COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67559 CITY OF WESTLAKE, OHIO : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : CMS-ONE, INC., ET AL. : OPINION : : DEFENDANTS-APPELLEES : DATE OF ANNOUNCEMENT OF DECISION: APRIL 6, 1995 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-191552. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Richard G. Lillie, Esq. Law Director City of Westlake 27216 Hilliard Boulevard Westlake, OH 44145 For Defendants-Appellees: Jon R. Burney, Esq. Burney & Herthneck Co., L.P.A. 160 Plaza West Building 20220 Center Ridge Road Rocky River, OH 44116 -2- DAVID T. MATIA, J.: Plaintiff-appellant, the city of Westlake, appeals the judgment of the Cuyahoga County Court of Common Pleas in favor of defendant-appellees, CMS-ONE, Inc., et al. ("CMS-ONE"). Appellant raises one assignment of error for review. This court, finding no error, affirms the decision of the trial court. I. STATEMENT OF FACTS Defendant-appellee, CMS-ONE, entered into a lease agreement on December 13, 1988 for the subject property located at 26690 Detroit Road, Westlake, Ohio. Appellee CMS-ONE took possession of said property for the purpose of operating a landscaping supply business. At the time, the property was zoned as an Exclusive Industrial District pursuant to Chapter 1218 of the City of Westlake Ordinances. Subsequently, the property was rezoned as a Planned Office District making appellee's business thereon a nonconforming use. Upon taking possession of the property, appellee began preparing the premises for the operation of the landscaping business. This included the regrading of the land, construction of storage bins and the erection of an advertising sign. Plaintiff-appellant, city of Westlake, issued a stop work order on the renovations due to appellee's failure to obtain the proper building permits. Appellee submitted a development plan to appellant for the wholesale landscaping supply business, operated under the name "Earth To You", as a nonconforming use under Chapter 1225.04 of -3- the Westlake Codified Ordinance. The plan was initially rejected. However, appellant eventually approved the plan incorporating certain modifications regarding the use of proper permits and the prohibition of retail sales. Among other things, appellant maintained no retail sales were to be permitted in an area where only wholesale sales are permitted. Appellee immediately rejected these modifications claiming appellant's attempt to change the application of its zoning code is invalid. While the dispute remained unsettled, appellee continued developing and operating said property as a landscaping supply business. On June 12, 1990, appellant filed a four count complaint seeking permanent and preliminary injunctive relief against appellee enjoining him, from among other things, the retail sale of landscaping material from the property. Appellant subsequently filed a motion for summary judgment and appellee responded with its own motion for summary judgment. Appellee's motion was treated as a motion in opposition. On July 22, 1992, the trial court affirmed in part and denied in part appellant's motion for summary judgment. Subsequently, the parties voluntarily dismissed three counts of the complaint. In the remaining count, the sole issue left to be adjudicated concerned the legality of selling retail goods on appellee's property. On July 9, 1993, the court, based upon its summary judgment ruling, found in favor of appellee holding as a matter -4- of law, retail sales were not prohibited under the Exclusive Industrial District of the zoning ordinance. Appellant filed a timely notice of appeal. However, this court dismissed said appeal pursuant to R.C. 2505.02 as the words "no just reason for delay" were omitted from the trial court's order. After securing a final appealable order, appellant motioned to leave to file appeal instanter. Having granted appellant's motion, this court will proceed with the instant appeal. II. ASSIGNMENT OF ERROR Plaintiff-appellant's, city of Westlake, sole assignment of error provides: THE TRIAL COURT ERRED IN OVERRULING PLAINTIFF-APPELLANT'S MOTION FOR SUMMARY JUDGMENT ON COUNT 1 OF PLAINTIFF-APPELLANT'S COMPLAINT AND IN GRANTING JUDGMENT IN FAVOR OF DEFENDANTS-APPELLEES ON COUNT 1 OF PLAINTIFF-APPELLANT'S COMPLAINT. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN HOLDING DEFENDANT-APPELLEE WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW Plaintiff-appellant, city of Westlake, argues the trial court erred in its interpretation of the Westlake Zoning Code. Specifically, appellant argues appellee's use of the property has never been a valid nonconforming use since operating a business for the purpose of retail sales has never been permitted in an Exclusive Industrial District pursuant to the Westlake Zoning Code. As such, appellant argues the trial court erred in denying its motion for injunctive relief. -5- Appellant's sole assignment of error is not well taken. B. STANDARD OF REVIEW: SUMMARY JUDGMENT The trial court held since there were no pertinent facts left to be decided concerning its ruling on the motions for summary judgment, there was no issue left for trial. The trial court reiterated, as a matter of law, since retail sales are not expressly or impliedly prohibited in an Exclusive Industrial District, no injunctive relief could be afforded. Appellant took exception to the ruling and filed this appeal. As such, we adhere to the same standard in reviewing this appeal as the trial court's standard in summary judgment. Delker v. Ohio Edison Co. (1989), 47 Ohio App.3d 1; Houk v. Ross (1973), 34 Ohio St.2d 77. Civ.R. 56 provides that a summary judgment may be granted only after the trial court determines: 1) no genuine issues as to any material fact remains to be litigated; 2) the moving party is entitled to judgment as a matter of law; and 3) it appears from the evidence that reasonable minds can come but to one conclusion and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1; Temple v. Wean United, Inc (1977), 50 Ohio St.2d 317. However, an entry of summary judgment against the moving party is appropriate where all relevant evidence is before the court, no genuine issue as to any material fact exists, and the non- moving party is entitled to judgment as a matter of law. Celotex -6- Corp. v. Catrett (1986), 477 U.S. 317; Lester v. State Farm Mut. Auto. Ins. Co. (1989), 64 Ohio App.3d 52. With these principles in mind, we turn towards appellant's sole issue for review whether the Executive Industrial District, as defined by the Westlake City Ordinance 1218.03, prohibits retail sales. C. THE TRIAL COURT DID NOT ERR IN ITS HOLDING DEFENDANT-APPELLEE WAS ENTITLED TO JUDGMENT AS A MATTER OF LAW Initially, we note that at the time defendant-appellee, CMS- ONE, took possession of the property at issue, said parcel was zoned as an Exclusive Industrial District. Permitted uses under chapter 1218.03 include: (h) Services, Sales and Storage Establishments. Services, sales and storage establishments are limited to: *** (6) Storage and sale of new lumber and other building materials and equipment; *** The other pertinent portion of the Zoning Code relates to the retroactive zoning ordinances prohibited and/or nonconforming uses: "Nonconforming use of a building" means the use of a building existing lawfully at the time this Zoning Code or any amendment thereto became effective, but which does not conform to the use *** of the district in which it is located. If retail sales of landscape materials is permitted under Chapter 1218.03(h)(6) of the Westlake Zoning Code, appellee's use would have been lawful at the time of the zoning code amendment and therefore a legal nonconforming use. -7- "Zoning ordinances are in derogation of the common law. They deprive a property owner of uses of his land to which he would otherwise be entitled and, therefore, when interpretation is necessary, such enactments are normally construed in favor of the property owner." Cash v. Brookshire United Methodist Church (1988), 61 Ohio App.3d 576, 579, citing, In re Appeal of University Circle, Inc. (1978), 56 Ohio St.2d 180. We agree with the trial court that under Ohio law, uses which are not clearly and expressly prohibited by zoning regulations are permitted since such restrictive regulations must be read in favor of the property owner. See Cash, supra. Upon review of the pertinent zoning ordinances, we find the term "sales" is not restricted to "wholesale". Therefore, since the sale of retail goods is not prohibited, it is permitted under Chapter 1218.03. As such appellee's action constitutes a valid nonconforming use. We hold the trial court properly denied appellant's motion in summary judgment concerning this issue and properly entered judgment for appellee as a matter of law. Appellant's sole assignment of error is not well taken. Affirmed. -8- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing 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. SPELLACY, P.J. and DYKE, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .