[Cite as Brobst v. Lyndhurst, 2018-Ohio-2725.]


                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105849



                                      PAUL J. BROBST, ET AL.

                                                       PLAINTIFFS-APPELLANTS/
                                                       CROSS-APPELLEES

                                                 vs.

                                       CITY OF LYNDHURST

                                                       DEFENDANT-APPELLEE/
                                                       CROSS-APPELLANT




                                        JUDGMENT:
                            AFFIRMED IN PART, REVERSED IN PART,
                                      AND REMANDED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-16-872538

        BEFORE: E.T. Gallagher, P.J., Stewart, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: July 12, 2018
ATTORNEY FOR APPELLANTS

Peter Turner
Mayers, Roman, Friedberg & Lewis
28601 Chagrin Blvd., Suite 600
Cleveland, Ohio 44122


ATTORNEYS FOR APPELLEE

Paul T. Murphy
Brendan Mewhinney
Raymond J. Schmidlin, Jr.
Henderson, Schmidlin & McGarry Co., L.P.A.
840 Brainard Road
Highland Heights, Ohio 44143
ON RECONSIDERATION1




        1
              The original decision in this appeal, Brobst v. Lyndhurst, 8th Dist. Cuyahoga No. 105849,
2018-Ohio-1518, released on April 19, 2018, is hereby vacated. This opinion, issued upon reconsideration, is the
court’s journalized decision in this appeal. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.
EILEEN T. GALLAGHER, P.J.:

       {¶1} Plaintiffs-appellants/cross-appellees, Paul J. Brobst, et al., appeal from the trial

court’s judgment granting summary judgment in favor of defendant-appellee/cross-appellant, the

city of Lyndhurst, Ohio. The appellants raise the following assignment of error for review:

       1. The trial court erred as a matter of law in denying appellants’ motion for
       summary judgment, and, instead, in granting, in part, appellee’s motion for
       summary judgment.

       {¶2} The city raises the following cross-assignment of error:

       1. The trial court erred in denying [the city’s] motion to submit additional
       evidentiary materials.

       {¶3} After careful review of the record and relevant case law, we reverse the trial court’s

judgment granting summary judgment in favor of the city. We, however, affirm the trial court’s

judgment denying the city’s request to submit additional evidentiary material in support of its

motion for summary judgment.

                              I. Procedural and Factual History

       {¶4} Appellants have resided at, and have been owners of, the real property and dwelling

located in the city of Lyndhurst, Ohio, since 1996. Appellants’ home is located in an area of the

city zoned for residential use. This appeal arises out of a dispute between the appellants and the

city concerning whether the appellants’ operation of a firearms dealership from their home

constituted a “home occupation” in accordance with the city’s codified ordinances.

       {¶5} In 2005, appellant Paul Brobst met with the Lyndhurst Police Chief and the

Lyndhurst Building Commissioner to discuss his plans to operate a firearms dealership out of his

home. Mr. Brobst averred that he was informed that he would be permitted to operate the

firearms dealership out of his home as long as he met the following conditions (1) only family
members could be employees, (2) that he place no exterior signs advertising his business, (3) that

the business would be limited to no more than 25 percent of the ground floor of his home, and (4)

that the business would have no outside storage.

       {¶6} After meeting with city officials, the appellants opened and continuously operated a

firearms dealership known as “Gun Galaxy” from their home. Over the years, Mr. Brobst

renewed his Federal Firearms License three times.

       {¶7} In June 2016, the appellants received a notification letter from the city stating that

they were illegally operating a commercial enterprise in a single family residential zone in

violation of the city’s ordinances. The appellants were advised that the city would take all

actions permitted by law if appellants “d[id] not take steps to legalize this illegal use within 30

days of [the notification.]” In November 2016, appellants received a second notification letter,

advising them “to cease operation of its business at that location, or to request a zoning change

from the City Planning Commission, or request a use variance from the City Board of Zoning

Appeals.”

       {¶8} In December 2016, the appellants filed a complaint against the city, seeking (1) “a

declaratory judgment that the home occupation engaged in by [appellants] is in lawful

compliance with the city’s Zoning Code,” and (2) “a preliminary and permanent injunction

enjoining [the city] from taking an action, civil or otherwise, against [appellants] based on an

alleged violation of the city’s Zoning Code.”

       {¶9} In response, the city filed its answer and two counterclaims against the appellants.

In its first counterclaim, the city sought injunctive relief to prevent the appellants from

conducting a retail sales operation from their home in violation of Section 1152.13 of its

Codified Ordinances. In its second counterclaim, the city sought a declaratory judgment that the
appellants’ in-home sales operation constituted a nuisance under Chapter 3767 of the Ohio

Revised Code.

       {¶10} Appellants moved for summary judgment in March 2017, arguing that their home

occupation is a lawful accessory use in compliance with the city’s zoning code. The city filed a

brief in opposition and its own motion for summary judgment, arguing that the appellants were

operating a retail store in violation of residential zoning restrictions. After the deadline for

filings under the trial court’s briefing schedule had expired, the city filed a motion to submit

additional evidentiary materials, which the trial court denied.

       {¶11} In April 2017, the trial court entered judgment in favor of the city on its

counterclaim for injunctive relief, but against the city on its nuisance claim. The trial court

further entered judgment against the appellants on both claims raised in their complaint. The

trial court’s judgment stated, in relevant part:

       Ohio court decisions do not support the sale of goods from a residence as within
       the term “home occupation.” The City appropriately describes this as simply a
       “retail store.”

       ***

       Based on the parties’ evidentiary submissions on summary judgment, the Court
       finds that there is no genuine issue of material fact and after construing the
       evidence most strongly in Plaintiff’s favor, a reasonable trier of fact could come to
       but one conclusion and that conclusion is that the operation of a firearms sales
       dealership from a property zoned for residential use is not a home occupation
       under Lyndhurst’s ordinances and Plaintiff’s sales operation is in violation
       thereof.

       As to Defendant’s second counterclaim to enjoin a nuisance, the Court finds that
       based on the evidentiary record before it today, there is no genuine issue of
       material fact and after construing the evidence most strongly in Defendant’s favor,
       a reasonable trier of fact could come to but one conclusion and that conclusion is
       that Plaintiff’s activities have not been established to be a nuisance as defined by
       R.C. 3767.01(C).
       {¶12} The appellants now appeal from the trial court’s judgment granting summary

judgment in favor of the city. The city appeals from the trial court’s denial of its motion to

submit additional evidence in support of its motion for summary judgment.

                                      II. Law and Analysis

       {¶13} In their sole assignment of error, appellants argue the trial court erred as a matter of

law in denying their motion for summary judgment and granting, in part, the city’s motion for

summary judgment.

       {¶14} Our review of a trial court’s grant of summary judgment is de novo. Grafton v.

Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Pursuant to Civ.R. 56(C),

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) reasonable minds can come to

but one conclusion and that conclusion is adverse to the nonmoving party, said party being

entitled to have the evidence construed most strongly in his favor. Horton v. Harwick Chem.

Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of the syllabus; Zivich v.

Mentor Soccer Club, 82 Ohio St.3d 367, 696 N.E.2d 201 (1998).               The party moving for

summary judgment bears the burden of showing that there is no genuine issue of material fact

and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 Ohio St.3d 280, 662

N.E.2d 264 (1996).

       {¶15} In their motion for summary judgment, the appellants argued that the operation of

Gun Galaxy constituted a lawful “home occupation” pursuant to Lyndhurst City Ordinances

(“L.C.O.”) 1160.04(A). In contrast, the city maintained that the appellants were unlawfully

operating a “retail store” in violation of the city’s residential zoning restrictions. The parties do

not dispute that the appellants’ dwelling is located in a residential use zoning district. Thus, this
court is required to assess whether the firearm-sales operation falls within the definition of a

“home occupation,” as the appellants suggest, or is an unlawful “retail store,” as held by the trial

court.

         {¶16} The application of a statute or ordinance to the facts is a question of law.

Cleveland Clinic Found. v. Bd. of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23

N.E.3d 1161, ¶ 25. In construing the ordinances at issue, we must adhere to the rules of

statutory construction. See Bosher v. Euclid Income Tax Bd. of Rev., 99 Ohio St.3d 330,

2003-Ohio-3886, 792 N.E.2d 181, ¶ 14. When the language of an ordinance is unambiguous,

we apply the clear meaning of the words used. Id. In addition, provisions relating to the same

general subject matter must be read in pari materia. Id. Finally, it is a well-established rule of

construction that specific provisions shall prevail over general provisions.                              Village

Condominiums Owners Assn. v. Montgomery Cty. Bd. of Rev., 106 Ohio St.3d 223,

2005-Ohio-4631, 833 N.E.2d 1230, ¶ 10.

         {¶17} L.C.O. 1150.09(c)(73) defines a “home occupation” as follows:

         “Home occupation” means an accessory use2 which is an activity, profession,
         occupation, service, craft or revenue-enhancing hobby clearly incidental and
         subordinate to the use of the premises as a dwelling and is conducted entirely
         within the dwelling unit. However, such home occupation shall be conducted in
         the dwelling used by the person as his or her private residence, no person shall be
         employed other than members of his or her immediate household and such home
         occupation shall not give rise to a nuisance of any kind and shall not be otherwise
         detrimental to the district.

         {¶18} At the time this case was initiated, the city’s ordinances provided that an individual

was permitted to operate a “home occupation” as an accessory use in a residential district,

provided the following conditions were satisfied:


         2
            L.C.O. 1150.09(c)(3) defines an accessory use as “a subordinate use or building located on the same lot
with, and customarily incidental to, the main use or building.”
       A. No person is employed other than members of his or her immediate household;

       B. The home occupation or professional office generates no outdoor storage of
       materials, equipment or vehicles;

       C. Such home occupation or professional office occupies no more than
       twenty-five percent of the total ground floor area of the dwelling;

       D. The home occupation or professional office is conducted wholly within the
       dwelling;

       E. No equipment is used which will create objectionable disturbances beyond the
       premises;

       F. No window display or signboard is used to advertise such occupation, other
       than a name plate attached to the dwelling, as provided for in Section 1170.08,
       which may designate such occupation thereon along with the occupant’s name and
       address; and

       G. The home occupation or professional office does not change the residential
       character of the dwelling exterior.

L.C.O. 1160.04(a)(4).

       {¶19} It is necessary to note that L.C.O. 1160.04(a)(4) was amended less than two months

after the trial court’s judgment in this case.   The section now includes the following additional

condition:

       I. The home occupation shall not allow * * * sales of retail goods not
       manufactured or fabricated on the premises.

(Emphasis added.)       L.C.O. 1160.04(a)(4)(I) (Ord. 2017-24.         Effective June 5, 2017.).

Certainly, this new condition is relevant to the issue presented in this case.   If applicable, the

appellants’ firearm-sales operation would not comply with the requirements of L.C.O.

1160.04(a)(4) because the firearms sold from their home are not manufactured or fabricated on

the premises. However, because the amendment to the ordinance was made after the trial
court’s judgment was rendered in this case, we are unable to consider the recent amendment to

the city’s planning and zoning code. Under R.C. 713.15:

        The lawful use of any dwelling, building, or structure and of any land or premises,
        as existing and lawful at the time of enacting a zoning ordinance or an amendment
        to the ordinance, may be continued, although such use does not conform with the
        provisions of such ordinance or amendment, but if any such nonconforming use is
        voluntarily discontinued for two years or more, or for a period of not less than six
        months but not more than two years that a municipal corporation otherwise
        provides by ordinance, any future use of such land shall be in conformity with
        sections 713.01 to 713.15 of the Revised Code. The legislative authority of a
        municipal corporation shall provide in any zoning ordinance for the completion,
        restoration, reconstruction, extension, or substitution of nonconforming uses upon
        such reasonable terms as are set forth in the zoning ordinance.

Accordingly, our review is limited to whether the operation of Gun Galaxy qualifies as a lawful

home occupation pursuant to the terms of the city’s ordinances as they existed at the time this

case was initiated.     If so, the appellants are entitled to continue the operation of Gun Galaxy

even though such use may not conform with the amended terms of L.C.O. 1160.04(a)(4).

        {¶20} After careful consideration, we find that the intentional amendment of L.C.O.

1160.04(a)(4) to exclude the “sales of retail goods not manufactured or fabricated on the

premises” demonstrates the city’s attempt to add a new condition to the ordinance that did not

exist at the time this case was decided.   Contrary to the trial court’s judgment, we find no words

or phrases in the applicable versions of L.C.O. 1150.09(c)(73) or 1160.04 that would preclude an

operation involved in the sale of goods from qualifying as a lawful “home occupation” in a

residential district.   While L.C.O. 1150.09(c)(73) and 1160.04 contain various requirements and

conditions for an operation to qualify as a lawful “home occupation,” there is no express

restriction relating to the sale of goods. Applying the clear meaning of the words used in L.C.O.

1150.09(c)(73), we find the operation of Gun Galaxy can be reasonably construed as the
appellants’ “profession” or “occupation” within the definition of a “home occupation” under the

ordinance.

        {¶21} Our review of provisions relating to the sale of retail goods in other sections of the

city’s ordinances support our interpretation of L.C.O. 1150.09(c)(73) and 1160.04. L.C.O.

1169.06 governs the accessory use of home occupations in “mixed use overlay districts.” Under

L.C.O. 1169.06(c)(8)(D), individuals are prohibited from operating home occupations in mixed

use overlay districts that are engaged in the “retail sales of goods that are not made on the

premises.” Significantly, no such restrictive language was present in L.C.O. 1160.04 at the time

this case was decided.

        {¶22} Under the statutory-construction maxim expressio unius est exclusio alterius (the

express inclusion of one thing implies the exclusion of the other), the express reference to the

restriction prohibiting home occupations in mixed use overlay districts from engaging in the sale

of retail goods under L.C.O. 1169.06 indicates that the omission of such a restriction in L.C.O.

1160.04 was intentional. Thus, the language of the ordinances demonstrates a clear intent to

treat home occupations in residential areas different from those located in mixed use overlay

districts.   In other words, we find nothing in L.C.O. 1160.04 to suggest that the city’s

ordinances intended to prevent home occupations in residential districts from selling retail goods.

 As the appellants argue, if the city’s ordinances intended to impose such a restriction, it would

have included the language set forth under L.C.O. 1169.06(c)(8)(D) in L.C.O. 1160.04.

        {¶23} In addition, we find no merit to the trial court’s reliance on case law from other

districts that interpret the definition of “home occupation” in ordinances that contain more

extensive restrictions or different language than the provisions set forth in L.C.O. 1150.09(c)(73)
and 1160.04. As stated, we are guided by the language used in the ordinance disputed in this

particular case.

       {¶24} Based on the foregoing, we find the trial court erred in concluding that “the

operation of a firearms sales dealership from a property zoned for residential use is not a home

occupation under Lyndhurst’s ordinances.” In short, the trial court’s finding is not supported by

the broad definition of a “home occupation” set forth in L.C.O. 1150.09(c)(73). In the absence

of express language prohibiting individuals from operating a home occupation engaged in the

sale of goods in a residential district, this court’s proverbial hands are tied. It appears the failure

to include such prohibitive language in the applicable ordinance may have been an oversight.

Nevertheless, we must apply the ordinance as it was written at the time this case was before the

trial court, and cannot enforce restrictions that are not included therein.

       {¶25} While we conclude that individuals are not expressly prohibited from selling goods

in residential districts under the city’s ordinances, the appellants are not entitled to judgment as a

matter of law unless they demonstrate that no issues of material fact exist as to their compliance

with the conditions of L.C.O. 1160.04(a)(4). In this case, the appellants attached the affidavit of

Paul Brobst to their motion for summary judgment. Brobst averred, in relevant part:

       [M]y home occupation: (1) employs no person other than myself; (2) has
       generated no outdoor storage of materials, equipment or vehicles; (3) occupies no
       more than twenty-five percent of the total ground floor area of the dwelling; (4) is
       conducted wholly within my home; (5) uses no equipment which creates
       disturbances beyond my home; (6) has no window display or signboard is used to
       advertise the occupation except for a small decal on the side-door window
       informing of store hours; and (7) does not change the residential character of the
       exterior of my home.

       {¶26} As stated by the trial court, the city’s brief in opposition to appellant’s motion for

summary judgment set forth “no evidence to contradict [the] assertion” posed in Brobt’s
affidavit.   Accordingly, we find no issues of material fact as to the appellants’ satisfaction of the

conditions set forth under L.C.O. 1160.04. Accordingly, we reverse the trial court’s judgment

and enter judgment in favor of appellants as a matter of law.

        {¶27} Appellants’ sole assignment of error is sustained.

                                      B.   The City’s Appeal

        {¶28} In its sole cross-assignment of error, the city argues the trial court erred in denying

its motion to submit additional evidentiary materials.

        {¶29} On April 25, 2017, the city filed a motion to submit additional evidentiary

materials to support its motion for summary judgment. The city attempted to introduce an

affidavit of the city’s Chief of Police and photographs taken during the police investigation into a

theft that occurred at appellants’ home in April 2017. The city argued that the photographs

taken inside the appellants’ home “would have been submitted as evidence to show that

appellants were operating a retail store at their residence.”

        {¶30} “The admission or exclusion of relevant evidence rests within the sound discretion

of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of

the syllabus.   An appellate court, therefore, generally reviews a trial court’s decision pertaining

to the admission of evidence for an abuse of discretion.        State v. Gale, 8th Dist. Cuyahoga No.

94872, 2011-Ohio-1236, ¶ 12, citing State v. Finnerty, 45 Ohio St.3d 104, 107, 543 N.E.2d 1233

(1989). An abuse of discretion implies that the trial court’s attitude is unreasonable, arbitrary,

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 50 N.E.2d 1140 (1983).

        {¶31} In this case, the trial court set forth a schedule for dispositive motions.   Pursuant

to the schedule, the city was required to file its motion for summary judgment by March 24,

2017, and its reply brief by April 17, 2017. Under these circumstances, we are unable to
conclude that the trial court abused its discretion by denying the city’s motion to submit

additional evidentiary materials.   The court was well within its right to enforce its briefing

schedule. In addition, there is no dispute that the appellants were engaging in the sale of

firearms from their residential home.       Photographs supporting this uncontested fact are

irrelevant to the interpretation of the city’s ordinances relating to the definition or lawful

accessory use of a home occupation.

       {¶32} The city’s sole assignment of error is overruled.

       {¶33} Judgment affirmed in part, reversed in part, and remanded for proceedings

consistent with this opinion.

       It is ordered that appellants recover from appellee the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to the common pleas court to carry this

judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




EILEEN T. GALLAGHER, PRESIDING JUDGE

MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY;
PATRICIA ANN BLACKMON, J., DISSENTS WITH SEPARATE OPINION

PATRICIA ANN BLACKMON, J., DISSENTING:

       {¶34} I respectfully dissent from the lead opinion and would conclude that Brobst is not

engaged in a “home occupation” under the Lyndhurst’s codified ordinances. Accordingly, I
would affirm the order of the trial court that granted summary judgment to Lyndhurst on Brobst’s

complaint and on Lyndhurst’s first counterclaim.

       {¶35} Brobst argues that in 2005, he met with:

       “Police Chief Andolfini, and as I recall, the Building Commissioner. I was
       informed that I would be permitted to operate the firearms dealership out of my
       home as long as I met four conditions [outlined within L.C.O. for home offices.]”
        (Emphasis added.)

       {¶36} In relevant part, the key provisions include:

       L.C.O. 1150.09(c)(73):
       “Home occupation” means an accessory use which is an activity, profession,
       occupation, service, craft or revenue enhancing hobby clearly incidental and
       subordinate to the use of the premises as a dwelling and is conducted entirely
       within the dwelling. * * * However, such home occupation shall be conducted
       in the dwelling[.] * * * no person shall be employed other than members of his or
       her immediate household an such home occupation shall not give rise to a
       nuisance * * * and shall not be otherwise detrimental to the district.

       L.C.O. 1160.04(a)(4) Professional offices and home occupations. Home
       occupations, as well as professional offices that provide an office in the home of a
       person practicing any of the recognized professions, including but not limited to
       accountant, architect, artist, clergyman, dentist, engineer, lawyer, physician,
       realtor, appraiser, photographer, planner or mental health counselor * * *,
       provided the following conditions are met:

       A. No person shall be employed other than members of his or her immediate
       household;

       B.   The home occupations * * * generates no outside storage;

       C. Such home occupation * * * occupies no more than twenty-five percent of
       the dwelling;

       D. The home occupation * * * is conducted wholly in the dwelling.

       E. No equipment is used which would create objectionable disturbances beyond
       the premises;

       F.   No window display or signboard is used[.]
       {¶37} As an initial matter, I would note that the general allowance of “home professional

offices” and other types of “home occupations” in residential zones arise from the fact that such

uses were customary practices. Mack v. Bd. of Appeals, Town of Homer, 7 Misc.3d 607, 611,

790 N.Y.S.2d 361 (2005). “The doctor, dentist, lawyer, or notary has from time immemorial

used his own home for his office, as has the dressmaker, milliner, and music teacher.”        Id.

(Internal quotations omitted.)    Retail gun sales do not appear to fit within this general

framework.

       {¶38} Furthermore, although Brobst asserts that he met with the chief of police, this

official has no authority to approve building and zoning matters of this nature. Brobst also

states, “as I recall [I also met with] the Building Commissioner.” However, this statement lacks

definitiveness.   The city recognizes, that if it happened, the Building Commissioner does have

some interpretive authority over zoning matters.    However, there is no evidence of a letter,

permit, or certificate containing an official determination on the matter, and no zoning board of

review proceedings. Moreover, “[c]ourts have ‘been loathe to apply doctrines of waiver, laches,

or estoppel to governmental entities or arms thereof.’” State v. Tri-State Group, 7th Dist.

Belmont No. 03 BE 61, 2004-Ohio-4441, ¶ 57, quoting Gold Coast Realty, Inc. v. Bd. of Zoning

Appeals of Cleveland, 26 Ohio St.2d 37, 39, 268 N.E.2d 280 (1971).

       {¶39} Finally, Brobst argued that he had “maintained inventory comparable to the

inventory I have today for at least the past six years [2011].” The city’s evidence demonstrated

that Gun Galaxy’s inventory has increased from the initial 2005 operation. From 2008 through

2011, Brobst bought and sold almost 3,000 firearms. Of this, 250 firearms were not sold and

remained as inventory.    From 2011 to 2014, he bought and sold over 4,000 firearms and 313

remained as inventory.    He advertises online as a “store” with store hours and store policy.
Therefore, it is doubtful to me that the operation of Gun Galaxy continues to be “incidental and

subordinate to the use of the premises as a dwelling,” as required under L.C.O. 1150.09(c)(73).

Accordingly, I dissent.
