the officer or body appealed from with

instructions to enter an order, adjudication, or decision consistent with the findings or

opinion of the court. The judgment of the court may be appealed by any party on

questions of law as provided in the Rules of Appellate Procedure and, to the extent not

in conflict with those rules, Chapter 2505. of the Revised Code."

       {¶11} In Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 147,

2000-Ohio-493, citations omitted, the Supreme Court of Ohio discussed the difference
Stark County, Case No. 2010CA00008                                                        4


between the standards of review to be applied by the trial court and the court of

appeals:

       {¶12} "Construing the language of R.C. 2506.04, we have distinguished the

standard of review to be applied by common pleas courts and courts of appeals in R.C.

Chapter 2506 administrative appeals. The common pleas court considers the 'whole

record,' including any new or additional evidence admitted under R.C. 2506.03, and

determines whether the administrative order is unconstitutional, illegal, arbitrary,

capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,

and probative evidence.***

       {¶13} "The standard of review to be applied by the court of appeals in an R.C.

2506.04 appeal is 'more limited in scope.' (Emphasis added.)***. 'This statute 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 preponderance 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 appellate court.***The fact that the court of appeals, or this

court, might have arrived at a different conclusion than the administrative agency is

immaterial.   Appellate courts must not substitute their judgment for those of an

administrative agency or a trial court absent the approved criteria for doing so.'***"

       {¶14} In reviewing the trial court's decision, this court must apply the abuse of

discretion standard. Kisil v. Sandusky (1984), 12 Ohio St.3d 30. In order to find an

abuse of discretion, we must determine the trial court's decision was unreasonable,
Stark County, Case No. 2010CA00008                                                       5

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore (1983) 5 Ohio St.3d 217."

       {¶15} The facts are not in dispute, and are adequately summarized in Exhibit 1,

attached to the record and transcript from the variance hearing before the Canton Board

of Zoning Appeals filed August 24, 2009:

       {¶16} "Mr. Miller installed a 6' high metal fence around the front of his property

with a permit dated Sept. 20, 1999. The fence was metal with the spindles spaced

about 3" apart, installed on top of a small brick wall bordering the front yard of the

property.   Between the wall and the fence, Mr. Miller hoped to keep debris and

trespassers off his property.

       {¶17} "The fence became an issue with the two adjacent neighbors, both stating

the fence was obstructing the view of traffic when exiting these two businesses. This

escalated into a major situation and the fence was gradually broken off of the wall and

either stolen or the pieces would be neatly stacked near the front porch.

       {¶18} "After most of the fence was removed, Mr. Miller came to the Zoning office

to see if he could have another permit to install a shorter, 4' high vinyl fence around the

front yard area. The past problems were discussed with a new permit being issued on

September 26, 2007. The new fence is a 4' high vinyl mounted with the base of the

fence even with the top of the brick wall, making the wall and fence combo 4' 9" tall.

       {¶19} "The fence has brought back the original issues of obstruction of visibility."

See, Board of Zoning Appeals Staff Review.

       {¶20} Also attached to the record and transcript is a letter from appellee to the

Board of Zoning Appeals wherein appellee stated the following:
Stark County, Case No. 2010CA00008                                                         6


       {¶21} "I purchased a new permit to build a new fence. I was told only a 4 ft

fence would be allowed. I had constructed a new fence 4 ft high as measured from the

inside of my brick wall. This fence is three foot lower than the fence I previously had.

       {¶22} "A letter dated April 16, 2009 indicates that the fence is too high and I

would have to lower it or remove it. The measurement was taken from an adjoining

property and the sidewalk. See exhibit 'B'.

       {¶23} "It has been agreed by the law department that the 'Building and Zoning

Code is silent as to where the four foot height could be measured from, is within the

inspector's discretion to use either one of two standards i.e. from the grade at the

sidewalk level or in this case, the abutting driveway.' See exhibit 'C'. I am contesting

that the ordinance is by the law department's own admission is silent regarding the way

a fence height is measured. Also, I believe the obstruction of view is not an issue as

per exhibit 'D.' "

       {¶24} As depicted in Exhibits A, B, and C, the new fence was constructed in a

similar way as the 1999 fence. The main posts for support were anchored into the

ground while the fence balustrades rested on top of the brick wall.         Per appellee's

testimony, the brick wall was constructed at the time of the installation of the 1999

fence. See, Record and Transcript, Exhibit 3 at 3-4.

       {¶25} Despite appellee's contention that he was given a verbal assent to

repair/replace the fence without acquiring a new permit, he nevertheless applied for and

received a new permit in 2007. We note "[e]quitable estoppel does not apply against a

state or its agencies in the exercise of a governmental function.***The enforcement of a
Stark County, Case No. 2010CA00008                                                       7

zoning ordinance is a governmental function of a municipal corporation***." City of

Westerville v. Kuehnert (1988), 50 Ohio App.3d 77, 83. (Citations omitted.)

       {¶26} In his brief to the trial court, appellee argued: 1) a new permit was not

required as the 1999 permit up to nine feet controlled the replacement of his fence, and

2) the applicable ordinance [Canton City Ordinance 1129.05(b)] regarding height

requirements for fences was silent and ambiguous as to how to measure for height.

The trial court agreed with appellee's first argument:

       {¶27} "The Court agrees with the Appellant [appellee herein] that no permission

was ever required by the Canton BZA to replace the dilapidated aluminum fence with

the white vinyl fence along his property line, as a permit was granted in 1999 for the

erection of a fence not to exceed 9' high. Additionally, the replacement of the aluminum

fence only occurred because the City contacted the Appellant and instructed him to

repair his fence. The combined height of the brick wall and aluminum fence erected in

1999 was 6'. The combined height of the white vinyl fence and the brick wall is 4'9",

which is actually 2' lower in height than the original fence. Further, the permit issued in

1999 did not contain any restrictions on replacing the fence and the permit issued in

1999 was never revoked." See, Judgment Entry filed December 15, 2009.

       {¶28} The trial court did not issue a ruling on appellee's second argument

regarding the ambiguity of how to measure a fence for height.

       {¶29} Canton City Ordinance 1129.05 governs fences and states the following in

pertinent part:

       {¶30} "Fences and walls shall be permitted in any required yard or along the

edge of any yard in accordance with the following provisions:
Stark County, Case No. 2010CA00008                                                       8


       {¶31} "(a) Such fence or wall may be placed up to the lot line;

       {¶32} "(b) Such fence or wall may be four feet in height in the front yard, six feet

in height in the side yard and eight feet in height in the rear yard."

       {¶33} Canton City Ordinance 1161.02 provides the following in pertinent part:

       {¶34} "No building or other structure shall be erected, moved, added to or

structurally altered***without a certificate issued by the Zoning Inspector unless he

receives a written order from the Board of Zoning Appeals as provided by this

Ordinance.

       {¶35} "A zoning certificate shall be required for any of the following, except as

herein provided:

       {¶36} (g) Fences."

       {¶37} In his own testimony, appellee admitted the 1999 permitted fence no

longer existed as "over the years several chunks kept getting stolen um, ripped off of it,

that kind of thing and certainly in the last uh, couple years major chunks um, got stolen."

T. at 3. Appellee could not find replacement parts, so "the rest of the fence got taken off

the wall" (T. at 4), or as he averred in his letter to the Board of Zoning Appeals, "the

remaining portion of my fence has been taken down by the Building department without

due process."

       {¶38} Based upon these facts, we conclude Canton City Ordinance 1161.02(g)

required a new permit, and the trial court erred in finding the 1999 permit controlled the

building of the new fence.
Stark County, Case No. 2010CA00008                                                     9


      {¶39} Because the trial court did not address appellee's second argument as

outlined in his brief to the trial court, we remand the issue to the trial court for such

determination.

      {¶40} The sole assignment of error is granted.

      {¶41} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby reversed, and the matter is remanded to said court for further determination.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.




                                            s/ Sheila G. Farmer___________________




                                            s/ W. Scott Gwin____________________




                                            s/ John W. Wise ____________________


                                                             JUDGES

SGF/sg 124
Stark County, Case No. 2010CA00008                                                  10


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                            FIFTH APPELLATE DISTRICT



COLLIN MILLER                               :
                                            :
       Appellee                             :
                                            :
-vs-                                        :        JUDGMENT ENTRY
                                            :
CITY OF CANTON                              :
                                            :
       Appellant                            :        Case No. 2010CA00008




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

judgment of the Court of Common Pleas of Stark County, Ohio is reversed, and the

matter is remanded to said court for further determination as set forth in the opinion.

Costs to be divided equally between the parties.




                                            s/ Sheila G. Farmer___________________




                                            s/ W. Scott Gwin____________________




                                            s/ John W. Wise ____________________

                                                     JUDGES
