[Cite as Marietta v. Washington Cty. Woman's Home Bd. of Trustees , 2020-Ohio-5144.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

THE CITY OF MARIETTA, : Plaintiff-Appellee, : Case No. 19CA23

vs. : BOARD OF TRUSTEES FOR : DECISION & J UDGMENT ENTRY WASHINGTON COUNTY WOMAN’S HOME, et al., :

Defendants-Appellants. :

APPEARANCES: Stephen W. Funk and Emily Anglewic z, Akron, Ohio, for appellant s. Paul G. Bertram, III, Marietta C ity Law Director, Marietta, Ohi o, for appellee.

CIVIL CASE FROM COMMON PLEAS COURT DATE JOURNALIZED: 10-26-20 ABELE, J. {¶ 1} This is an appeal from a Washington County Common Pleas Court s ummary judgment entered in favor of the City of Marietta, plaintiff be low and appellee herein. The Board of Trustees for the Washington County Woman’s Home, Mary Antons , Oriana House, Inc., and James J. Lawrence, defendants be low and appellants herein, assi gn the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN GRANTING THE CITY OF MARIETTA’S MOTION FOR SUMMARY JUDGMENT.”WASHINGTON, 19CA23 2

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY FAILING TO GRANT SUMMARY JUDGMENT IN DEFENDANTS’ FAVOR.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN GRANTING A PERMANENT INJUNCTION.” {¶ 2} For nearly one hundred twenty-three years, the Washington Count y Woman’s Home operated a nonprofit home for eld erly women at 812 Third Street in Marietta, Ohio. During the Woman’s Home’s existence, the City of Marietta enacted zoning o rdinances that placed the property in a zoning district des ignated as a single-family det ached residential district (an R-2 district). After the city enacted its zoning ordinances, the W oman’s Home continued operating as a lawful nonconforming use. {¶ 3} In 2018, the Woman’s Home placed the property for sale. Oriana House, Inc., a nonprofit organization, entered in to a contract to purchase the property. Oriana House took possession of the property with the intent to operate a residen tial treatment facility. {¶ 4} Oriana House representatives c ontacted the city to ask about zo ning permits and later submitted and obtained a “Zoning Use Certification” from the Ma rietta City Engineer. Shortly thereafter, the Southeast Ohio Building Department issued Orian a House a certificate of

occupancy. {¶ 5} City representatives had some back-and-forth discussions with a ppellants regarding Oriana House’s proposed use of the property and the city’s zoni ng ordinances. The city ultimately took the position that Oriana Hous e must seek and obtain a spec ial use permit from the PlanningWASHINGTON, 19CA23 3

Commission in order to operate a r esidential treatment facility on the property. {¶ 6} Oriana House, however, did not a gree. Oriana House believed th at the city’s zoning ordinances did not require it t o obtain anything other than a u se and occupancy permit. {¶ 7} On April 17, 2019, the city filed a complaint against appellant s and requested the court to enjoin appellants from operating a residential treatme nt facility without first obtaining a special use permit. Appellee alleged that, until the middle of 2018, the Woman’s Home served as “a special kind of retirement home, basically a retreat from poverty and want, for elderly women who did not wish to live alone,” and that it offered “a non-ins titutional, pleasant home-like atmosphere for its occupants.” Appellee also asserted that the Woman’s Home is located in an R-2 zoning district and the use of the property as a residentia l facility for elderly women is a nonconforming use. {¶ 8} Appellee alleged that use of the property as a residential trea tment facility constitutes a change in the Woman’s Home’s nonconforming use, not a mere co ntinuation of the Woman’s Home’s nonconforming use. Appell ee thus claimed that, because Oriana House sought to change one nonconforming use to another nonconforming use, the zoning ordinances require Oriana House to obtain a special use permit. {¶ 9} Appellee further alleged that i t notified Oriana House to apply for a special use permit, but Oriana House has not. Appellee thus asserted that the “Washington County Woman’s Home is permitting an unlawful use” and “violating Marietta Cit y zoning codes by allowing Oriana House, Inc. to continue with the ir renovations and plans to ope n a Residential Treatment Facility.” Appellee additionally claimed that Oriana House is violating th e zoning codes by renovating the property in anticipation of opera ting a residential treatment f acility.WASHINGTON, 19CA23 4

{¶ 10} Consequently, appellee requested an injunction to permanently e njoin appellants “from permitting to operate or operating a Residential Treatmen t Facility * * * without first obtaining a ‘Special Use Permit.’” {¶ 11} Appellants simultaneously filed an answer and a motion for summ ary judgment. Appellants asserted that they ha ve obtained all required permit s necessary to operate a residential treatment facility and they need not obtain a special use permi t to lawfully operate a residential treatment facility. In particular, appellants raised two essen tial points to support their argument. {¶ 12} First, appellants alleged that Marietta Codified Ordinances Sec tion 1105.01 permits Oriana House to operate a residential treatment facility as a c ontinuation of the Woman’s Home’s lawful nonconforming use. Appella nts claimed that Section 1105 .01, construed in light of the Ohio Supreme Court’s decision in Akron v. Klein , 171 Ohio St. 207, 168 N.E.2d 564 (1960), gives Oriana House the right to operate a residential treatment facil ity as a continuing lawful nonconforming use. Appellants t hus asserted that Oriana House’ s proposed use of the property as a residential treatment facility merely continues the same l awful nonconforming use of the Woman’s Home’s use as a residential facility for elderly women. Appellants noted that in Klein , the court held: Where a zoning ordinance provides that the lawful use of any la nd or premises existing at the time of its enactment may be continued as a nonconforming use, such ordinance continues the right to use land or premises in a residential-use district in a business of the same kind as, although it does no t represent any continuation or part of, the par ticular business that was being conducted on such land or premises.

Id. at paragraph six of the syllabus. {¶ 13} Appellants asserted t hat Oriana House’s proposed use of the pro perty as a residential treatment facility is the “same kind” of use as the Woman’s Home’s use as a residentialWASHINGTON, 19CA23 5

facility for elderly women. Appellants thus contended that Klein gives it the right to continue using the property as a lawful nonconforming use and that Orian a House need not obtain a special use permit. {¶ 14} Appellants next argued that, ev en if Oriana House’s nonconformi ng use is not the “same kind as” the Woman’s Home’s nonconforming use, then Secti on 1105.03 allows, as a matter of right, the substitution of one nonconforming use for another nonconforming use of the “same classification,” so long as the party requesting the substituti on obtains a use and occupancy permit. Appellants contended th at: (1) Oriana House’s use of the proper ty falls within the same

classification as the Woman’s H ome, and (2) Oriana House obtain ed a use and occupancy permit. Appellants further noted that appellee did not dispute either o f the two foregoing points. {¶ 15} Appellants disagreed w ith appellee that the zoning ordinances r equire Oriana House to obtain a special use permit from the Planning Commission bef ore Oriana House can lawfully operate a residential treatment facility on the property. Appe llants asserted t hat appellee’s

assertion that Oriana House mu st apply for, and obtain, a speci al use permit from the Planning Commission disregards the plain text of the zoning ordinances a nd results from a tortured construction of the zoning ordin ances. Appellants further argu ed that, to the extent that the zoning ordinances are ambiguous, the c ourt must construe them in their favor. {¶ 16} Appellants therefore requested the trial court to conclude that appellants are not violating any zoning ordinances by proceeding with plans to ope rate a residential treatment facility on the property and that appella nts are entitled to judgment as a matter of law. {¶ 17} To support their summary judgmen t motion, appellants submitted the affidavit of James J. Lawrence, the President, Chief Executive Officer, and Executive Director of OrianaWASHINGTON, 19CA23 6

House, Inc. Lawrence stated that Oriana House is a “nonprofit corporation which provides substance abuse treatment programs, community corrections progr ams, and reentry and housing programs throughout Ohio.” He asse rted that Oriana House “oper ates a residential treatment facility at the former Woman’s Home” and that this facility “pr ovides sleeping accommodations

to the residents and does not use more than 25% of the floor ar ea for central office purposes.” {¶ 18} Appellee responded and also filed a cross-motion for summary ju dgment. Appellee agreed with appellants th at the zoning ordinances “per mit[] the substitution of a nonconforming use for another nonc onforming use within the same classification so long as use and occupancy permits are obtained.” Appellee further agreed t hat Oriana House and the

Woman’s Home fall with in the “same classif ication.” Appellee c laimed, however, that appellants’ right to substitute Oriana House’s nonconforming us e for the Woman’s Home’s nonconforming use is contingent upon not only obtaining a use a nd occupancy permit but also upon obtaining a special use permit. {¶ 19} Appellee argued that Section 1113.02( g) requires appellants to obtain a special use permit before Oriana House may substitute its use as a resident ial treatment facility for the Woman’s Home’s use as a residential facility for elderly women. Appellee noted that Section 1113.02(g)(4) governs uses withi n an R-3 district and states: Special Permit Uses. The following uses are not permitted as a right but require special permits granted b y the Planning Commission, whi ch permits shall be issued only when the commissi on is satisfied that the contem plated use is not in conflict with the primary residential use. * * * * (4) Philanthropic or nonprofit institutions with sleeping accom modations, including nursing homes or sanita riums, provided that not more than twenty-five percent of the floor area sha ll be used for central office purp oses. {¶ 20} Appellee alleged that Secti ons 1105.03 and 1135.04 incorporate the SectionWASHINGTON, 19CA23 7

1113.02(g)(4) special-permit require ment and requires a use and occupancy permit when one nonconforming use is changed to another nonconforming use of th e same classification and that Section 1135.04 sets forth the procedure for obtaining a use an d occupancy permit. Appellee pointed out that Section 1135.04 st ates that a use and occupanc y permit is required “[i]n addition to the requirements of any other ordinance.” Appellee contende d that this language plainly shows that “additional permitting may be required in order to change a lawful, nonconforming use.” Appellee thus asserted that the “any other ordinance” language contained in Section 1135.04 incorporates Section 1113.02(g)(4 ) and the requirement to obtai n a special use permit. Appellee concluded that because appella nts did not obtain a special use permit, appellants are operating the residential treatment facility i n violation of the city’s zonin g ordinances. {¶ 21} Appellee did not directly respond to appellants’ assertion that Section 1105.01 permits Oriana House to continue the Woman’s Home’s nonconformi ng use. Instead, appellee’s arguments focused upon its contention that Oriana House’s propo sed use represents a change in the Woman’s Home’s nonconforming use. Appellee did, however, a ssert that Akron v. Klein should not apply here. Appellee claimed that, even though Oria na House’s proposed nonconforming use and the Woman’ s Home’s nonconforming use fall within the same use classification under the city’s o rdinances, the uses of the pro perty are not the “same kind” because “a residential drug treatment facility is not the same ‘kind’ o f use as a home for elderly widows.” Appellee thus asserted that it is entitled to judgment as a mat ter of law. {¶ 22} Appellants responded and asserted that appellee failed to set f orth any evidence to show that Oriana House’s proposed use of the property is not th e “same kind” as the Woman’s Home’s nonconforming use. Appella nts noted that appellee admit ted that both Oriana House andWASHINGTON, 19CA23 8

the Woman’s Home are “nonprofit institutions with sleeping acco mmodations” that provide “not more than twenty-five percent of the floor area” for central of fice purposes. Appellants asserted that appellee did not bring forth any evidence to show that Ori ana House’s proposed use as a “nonprofit institutions with sleeping accommodations” differed from the Woman’s Home’s use as a “nonprofit institutions with sleeping accommodations,” and th at appellee’s conclusory allegations that a residential treatment facility differs from a residential facility for elderly women is not proper Civ.R. 56 evidence. Thus, appellants contended t hat no genuine issues of material

fact remain as to whether Oria na House’s proposed use and the W oman’s Home’s use are the “same kind,” i.e., “nonprofit institutions with sleeping accomm odations.” Appellants argued that, as a matter of law, Oriana Hous e’s proposed use is a continuati on of the Woman’s Home’s nonconforming use. {¶ 23} Appellants further asserted that nothing in the zoning ordinanc es indicates that Oriana House must apply for a special use permit when continuin g a lawful nonconforming use. They observed that appellee did not claim that Oriana House mus t apply for a special use permit if merely continuing a lawfu l nonconforming use. Appellants th us asserted that appellee’s

contention that Oriana House must apply for a special use permi t is baseless. {¶ 24} Appellants alternatively argued t hat, even if Oriana House’s pr oposed nonconforming use of the property represents a change in the Wo man’s Home’s nonconforming use, Section 1105.03 allows one nonconforming use to be substit uted for another nonconforming

use of the same classification once as a matter of right upon o btaining a use and occupancy permit. Appellants noted that appellee ag rees that the Woman’s Home’s n onconforming use and Oriana House’s proposed nonconforming us e are in the same classificati on, and that appellee agrees thatWASHINGTON, 19CA23 9

appellants obtained a use and occupancy permit. Appellants the refore contended that Oriana House obtained all necessary permits. {¶ 25} Appellants, however, disputed a ppellee’s claim that Oriana Hous e also must obtain a special use permit. Appellants argued that the plain terms o f the zoning ordinances show that Oriana House has obtained all required permits, and that the zo ning ordinances do not unambiguously require Oriana House to obtain a special use perm it as appellee asserts. Appellants therefore argued that they are entitled to judgment as a matter of law because they have complied with all per mitting requirements and they did not viol ate the zoning ordinances. {¶ 26} On September 11, 2019, the trial c ourt overruled appellants’ su mmary judgment motion and sustained appellee’s motion. The trial court: (1) d etermined that the express language of the zoning ordinances require s appellants to obtain a specia l use permit in order to operate a residential treatment facility on the property, and (2) rejecte d appellants’ asserti on that their use of the property as a residential treatment facility is the same ki nd of use as the former Woman’s Home, a “multi-family home for el derly women.” The court thus permanently enjoined appellants from operating a residential treatment facility with out first obtaining a special use permit. This appeal followed. {¶ 27} Appellants first and second assi gnments of error challenge the propriety of the trial court’s summary judgment. 1 Appellant’s third assignment of error contends that the trial court

1 We observe that appellants’ brief argues the first and second assignments of error together. While appellate courts may combine assignments of error, the Appellat e Rules require an appellant’s brief to separately argue each assignment of error. App.R. 16(A)(7) (stating that “[t]he appellant shall include in its brief * * * [a]n argument containing the contentions of the appellant with respect to eac h assignment of error presented for review and the reasons in support of the contentions, with citations to the au thorities, statutes, and parts of the record on which appellant relies”); State v. Rife , 4th Dist. Ross No. 11CA3276, 2012-Ohio-3264, 2012 WL 2928546, ¶ 15. We thus would be within our discretion to disregard appellants’ first a nd second assignments of error. See App.R. 12(A)(2) (stating that court may disregard an assignment of error if app ellant fails to separately argue it). We prefer, however,WASHINGTON, 19CA23 10

incorrectly granted appellee’s request for an injunction. Beca use appellants’ three assignments

of error revolve around one basic i ssue of whether the trial co urt correctly construed the zoning

ordinances and because all thre e assignments of error rely upon the same general principles, we

have combined our review of the three assignments of error. {¶ 28} In their first assignment of e rror, appellants contend that the trial court erred by granting appellee summary judgment. In their second assignment of error, appellants argue that the trial court erred by denying their motion for summary judgm ent. In particular, appellants assert that the trial court incorrectly construed the zoning or dinances to conclude that appellants are violating the zoning ordinances by operating, or planning t o operate, a reside ntial treatment facility without obtaining a s pecial use permit. Appellants al lege that the zoning ordinances do not clearly and unambiguously re quire them to obtain a special use permit before they can lawfully operate a residential treatment facility. Appellants thus argu e that the trial court erred by concluding that appellee is entitled to judgment as a matter of law. {¶ 29} In their third assignment of e rror, appellants assert that the trial court improperly granted appellee’s request for a n injunction. Appellants conte nd that the trial court’s decision to grant appellee an injunction i s based upon an erroneous interpr etation of the zoning ordinances.

A

STANDARD OF REVIEW {¶ 30} Initially, we note that appellate courts conduct a de novo revi ew of trial court

to decide cases on their merits rather than procedural technica lities. Barksdale v. Van’s Auto Sales, Inc. , 38 Ohio St.3d 127, 128, 527 N.E.2d 284, 285 (1988) (noting that a “basi c tenet of Ohio jurisprudence [is] that cases should be determined on their merits and not on mere procedural technical ities”). We therefore will review appellants’ first and second assignments of error.WASHINGTON, 19CA23 11

summary judgment decisions. E.g., State ex rel. Novak, L.L.P. v. Ambrose , 156 Ohio St.3d 425, 2019-Ohio-1329, 128 N.E.3d 209, ¶ 8; Pelletier v. Campbell , 153 Ohio St.3d 611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 13; Grafton v. Ohio Edison Co. , 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). Accordingly, an appellate court must ind ependently review the record to determine if summary judgment is appropriate and need not defer to the trial court’s decision. Grafton , 77 Ohio St.3d at 105. {¶ 31} Civ.R. 56(C) provides, in relevant part, as follows: * * * * Summary judgment shall be rendered forthwith if the ple adings, depositions, answers to interrogatories, written admissions, af fidavits, transcripts of evidence, and written stipulations of fact, if any, timely f iled in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipul ation may be considered except as stated in this rule. A summary judgment s hall not be rendered unless it appears from the evidence or stipulation, an d only from the evidence or stipulation, that reas onable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidenc e or stipulation construed most strongly in the party’s favor. {¶ 32} Accordingly, pursuant to Civ.R. 56, a trial court may not award summary judgment unless the evidence demonstrates that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a ma tter of law; and (3) after viewing the evidence most strongly in favor of the nonmoving party, reasona ble minds can come to but one conclusion, and that conclusion is adverse to the nonmoving par ty. Pelletier at ¶ 13; M.H. v. Cuyahoga Falls , 134 Ohio St.3d 65, 2012-Ohio-5336, 979 N.E.2d 1261, ¶ 12; Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). {¶ 33} “As to materiality, the substantive law will identify which fac ts are material.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accordWASHINGTON, 19CA23 12

Byrd v. Smith , 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 12; Turner v. Turner , 67 Ohio St.3d 337, 340, 617 N.E.2d 1123 (1993); Bender v. Logan , 4th Dist. No. 14CA3677, 2016-Ohio-5317, 76 N.E.3d 336, 2016 WL 4208549, ¶ 49.

B

R.C. 713.13 {¶ 34} In the case sub judice, R.C. 713.13 is the starting point for e valuating the parties’ cross-summary judgment motions regarding appellee’s request for an injunction. R.C. 713.13 allows a municipal corporation to seek an injunction to prevent or terminate violations of its zoning ordinances or regulations. The statute provides as follows: No person shall erect, construct, alter, repair, or maintain an y building or structure or use any land in violation of any zoning ordinance or regulation enacted pursuant to sections 713.06 to 713.12, inclusive, of the Revise d Code, or Section 3 of Article XVIII, Ohio Constitution. In the event of any such violation, or imminent threat thereof, the municipal corporation, * * * in ad dition to any other remedies provided by law, may institute a suit for injunction t o prevent or terminate

such violation. {¶ 35} Before a court may grant summary judgment regarding an R.C. 713 .13 injunction, a city must establish that no genuine issues of material fact r emain as to whether “the statutory

conditions exist.” Ackerman v. Tri-City Geriatric & Health Care, Inc. , 55 Ohio St.2d 51, 58, 378 N.E.2d 145 (1978); accord Columbus v. Galli , 10th Dist. Franklin No. 12AP-864, 2013-Ohio-5325, 2013 WL 6406317, ¶ 10. Thus, to be entitled to summary judgment, a city must show that no genuine issues of mat erial fact remain that a pers on erected, constructed, altered,WASHINGTON, 19CA23 13

repaired, or maintained any build ing or structure or used any l and in violation of (or poses an imminent threat of violating) any zoning ordinance or regulatio n. 2 {¶ 36} Conversely, for a property owner to be entitled to summary judg ment regarding a city’s request for an R.C. 713.13 injunction, a property owner must establish that reasonable minds could only conclude that the property owner does not pose an im minent threat of violating the zoning ordinances. {¶ 37} In the case at bar, appellee asserts that appellants are violat ing the zoning ordinances by planning to operate a resid ential treatment facility without obtaining a special use permit from the Planning Commission. Resol ving the issue requires that we ascertain the meaning of the zoning ordinances.

C

INTERPRETATION OF ZONING ORDINANCES {¶ 38} The interpretation of a zoning ordinance raises a question of l aw that appellate courts review independently a nd without deference to the trial court. Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 25; Lang v. Ohio Dept. of Job & Family Servs. , 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636, ¶ 12 (noting that “[a] ques tion of statutory construction presents an issue of law that we determine de novo on appeal”). {¶ 39} Courts that review the meaning of a zoning ordinance apply the “standard rules of

2 We observe that “when a statute grants a specific injunctive r emedy to an individual or to the state, the party requesting the injunction ‘need not aver and show, as und er ordinary rules in equity, that great or irreparable injury is about to be done for which he has no adequate remedy at law * * *.’” Ackerman v. Tri-City Geriatric & Health Care, Inc. , 55 Ohio St.2d 51, 56, 378 N.E.2d 145 (1978), quoting Stephan v. Daniels , 27 Ohio St. 527, 536 (1875).WASHINGTON, 19CA23 14

statutory construction.” Gesler v. Worthington Income Tax Bd. of Appeals , 138 Ohio St.3d 76, 2013-Ohio-4986, 3 N.E.3d 1177, ¶ 12; accord Shampton v. Springboro , 98 Ohio St.3d 457, 2003-Ohio-1913, 786 N.E.2d 883, ¶ 30. A court’s primary goal w hen determining the meaning of a zoning ordinance is to give effect to the enacting body’s intent. State v. Bryant , ––– Ohio St.3d –––, 2020-Ohio-1041, ––– N.E.3d ––––, ¶ 12; Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 29. To determine intent, “we first look to the text of the [ordinance].” State v. Pendergrass , ––– Ohio St.3d –––, 2020-Ohio-3335, ––– N.E.3d ––––, ¶ 5. {¶ 40} When the ordinance’s text clearly and unambiguously reveals int ent, courts must apply the ordinance as written. Wilson v. Lawrence , 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 11; Wingate v. Hordge , 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979), citing

Provident Bank v. Wood , 36 Ohio St.2d 101, 304 N.E.2d 378 (1973). Accordingly, a cou rt’s first step when considering the meaning of an ordinance “is always to determine whether the [ordinance] is ‘plain and unambiguous.’” Jacobson v. Kaforey , 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, ¶ 8, quoting State v. Hurd , 89 Ohio St.3d 616, 618, 734 N.E.2d 365 (2000); see also State ex rel. Cordray v. Midway Motor Sales, Inc. , 122 Ohio St.3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 15, quoting Slingluff v. Weaver , 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the sy llabus (stating that if words us ed in statute or administrative rule “‘be free from ambiguity and doubt, and express plainly, clearl y and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation’”). “‘If [the ordinance] is not ambiguous, then we need not interpret it; we must simply apply it.’” Wilson at ¶ 11, quoting State v. Hairston , 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 13. Whe nWASHINGTON, 19CA23 15

the language used in an ordina nce “‘is plain and unambiguous, a nd conveys a clear and definite meaning, we must rely on what the [legislative body] has said.’ ” Id. , quoting Jones v. Action Coupling & Equip., Inc. , 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, cit ing Symmes Twp. Bd. of Trustees v. Smyth , 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). {¶ 41} Additionally, courts must “give effect only to the words the le gislature used, making neither additions to, nor deletions from, the statutory languag e.” Id. , citing Columbia Gas Transm. Corp. v. Levin , 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19. Fur thermore, “‘[t]he interpretation of statutes and administrative rules sho uld follow the principle that neither is to be construed in any way other than as the words demand.’” State ex rel. Baroni v. Colletti , 130 Ohio St.3d 208, 2011-Ohio-5351, 957 N.E.2d 13, ¶ 18, quoting Morning View Care Ctr.–Fulton v. Ohio Dept. of Human Servs. , 148 Ohio App.3d 518, 2002-Ohio-2878, 774 N.E.2d 300, ¶ 36 (10th Dist.). We also observe that when a legislative “definit ion is available, we construe the words of the statute accordingly.” State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 4, citing R.C. 1.42; accord Stewart v. Vivian , 151 Ohio St.3d 574, 2017-Ohio-7526, 91 N.E.3d 716, ¶ 25. Moreover, R.C. 1.42 specifies that courts reviewing statutes and ordinances must read “[w]ords and phrases * * * in context” and “construe[ them] according to the rules of grammar and common usage.” {¶ 42} When the language of an ordinance is ambiguous, a court may the n consider rules of construction to determine legislative intent. Turner v. Hooks , 152 Ohio St.3d 559, 2018-Ohio-556, 99 N.E.3d 354, ¶ 10 ; Symmes Twp. Bd. of Trustees v. Smyth , 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). “A statute is ambiguous ‘”if a re asonable person can find different meanings in the [ordinance] and if good arguments can be made f or either of two contraryWASHINGTON, 19CA23 16

positions.”’” Turner at ¶ 12, quoting Sunset Estate Properties, L.L.C. v. Lodi , 9th Dist. Medina No. 12CA0023-M, 2013-Ohio-4973, 2013 WL 6021470, ¶ 20, quoting 4522 Kenny Rd., L.L.C., v. Columbus Bd. of Zoning Adjustment , 152 Ohio App.3d 526, 2003-Ohio-1891, 789 N.E.2d 246, ¶ 13 (10th Dist.). {¶ 43} R.C. 1.49 lists several factors that a court may consider when determining the legislative intent of an ambiguous statute. Symmes , 87 Ohio St.3d at 556 (stating that R.C. 1.49 sets forth “specific guideposts for courts to follow when inter preting ambiguous statutes”). The statute provides as follows: If a statute is ambiguous, the court, in determining the intent ion of the legislature, may consid er among other matters: (A) The object sought to be attained; (B) The circumstances under wh ich the statute was enacted; (C) The legislative history; (D) The common law or former statutory provisions, including la ws upon the same or similar subjects; (E) The consequences of a particular construction; (F) The administrative co nstruction of t he statute. {¶ 44} A court that is determining the meaning of an ambiguous statute “may consider laws upon the same or similar subjects in order to determine legisla tive intent.” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health , 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 20, citi ng R.C. 1.49(D). “‘Statu tes relating to the same matter or subjec t, although passed at different times and making no reference to each other, are in pari materia and should be read together to ascertain and effectuate if possible the legislative intent.’” Id. , quoting State ex rel. Pratt v. Weygandt , 164 Ohio St. 463, 132 N.E.2d 191 (1956) , paragraph two of the sylla bus. Additionally, a court that is considering statutes in pari materia “must arrive at a reasonab le construction giving the proper force and effect, if possible, to each statute.” Id. , citing Maxfield v. Brooks , 110 Ohio St. 566,WASHINGTON, 19CA23 17

144 N.E. 725 (1924), paragraph two of the syllabus. {¶ 45} Furthermore, “when applying a zoning provision, a court must no t view the provision in isolation; rather, its ‘meaning should be derived from a reading of the provision taken

in the context of the entire ordinance.’” Cleveland Clinic Found. v. Cleveland Bd. of Zoning Appeals , 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d 1161, ¶ 35, quo ting Univ. Circle, Inc.

v. Cleveland , 56 Ohio St.2d 180, 184, 383 N.E.2d 139, 141 (1978). {¶ 46} We also observe that when interpreting a zoning ordinance, cour ts must strictly construe restrictions on the use of real property in favor of t he property owner. In Terry v. Sperry , 130 Ohio St.3d 125, 2011-Ohio-3364, 956 N.E.2d 276, ¶ 19, the O hio Supreme Cour t explained: Zoning resolutions are in deroga tion of the common law and depr ive a property owner of certain uses of his land to which he would ot herwise be lawfully entitled. Therefore, such resolutions are ordinarily construed in favor of the property owner. Restrictions on the use of real property by or dinance, resolution or statute must be strictly cons trued, and the scope of the res trictions cannot be extended to include limitati ons not clearly prescribed.

Accord Cleveland Clinic Found. at ¶ 34; Univ. Circle, 56 Ohio St.2d at 184. “In other words, [Ohio law] do[es] not permit zoning ‘limitations by implication .’” Cleveland Clinic Found. at ¶ 34, quoting Henley , 90 Ohio St.3d at 152, 735 N.E.2d 433. {¶ 47} In accordance with the foregoing principles, we begin with the text of the city’s zoning ordinances to determine whether, as appellee argues, the language clearly and unambiguously requires Oriana House to obtain a special use per mit from the Planning Commission before it can lawfully operate a residential treatme nt facility on the premises.

D

MARIETTA ZONING ORDINANCESWASHINGTON, 19CA23 18

{¶ 48} The city’s zoning ordinances are contained in Part Eleven, Titl e One of the Codified Ordinance. Section 1101.02 sets forth the zoning code’s genera l compliance requirements. Section 1101.02(b) governs “[e]xis ting [u]ses” and provides: In all districts, after the eff ective date of this Zoning Ordin ance, and except as otherwise provided in Chapter 1105: (1) The existing use of any existing building or other structur e may be continued, changed or extended; and (2) The existing use of any tract of land may be continued, cha nged or enlarged; and (3) Any existing building or other structure may be enlarged, a ltered, converted, reconstructed or relocated, only in accordance with this Zoning Ordinance. {¶ 49} Thus, Chapter 1105 applies when an existing use of existing pro perty is continued, changed, or enlarged. {¶ 50} Chapter 1105 is entitled “Nonconf orming Uses.” Section 1105.01 allows a lawful nonconforming use to be conti nued. The provision reads: Any building or other structure, or any use of a building or ot her structure or land, existing on the effective date of this Zoning Ordinanc e and which complies with zoning ordinances in effect immediately prior to the adopt ion of this Zoning Ordinance, which does not conform with the provisions of this Z oning Ordinance, shall be considered a lawful nonc onforming building, structure or use, and may be continued, except as othe rwise provided herein. Section 1105.03 governs changes to nonconforming uses: Any lawful nonconforming use of a building or land may be chang ed to another nonconforming use of the s ame classification once as a matter of right, provided that before any such change may occur the party desiri ng the same shall obtain a use and occupancy permit pursuant to Section 113[5].04 . Subsequent changes of any lawful nonconforming use of a building or land t o another nonconforming use of the same cl assification shall be permitted only upon theWASHINGTON, 19CA23 19

granting of a special exception by the Planning Commission in t hose instances where the Planning Commission shall find that granting the spec ial exception shall not materially adversely affect the health or safety of persons residing or working in the neighborhood of the propos ed use and shall not be materi ally detrimental to the public welfare or injurious t o property or improvements in such neighborhood. Whenever a nonconforming use of a building or land has been cha nged to a conforming use, such conforming us e shall not thereafter be cha nged to a nonconforming use. As used herein the term “classification” sh all be interpreted to include any use permiss[i]bl e within the appropriate zoning district (see Section 1101.03) and the term “change” sha ll not be interpreted to incl ude any transfer of ownership. Section 1135.04, entitled Use and Occ upancy Permits Required, s tates: In addition to the requirements of any other ordinance, a use a nd occupancy permit shall be required prior to any of the following: * * * * (b) Change in use of any building or structure; * * * * (d) Change in use or extension of a nonconforming use; or (e) Change of ownership of any land or building. No person shall use or occupy any building or other structure o r land until any required use and occupancy pe rmit has been duly issued. * * * * {¶ 51} In the case at bar, the parties agree that the Woman’s Home’s u se of the property as a residential facility is a law ful nonconforming use. The part ies further agree, for purposes of Section 1105.03, that Oriana House’s proposed use of the proper ty as a residential treatment facility falls within the “same classification” as the Woman’s Home’s nonconforming use of the property. In particular, the parties agree that the Woman’s Ho me’s nonconforming use of theWASHINGTON, 19CA23 20

property and Oriana House’s pr oposed nonconforming use of the p roperty fit the use classification set forth in Section 1113.02(g)(4). {¶ 52} Section 1113.02(g)(4) is contained within the use regulations g overning property

located in an R-3 Residential Di strict. The provision states:

(g) Special Permit Uses. The following uses are not permitted as a right but require special permits gra nted by the Planning Commission, which permits shall be issued only when the Commission is satisfied the conte mplated use is not in conflict with the prima ry residential use. * * * * (4) Philanthropic or nonprofit institutions with sleeping accom modations, including nursing homes or sanita riums, provided that not more than twenty-five percent of the floor area sha ll be used for central office purp oses. * * * *. {¶ 53} The parties agree that the Woman’s Home’s nonconforming use and Oriana House’s proposed nonconforming use of the property are “nonprof it institutions with sleeping accommodations” and that “not more than twenty-five percent of the floor area” is dedicated to central office purposes. At th is point, however, the parties’ arguments diverge. {¶ 54} Appellee contends that (1) Section 1105.03 applies because Oria na House’s proposed nonconforming use is a change in the Woman’s Home’s no nconforming use; (2) Section 1105.03 requires Oriana House to obtain a use and occupancy per mit in accordance with Section 1135.04; and (3) Section 1135.04, in t urn, requires Oriana Hous e to obtain a use and occupancy permit and to comply with “the re quirements of any other ordina nce.” Appellee then claims that Section 1113.02(g)(4) is “any other ordinance.” {¶ 55} Appellee recognizes that Section 1113.02(g)(4) applies to uses of property located

in an R-3 residential district and that the Woman’s Home is loc ated in an R-2 residential district. Appellee nevertheless asserts that Section 1113.02(g)(4) applie s because Oriana House is seekingWASHINGTON, 19CA23 21

to change the Woman’s Home’s nonconforming use to a use that re quires the Planning Commission to grant a special use permit. Appellee thus conten ds that the zoning ordinances unambiguously require Oriana H ouse to obtain a special use perm it before it can lawfully operate

a residential treatment facility on the premises. {¶ 56} Appellants, on the other hand, argue that the zoning ordinances do not unambiguously require Oriana H ouse to obtain a special use perm it before it can lawfully operate a residential treatment facility. Appellants first assert that Section 1105.01, not Section 1105.03, applies. Appellants c ontend that Oriana House’s proposed nonco nforming use is a mere continuation of (not a change in) the Woman’s Home’s nonconform ing use. Appellants thus argue that the zoning ordinances do not require Oriana House to obtain a special use permit from the Planning Commission when mer ely continuing a lawful nonconf orming use of the property. {¶ 57} Appellants also contend that Akron v. Klein, supra, mandates this conclusion. Appellants observe that in Klein , the Ohio Supreme Court held: Where a zoning ordinance provides that the lawful use of any la nd or premises existing at the time of its enactment may be continued as a nonconforming use, such ordinance continues the right to use land or premises in a residential-use district in a business of the same kind as, although it does no t represent any continuation or part of, the par ticular business that was being conducted on such land or premises at the time of enactment of such zoning ordina nce. Id. , paragraph six of the syllabus. {¶ 58} Appellants assert that Oriana House’s use is the “same kind” of use as the Woman Home’s use. To support their a ssertion, appella nts cite Sectio n 1113.02(g)(4) and state that both

the Woman’s Home and Oriana H ouse are “[p]hilanthropic or nonpr ofit institutions with sleeping accommodations” and that neither uses “more than twenty-five pe rcent of the floor area * * * for central office purposes.” Appellants claim that because both u ses share the same useWASHINGTON, 19CA23 22

classification under the zoning c ode, then the uses are the “sa me kind.” {¶ 59} Appellants assert that the trial court misconstrued the Klein decision and failed to appreciate the distinction betw een the continuation of a lawful nonconforming use and a change in use. Appellants contend that Oriana House’s proposed noncon forming use simply is a continuation of the Woman’s Home’s nonconforming use as a nonpr ofit institution with sleeping accommodations. Appellants thus claim that the trial court con strued the phrase “same kind as” too narrowly. {¶ 60} Appellants alternativ ely assert that if Section 1105.03 applies , the trial court incorrectly interpreted it and related provisions to determine that Oriana House must obtain a special use permit from the Planning Commission before Oriana H ouse can lawfully operate a residential treatment facility on the property. Appellants arg ue that neither Section 1105.03, nor any of the related provisions, unambiguously requires Oriana Ho use to obtain a special use permit from the Planning Commission. {¶ 61} Appellants agree with appellee that the Woman’s Home’s nonconfo rming use as a residential facility for elderly women and Oriana House’s inten ded nonconforming use as a residential treatment facility fall within the same R-3 zoning district use classifi cation, i.e., Section 1113.02(g)(4), but contend that becau se the Woman’s Home’s use and Oriana House’s intended

use fall within the same cla ssification, Section 1105.03 permit s the change in use as a matter of right. Appellants assert tha t nothing in Section 1105.03, or t he chapter governing nonconforming uses, imposes an additional requirement to obtain a special use permit. Appellants further argue that appellee’s reasoning that they must comply with Section 11 13.02(g)(4) (a zoning regulation governing R-3 uses) is nonsensical when the property at issue i s located in an R-2 district.WASHINGTON, 19CA23 23

{¶ 62} Appellants additionall y note that Section 1105.03 sets forth th e circumstances when a change in a lawful nonconforming use requires a special use p ermit. The second sentence of

Section 1105.03 states: Subsequent changes of any lawful nonconforming use of a buildin g or land to another nonconforming use of the same classification shall b e permitted only upon the granting of a special exception by the Planning Commis sion * * *. {¶ 63} Appellants assert that the ordinance thus means that a special use permit need only be obtained if a change in use is sought after a change in use already occurred once as a matter of right. {¶ 64} Accordingly, to be entitled to summary judgment, the city must establish two points: (1) that Oriana House is seeking to change the Woman’s Home’s n onconforming use to another nonconforming use of the same classification; and (2) that the zoning ordinances unambiguously require Oriana House to obtain a special use permit before it c an lawfully change the Woman’s Home’s nonconforming use as a residential facility for elderly women to a residential treatment facility.

E

NONCONFORMING USE PRINCIPLES {¶ 65} We first note that the parties do not dispute that the Woman’s Home’s use of the property is a lawful nonconforming use. A nonconforming use me ans a use that “was lawful prior to the enactment of a zoning ordinance and which use may be con tinued after the effective date of the ordinance even though it does not comply with the applicabl e use restrictions.” C.D.S., Inc. v. Village of Gates Mills , 26 Ohio St.3d 166, 168, 497 N.E.2d 295 (1986); accord Marietta Zoning Code of Ordinances, Section 1101.01(v) (“‘[n]onconforming build ing, use or lot’ means a lawfulWASHINGTON, 19CA23 24

building, use or lot which, by reason of design, size or use, d oes not conform with the requirement of the district or districts in which it is located as designat ed by this Zoning Ordinance”). The use of land qualifies as a lawful nonc onforming use when: (1) the u se existed before the enactment prohibiting the use, and (2) the use was lawful at the time the use began. Pschesang v. Terrace

Park , 5 Ohio St.3d 47, 448 N.E.2d 1164 (1983), syllabus; Dublin v. Finkes , 83 Ohio App.3d 687, 690, 615 N.E.2d 690 (10th Dist.1992). {¶ 66} In the case at bar, the parties agree that the Woman’s Home’s u se as a residential facility for elderly women existed before the city enacted the zoning ordinances that prohibited the use in the zoning district where the Woman’s Home is located (i .e., an R-2 Residential District). The parties further agree that t he Woman’s Home’s use was lawfu l at the time the use began. Thus, no dispute exists that the Wo man’s Home’s use is a lawful nonconforming use. {¶ 67} Nonconforming uses are not, however , “favorites of the law,” an d they are allowed to exist and continue due to “constitutional prohibitions again st immediate termination of the use.” Aluminum Smelting & Refining Co. v. Denm ark Tp. Zoning Bd. Of Zoning Appeals , 11th Dist. Ashtabula No. 2001-A-0050, 2002-Ohio-6690, 2002 WL 31743011, ¶ 14, citing Kettering v. Lamar Outdoor Advertising, Inc. , 38 Ohio App.3d 16, 17, 525 N.E.2d 836 (1987). Nonconforming uses “may be regulat ed, and even girded to the po int that they wither and die.” Columbus v. Union Cemetery Assn. , 45 Ohio St.2d 47, 49, 341 N.E.2d 298 (1976). {¶ 68} A party nevertheless has a constitutionally protected “right to continue to use one’s property in a lawful business a nd in a manner which does not co nstitute a nuisance and which was

lawful at the time such business was established.” Akron v. Chapman (1953), 160 Ohio St. 382, 52 O.O. 242, 116 N.E.2d 697, paragraph two of the syllabus. “A n existing use is said to be theWASHINGTON, 19CA23 25

subject of a vested right in the user. As such, to prohibit su ch use by enforcing subsequently enacted zoning ordinances would amount to the taking of the use r’s property without due process

of law.” C.D.S., Inc. , 26 Ohio St.3d at 169, fn. 2 ( citations omitted). {¶ 69} Additionally, when “a zoning ordi nance provides that the lawful use of any land or premises existing at the time of its enactment may be continued as a nonconforming use, such ordinance continues the right to use land or premises in a resi dential use district in a business of the same kind as, although it doe s not represent any continuati on or part of, the particular business that was being conducted on such land or premises at the time o f enactment of such zoning

ordinance.” Klein , 171 Ohio St. at 216. {¶ 70} Moreover, “[w]here a zoning resolution provides that an existin g and nonconforming use may be continued but contains no provision as to a permit therefor, it is not necessary as a condition precedent to such continuance to secur e from the zoning authorities such a permit.” State v. Pierce , 164 Ohio St. 482, 132 N.E.2d 102 (1956), paragraph one of the syllabus. “In other words, where a use exists at the time a zo ning resolution or ordinance takes effect, which makes such use nonconforming and does not provide for an application to continue such use, such use may be conti nued under the terms of the ordi nance or resolution, and a permit

to continue such nonconformin g use is not required.” Id. at 487 (citations omitted). {¶ 71} We further observe that “[a] change in the ownership or tenancy of a nonconforming business or structure generally does not affect the right to co ntinue the nonconforming use because the right attaches to the land itself.” Beth Jacob Congregation v. City of Huber Hts. Bd. of Zoning Appeals , 2nd Dist. Montgomery No. 16650, 1998 WL 125568, *4 (citations omitted); accord Herres v. Harrison Twp. Bd. of Trustees , 2nd Dist. Montgomery No. 23668, 2010-Ohio-3909,WASHINGTON, 19CA23 26

2010 WL 3292047, ¶ 17 (stating that “a legal nonconforming use passes to successive owners”); see also Eitnier v. Kreitz Corp. , 404 Pa. 406, 172 A.2d 320, 323 (1961) (holding that “[t]he ri ght to continue the nonconforming use, once established and not aba ndoned, runs with the land and this right is not confined to any one individual or corporation . A vested right, unless abandoned, to continue the nonconforming use is in the land”); Edward H. Z iegler, Jr., 4 Rathkopf’s The Law of Zoning and Planning, Section 72:20 (4th ed.2003) (recognizin g the right to continue a nonconforming use as an attribute of land ownership exercisable by a property purchaser); Kenneth H. Young, Anderson’s American Law of Zoning, Section 6:40 (4th ed.1996) (“The right [to maintain a nonconforming use] attaches to the land itself * * * * [and] can be exercised equally by the purchaser.”). “An established nonconforming use runs with the land, and hence a change in ownership will not destroy the right to continue the use.” 8A Eugene McQuillin, The Law of Mun. Corp. § 25.188, at 59 (3d ed. 2018). “However, generally speaking, the character of the nonconforming use must be the same for the change in ownership not to effect a valid nonconforming use.” Id. Zoning ordinances may, however, limit the “future expansion” of a lawful nonconforming use or the “ future addition, extension or substitution of buildings” that house lawful nonconforming uses. Chapman, supra, paragraph one of the syllabus. Thus, courts have upheld “the denial of the ri ght [1] to extend or enlarge a n existing nonconforming use,” “[2] to substitute new buildings for those devoted to an existing no nconforming use and [3] to add or extend such buildings.” Id. at 386-387 (cita tions omitted). {¶ 72} R.C. 713.15 codifies the protections afforded nonconforming use s. The statute provides as follows: The lawful use of any dwelling, building, or structure and of a ny land orWASHINGTON, 19CA23 27

premises, as existing and lawful at the time of enacting a zoni ng 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 di scontinued 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 Cod e. The legislative authority of a municipal corpora tion shall provide in any zonin g ordinance for the completion, restoration, recons truction, extension, or substitu tion of nonconforming uses upon such reasonable terms as are set forth in the zoning

ordinance.

F

SECTION 1105.03 {¶ 73} In the case at bar, appellee a sserts that Section 1105.03 conta ins reasonable terms that set forth the procedure for Oriana House to substitute the Woman’s Home’s nonconforming use of the property for anothe r nonconforming use of the same c lassification. Appellee argues that Section 1105.03, when read in conjunction with Sections 11 34.05 and 1113.02(g)(4), unambiguously requires Oriana House to obtain a special use per mit in addition to a use and occupancy permit. {¶ 74} We again note that Section 1105.03 states: Any lawful nonconforming use of a building or land may be chang ed to another nonconforming use of the s ame classification once as a matter of right,WASHINGTON, 19CA23 28

provided that before any such change may occur the party desiri ng the same shall obtain a use and occupancy permit pursuant to Section 113[5].04 . * * * * As used

herein the term “classification” shall be interpreted to includ e any use permiss[i]ble within the appropriate zoning district (see Section 1101.03) an d the term “change” shall not be interpreted to incl ude any transfer of ownership. {¶ 75} Additionally, Section 1135.04, entitled Use and Occupancy Permi ts Required,

states: In addition to the requirements of any other ordinance, a use a nd occupancy permit shall be required prior to any of the following: * * * * (b) Change in use of any building or structure; * * * * (d) Change in use or extension of a nonconforming use; or (e) Change of ownership of any land or building. No person shall use or occupy any building or other structure o r land until any required use and occupancy pe rmit has been duly issued. * * * * {¶ 76} Appellee argues that the phrase “[i]n addition to the requireme nts of any other ordinance” unambiguously incorporates Section 1113.02(g)(4) and the requirement that Oriana House obtain a special use permit from the Planning Commission. We, however, do not agree with appellee that the phrase “[ i]n addition to the requirement s of any other ordinance” unambiguously means that Oriana House must comply with the spec ial-use permit requirement before it can lawfully operate a residential treatment center o n the property. We nevertheless

conclude that Section 1105.03 lead s to this same conclusion. {¶ 77} Section 1105.03 defines the term “classification” to mean “any use permiss[i]ble within the appropriate zoning d istrict (see Section 1101.03).” Inserting this definition into the text of Section 1105.03 suggests that Section 1105.03 means tha t “[a]ny lawful nonconformingWASHINGTON, 19CA23 29

use of a building or land may be changed to another nonconformi ng use of the same [use permiss[i]ble within the appropriate zoning district (see Secti on 1101.03)] once as a matter of right.” It also could mean, however, “[a]ny lawful nonconformi ng use of a building or land may be changed to another nonconfor ming use of [any use permiss[i]b le within the appropriate zoning district (see Section 1101.03)] on ce as a matter of right.” Fo r purposes of our decision, however,

either definition suffices. {¶ 78} In the case at bar, the parties agree that the Woman’s Home’s n onconforming use of the property fits the use c lassification under Section 1113. 02(g)(4) and that Section 1113.02(g)(4) is contained within the zoning ordinance governin g uses in an R-3 zoning district. Thus, under Section 1105.03's defi nition of “classification,” t he “appropriate zoning district” is an R-3 zoning district. See generally Tausch v. Parker , 217 N.Y.S.2d 953, 956 (Sup. Ct.1961), citing Rathkopf—The Law of Zoning and Planning, Third Edition, Vol. 2, page 58–24 (stating that “[t]he

words ‘same classification’ have been held to mean another use specified as a permitted use in the

district in which the nonconformin g use is a permitted use”). {¶ 79} Section 1105.03 therefore permits t he Woman’s Home’s lawful non conforming use to be changed to anot her nonconforming use of the “same classif ication,” i.e., either the same use permitted in an R-3 General Residential District or any use per mitted in an R-3 General Residential

District. {¶ 80} Section 1113.02 sets forth the uses that are allowed in an R-3 district and states as

follows: A building may be erected, altered or used, and a lot may be us ed or occupied only for the following purposes in any “R-3" Residenti al District: (a) A use permitted in an “R-2" Residential District. (b) Single-family semidetached dwellings.WASHINGTON, 19CA23 30

(c) Two-family detached dwellings. (d) Town houses (also known as row houses and which consist of three or more completely separate single-family dwelling units having co mmon walls joining them into one structural unit), not to exceed six dwell ings per structural unit. (e) Multiple-family dwelli ngs and apartment houses. (f) Accessory uses. (g) Special Permit Uses. The following uses are not permitted as a right but require special permits gra nted by the Planning Commission, which permits shall be issued only when the Commission is satisfied the conte mplated use is not in conflict with the prima ry residential use. (1) Health Centers. (2) Medical offices or group med ical centers, including the pra ctice of dentistry, osteopathy, podiatry, psychology or chiropody, limit ed to a location below the level of the first story ceiling, except that in mult iple family dwellings such uses may be located on the second floor, if separate acces s to the outside is provided. (3) Nonprofit or voluntary hospita ls or related hospital facili ties including animal hospitals. (4) Philanthropic or nonprofit institutions with sleeping accom modations, including nursing homes or sanita riums, provided that not more than twenty-five percent of the floor area sha ll be used for central office purp oses. (5) Proprietary nursing homes or sanitariums. (6) Residential facilities for the mentally retarded or develop mentally disabled as licensed by the State of Ohio.

{¶ 81} In the case at bar, the parties agree that Oriana House’s propo sed nonconforming

use falls within the same R-3 use classification as the Woman’s Home’s nonconforming use, i.e., Section 1113.02(g)(4). Section 1113.02(g)(4) allows property t o be used as a “[p]hilanthropic or nonprofit institution[] with sleeping accommodations” in an R-3 zoning district, but only if the Planning Commission grants a special use permit. Thus, althoug h Oriana House’s proposed use is a permissible use in an R-3 zoning district, it is permissib le only if the Planning Commission grants a special use permit. {¶ 82} We again point out that Section 1105.03 permits one nonconformi ng use to be changed to another nonconforming use of the same “classificatio n” and that “classification” meansWASHINGTON, 19CA23 31

the same use or any use that is permissible in the appropriate zoning district. Section 1105.03

therefore allows Oriana House to change the Woman’s Home’s nonc onforming use of the property to the same or another use permitted in an R-3 residential dist rict. A nonprofit institution with sleeping accommodations is a permissible use within an R-3 resi dential district so long as the Planning Commission approves a special use permit. {¶ 83} Oriana House’s proposed use as a “[p]hilanthropic or nonprofit institution[] with sleeping accommodations” thus is a permissible use in an R-3 zo ning district (i.e., the same

classification as the Woman’s Home’s nonconforming use), but on ly if the Planning Commission grants a special use permit. {¶ 84} Appellants, however, assert tha t requiring Oriana House to obta in a special use permit before changing the Woma n’s Home’s nonconforming use con flicts with the language in Section 1105.03 that permits a nonconforming use to be changed to another nonconforming use of

the same classification “once as a matter of right.” Appellant s thus contend that the language “once as a matter of right” means that Oriana House can change the Woman’s Home’s nonconforming use of the propert y to another nonconforming use within the same classification without any requirement to obt ain a special use permit. {¶ 85} Section 1113.02(g) plainly states th at certain uses in an R-3 z oning district are not granted as a matter of right. Oriana House’s proposed change f rom a residential facility for elderly women to a residential treatment facility, while both i n the same classification, is one of the uses that Section 1113.02(g) s tates is not allowed as a mat ter of right in an R-3 zoning district. Thus, although Section 1113.02(g)(4 ) allows the use, it does no t allow the use as a matter of right. Instead, it allows the use only if the Planning Commission gran ts a special use permit.WASHINGTON, 19CA23 32

{¶ 86} Appellants also allege that the zoning ordinances are unclear a nd do not unambiguously indicate that Section 1113.02(g)(4) requires Oria na House to obtain a special use permit from the Planning Commission before it can lawfully oper ate a residential treatment facility on the property. Appellants contend that because the ordinance s are ambiguous, we must construe them in favor or permitting Oriana House’s use. We do not agre e. However, even if we agreed that the zoning ordinances are ambiguous, the rules of construc tion allow us to consider, among other matters, the object that the zoning ordinances seek to at tain. R.C. 1.49(A). As we indicated earlier, nonconforming uses are not favored, and the intent of zoning ordinances “is to eliminate such nonconforming uses as rapidly as possible.” Kettering v. Lamar Outdoor Advertising, Inc. , 38 Ohio App.3d 16, 18, 525 N.E.2d 836 (2d Dist.1987). Thus, “‘ local governments may prohibit

the substantial alte ration of a non[-]conforming use in an atte mpt to eliminate the use or, indeed, regulate the use to the point that it withers and dies.’” Key Ads, Inc. v. Dayton Bd. of Zoning Appeals , 2nd Dist. No. 26148, 2014-Ohio-4961, 23 N.E.3d 266, 2014 WL 5 794546, ¶ 19, quoting Gem City Metal Spinning Co. , 2d Dist. Montgomery No. 22083, 2008-Ohio-181, 2008 WL 185535, ¶ 26. {¶ 87} In the case sub judice, assuming, arguendo, that the city’s zon ing ordinances are ambiguous, we construe them to m ean that they are intended to e liminate nonconforming uses as quickly as possible and to prohibit substantial changes to an e xisting nonconforming use. Section 1105.03 allows a nonconforming use to be changed to another non conforming use within the same

classification. The definition of “classification” further ind icates that Section 1105.03 allows a nonconforming use to be changed t o another (or the same) noncon forming use that is permitted in the zoning district that defin es the existing nonconforming use . Section 1105.03 thus requires aWASHINGTON, 19CA23 33

party that wishes to change a nonconforming use to another nonc onforming use to consult the use regulations governing the zoning classification of the existing nonconforming use to determine whether the change is permitted. {¶ 88} As applied in the case at bar , Section 1113.02(g)(4) classifies the Woman’s Home’s nonconforming use of the property as an R-3 Residential Distric t use that is permitted if the Planning Commission grants a special use permit. Section 1113. 02 thus contains the uses to which Oriana House may change t he Woman’s Home’s nonconforming use. We previously noted that Section 1113.02(g)(4) permits Oriana House’s proposed nonc onforming use so long as Oriana House obtains a special use per mit from the Planning Commission

. {¶ 89} To the extent that this conclusion does not appear to flow from the language of the ordinances, we believe that th e intent of Section 1105.03 is to ensure that any change to an existing nonconforming use are insignificant and to eliminate the noncon forming use as quickly as possible. To this end, Section 1105.03 permits changes to anot her nonconforming use of the

“same classification.” {¶ 90} Section 1113.02(g)(4), in turn, is the “same classification” an d defines Oriana House’s proposed change-in- nonconforming-use. Section 1113.02( g)(4) allows the use so long as the Planning Commission approve s. The intent of requiring t he Planning Commission’s approval is to ensure that a ny changes to the Section 1113.02(g )(4) use are insignificant. {¶ 91} Consequently, we do not agree w ith appellants that the trial co urt incorrectly interpreted Section 1105.03 as it applies to a change in the no nconforming use of property classified as a Section 1113.02(g)(4) use. We do not believe, however, that appellee satisfied its summary judgment burden to demonstrate the absence of a materia l fact as to whether OrianaWASHINGTON, 19CA23 34

House’s proposed nonconforming us e of the property is, indeed, a change in the Woman’s Home’s nonconforming use of the property. Instead, as we explain infr a, we believe that genuine issues

of material fact remain as to whether Oriana House’s proposed n onconforming use of the property is a change in, or a continuati on of, the Woman’s Home’s noncon forming use of the property. As such, appellee did not sustain its burden to show that reasonab le minds could only conclude that appellants are violating the zoning ordinances by operating or planning to operate a residential treatment facility on the property without obtaining a special use permit from the Planning

Commission.

G

CHANGE OR CONTINUATION IN USE {¶ 92} We note that appellee has not argued that a mere continuation i n a nonconforming

use under Section 1105.01 would re quire Oriana House to obtain a special use permit. Instead, appellee’s assertion t hat Oriana House must obtain a special us e permit hinges upon its claim that Section 1105.03 applies. We theref ore must determine whether S ection 1105.01 or 1105.03 applies, i.e., whether Oriana H ouse’s proposed use of the prope rty is a continuation of, or a change in, the Woman’s Home’s nonconforming use. To resolve this issu e, we must ascertain the meaning of the terms “con tinue,” “change,” and “use.” {¶ 93} The city’s zoning regulations do not define the terms “continue ,” “change,” or “use.” Section 101.03 states that “[w]ords and phrases shall b e read in context and construed according to the rules of grammar and common usage.” Marietta Cod. Ord. 101.03(a). We therefore start by considering the common, everyday meaning of the words. Marietta v. Bd. of Commrs. of Washington Cty. , 4th Dist. Washington No. 19CA1, 2019-Ohio-3883, 2019 WLWASHINGTON, 19CA23 35

4701861, ¶ 16, citing Gamble v. Dobrosky , 89 Ohio St.3d 257, 259, 730 N.E.2d 969 (2000) (concluding that Merriam-Webste r’s Collegiate Dictionary contai ns “the ordinarily accepted meaning” of term in administra tive code); Antonin Scalia & Brya n A. Garner, Reading Law: The Interpretation of Legal Texts, A ppendix A, A Note on the Use of Dictionaries, at 419, 423 (2012) (identifying the up-to-date vers ion of Merriam-Webster’s Colleg iate Dictionary as one of the contemporaneous-usage dictionaries that are “the most useful an d authoritative for the English language generally and for law”). {¶ 94} In general, the term “continue” means “to maintain without inte rruption a condition, course, or action”; “to remain in existence.” Merriam-Webster, https : // www . merriam – webster . com / dictionary / continue (accessed Sept. 1, 2020). {¶ 95} The term “change,” when used as a verb, typically means “to mak e different in some particular”; “to make radically different”; “to replace with an other.” Merriam-Webster, https : / / www . merriam – webster . com / dictionary / change (accessed S ept. 1, 2020); accord Black’s at 231 (defining “change” to mean, in part to “[a]lter; cause to p ass from one place to another; exchange; make different in som e particular; put one thing in p lace of another; vacate”). {¶ 96} “The dictionary definition of the verb ‘use’ is ‘to put into ac tion or service * * *

EMPLOY.’” State ex rel. Byington Builders, Ltd. v. Indus. Commission of Ohio , 156 Ohio St.3d 35, 2018-Ohio-5086, 123 N.E.3d 908, ¶ 24, quoting Webster’s Thi rd New International Dictionary 2523 (2002). When the term is used as a noun, it means “the ac t or practice of employing something” or “the fact or state of being used.” Merriam-Webst er, https : / / www . merriam – webster . com / dictionary / use (accessed Sept. 1, 2020). {¶ 97} We additionally observe that the city’s zoning ordinances defin e the various usesWASHINGTON, 19CA23 36

permitted in the defined zoning districts. We again note that the parties agree that Oriana House’s proposed nonconforming use and th e Woman’s Home’s nonconforming use fit the same use classification, i.e., nonprofit institutions with sleeping acco mmodations. The parties do not agree, however, whether Oriana House’s use of the property–even though falling in the same use

classification as the Woman’s Home’s use (i.e., Section 1113.02 (g)(4)) - is a continuation of the Woman’s Home’s nonconforming use or is a change in the Woman’s Home’s nonconforming use. {¶ 98} Applying the common, everyday meaning of “continue” suggests th at Oriana House’s use of the property con tinues the Woman’s Home’s use of the property if Oriana House maintains the nonconforming use “w ithout interruption” or if th e nonconforming use “remain[s] in existence.” In contrast, applying the common, everyday mean ing of “change” would mean that Oriana House’s use of the property changes the Woman’s Home’s u se of the property if Oriana House’s use is “different in some particular,” is “radically di fferent,” or “replace[s] * * * another”

use. {¶ 99} Appellants argue that because both uses fall within the same us e classification, i.e., nonprofit institutions with sleeping accommodations, then a cha nge in nonconforming use has not occurred. Appellee, on the other hand, asserts that, even thou gh both uses fall within the same use classification, Oriana House’ s proposed use as a residentia l treatment facility is markedly different from a residential facility for elderly women. Appel lee claims that inherent differences exists between a residential treatment facility and a residenti al facility for elderly women. Appellee thus alleges that Orian a House’s use of the property w ould be a change in the Woman’s Home’s nonconforming use. {¶ 100} Determining whether a nonconformin g use is being continued or c hangedWASHINGTON, 19CA23 37

ordinarily requires an examinati on of the facts and circumstanc es involved in each case. See generally Mack and Pearlman, Ohio Planning and Zoning Law, Section 7:6 (2 020 ed.) (reviewing facts of various cases to explai n when courts typically conclud e that a nonconforming use has been changed to another nonconforming use). In general, a change in use does not occur when a “proposed use is sufficiently similar to the current use” and w hen the change has “no greater impact than the use it replaces.” Id. ; accord State v. Wagner , 81 N.J.Super. 206, 210, 195 A.2d 224, 226 (N.J.Co.1963) (citations omitted) (st ating that “[i]n order to retain the protection of the law, the use must retain substantially the same character and the same k ind of use to which the premises were put at the time of the adop tion of the zoning ordinance”). Compare 8A McQuillin Mun. Corp, Section 25:282 (footnotes omitted) (stating that “[a] non conforming use may not be deemed changed if the new use falls with in the same division of the us e classification. To illustrate, a motion picture show, a theater, a boat livery * * * may all be within the same use class, and a

transfer from one to another w ithin the subdivision does not co nstitute a prohibited change of a nonconforming use”). Relevant factors that courts may consider include: (1) “whether there is a difference in the quality or cha racter of the use”; (2) “whethe r the current use is different in kind in its effect upon the surrounding area”; and (3) whether the “ premises are adapted only for a particular use.” 8A McQuillin Mun. Corp, Section 25:281 (3 rd Ed.) (footnotes omitted); Zachs v. Zoning Board of Appeals , 218 Conn. 324, 332, 589 A.2d 351 (1991) (“[i]n deciding wheth er the current activity is within the scope of a nonconforming use con sideration should be given to three factors: (1) the extent to which the current use reflects the n ature and purpose of the original use; (2) any differences in the character, nature and kind of use in volved; and (3) any substantial difference in effect upon the neighborhood resulting from diffe rences in the activities conductedWASHINGTON, 19CA23 38

on the property.”). {¶ 101} For example, in Akron v. Klein the court determined t hat the nonconforming use as a junkyard did not change when a new owner purchased the pro perty and started his own junkyard business. In Klein , the city filed a complaint against the property owner for ope rating a junkyard in an area zoned for residential use. The property ow ner responded that his operation of the junkyard was a lawful nonconforming use. The evidence show ed that the previous owner used the property as a junkyard for several years before the ci ty enacted zoning ordinances to prohibit the activity. Klein la ter purchased the property and started his own junkyard business on the property. The city argued that the nonconforming use as a junkyard terminated when the previous owner discontinued his junkyard business and sold the property. {¶ 102} The Ohio Supreme Court recognized that Klein did not acquire an y part of the previous owner’s junk yard business. The court thus considered “whether it is the use of [the property] in the junk-yard business or only [the property’s] us e in the [previous owner’s] junkyard business that can be continued as a nonconforming use.” Id. at 216. To resolve the question, the court looked to the l anguage of the zoning ordina nce: “‘Section A. The Lawful use of any dwelling, building or struc ture and of any land or premises, as existing and lawful at the time of the passage of this ordinance, may be continued * * * Section G. No building or premises where a nonconforming use i s voluntarily discontinued for two years or more or superseded by a use permitted in the use district in which it is l ocated, shall again be devoted to any use prohibited in such use district.’”

Id. at 216, quoting Akron Zoning Ordinances. {¶ 103} The court determined that when “a zoning ordinance provides tha t the lawful use of any land or premises existing at the time of its enactment m ay be continued as a nonconformingWASHINGTON, 19CA23 39

use, such ordinance continues th e right to use land or premises in a residential use district in a business of the same kind as, a lthough it does not represent an y continuation or part of, the particular business that was being conducted on such land or pr emises at the time of enactment of such zoning ordinance.” Id. at 216. {¶ 104} In a footnote, the court indicated that its holding is intended to clarify Akron v. Chapman, supra, “that it is perhaps only ‘the rig ht to continue to use one’s pr operty in a lawful

business * * * lawful at the time such business was established’ that is the right protected by the

Constitution.” Id. at fn. 5 (emphasis sic). Thus, Klein clarified that the right protected under the Constitution is not simply the right of a property owner to con tinue the identical nonconforming business, but instead, the righ t is to continue the nonconformi ng use of the land for a business of

“the same kind.” {¶ 105} In the case at bar, the trial court determined that Klein does not apply because Oriana House is not seeking to c ontinue the use of the property as a residential facility for elderly women. The court, instead, conclu ded that Oriana House’s resid ential treatment facility would be a change in the Woman’s Hom e’s nonconforming use as a reside ntial facility for elderly women,

not a continuation of the Woman’s Home’s use. The court explai ned that Oriana House has a “unique identity” as a residential treatment facility and that its proposed use is not the same as the Woman’s Home’s use as a “multi-family home for elderly women.” The court determined that the constitutional guarantee set forth in Klein is the right to continue the identical type of business on the premises at the time the nonconforming use was establish ed, and that the same constitutional guarantee does not extend to a succeeding use that differs in a ny manner from the previous nonconforming use. The court reasoned that Klein permits one junkyard to be continued toWASHINGTON, 19CA23 40

another junkyard, but that it does not permit one type of resid ential facility to be continued to another type of residential facility. More recent cases, howev er, have not interpreted Klein so narrowly. {¶ 106} For example, in Deerfield Twp. v. Deerfield Raceway, LLC , 11 th Dist. Portage No. 2007-P-0060, 2008-Ohio-4047, 2008 WL 3270951, the court determi ned that the addition of stock car racing to a previously-existing raceway did not change the nonconforming use of the property.

In Deerfield , the property owners primarily used the raceway to race midget cars. Other vehicles, including all-terrain vehicles and motorcycles, also raced at t he track. In 2003, new owners added “kid cart” and stock car racing. The township later filed a la wsuit to clarify whether the addition of these types of vehicles dest royed the property’s lawful nonc onforming use as a raceway. The trial court, however, did not agree that the change in the type of vehicles affected the property’s status as a lawful nonconforming use. {¶ 107} The appellate court affirmed the decision and concluded that “t he racing of stock cars does not constitute an expansion or substantial alteration of the use of the property from its prior use as a track for racking midget and/or micro cars.” Id. at ¶ 31. The court noted that “the basic differences between stock cars and midget and micro midge ts are the types of engines and frames used” and “are largely irrelevant to the use of the prop erty as a race track.” Id. at ¶ 33. The court additionally observed that because “stock cars are ‘s lower, quieter, safer, and create less dust,’ than the midget classes,” the “racing of stock cars is n ot any less in conformity ‘with the character and use of the [reside ntial] district * * * than the existing nonconforming use,’ i.e. micro midget car racing.” Id. at ¶ 34, quoting Magistrate’s Decision. {¶ 108} In Copeland v. Hiram Twp. , 11 th Dist. Portage No. 2017-P-044, 2018-Ohio-5182,WASHINGTON, 19CA23 41

2018 WL 6722949, the court determined that adding ultra-light a ircraft and hang gliders to the preexisting nonconforming use of property as an airport did not change the nature of the use of the property. The court noted that the addition of certain types o f aircraft did not displace one activity for another and that “the propert y’s use as an airport remained unchanged.” Id. at ¶ 49. {¶ 109} In Hunziker v. Grande , 8 Ohio App.3d 87, 456 N.E.2d 516 (8 th Dist. 1982), the court determined that “[a]n incr ease in the volume of business alone does not constitute an unlawful extension of a nonconforming use where the nature of t he land is virtually unchanged.”

Id. at 89. In that case, the property had been used as a wholesal e and retail nursery before the city enacted zoning regulations to place the property in a one-famil y residential district. The city filed a complaint for injunctive relief to prohibit the owners from o perating a nursery due to an “increase in the proportion of retail sale s as opposed to wholesale sales .” Id. The trial court denied the request for an injunction, the a ppellate court affirmed the dec ision. The court noted that the property owners did not increase the area of land used as a nur sery and had not made any substantial changes to the natur e of the use of the property. The court recognized that the city “may prohibit the expansion or s ubstantial alteration or repair of existing building in attempting to eradicate the nonconforming use.” Id. at 89. The court explained, however, that the city “may not seek to prohibit a mere increase in the volume of business or in the proportions of that

business.” Id. at 89. The court thus affirmed t he trial court’s decision tha t denied the city’s request for an injunction. {¶ 110} In Stewart v. Pedigo , 2 Ohio App.2d 53, 206 N.E.2d 429 (9 th Dist. 1965), the court determined that changing the use of the property “from the disp lay of motor-driven garden and

lawn tools to that of motor-dri ven vehicles for transportation” did not violate the township’s zoningWASHINGTON, 19CA23 42

ordinance. Id. at 56. In Stewart , the property had been used to disp lay garden tractors and law n mowers, but later was used to display motor vehicles. The town ship alleged the use violated the township’s nonconforming use ordinance. The ordinance stated: Whenever the use of any dwelling, building or structure and any land or premises becomes nonconforming through an amendment of this res olution, such use may continue and if no structural alterations are made, it may be changed to another nonconforming us e of the same or a m ore restricted clas sification. {¶ 111} The court found that the display of motor vehicles did not subs tantially change the nature of the property’s use when it did not have any negative effects on traffic and was not “offensive in any way by reason of noise, smoke, or other matte r.” Id. at 56. The court thus concluded that switching the type of inventory displayed on the property from motorized lawn equipment to motor vehicles di d not constitute a substantial ch ange in the property’s nonconforming use. {¶ 112} In Bowling Green v. Violet , 6 th Dist. Wood No. 85-CR-B-311, 1986 WL 2682 (Feb. 28, 1986), the court held that the addition of two tenant s to a building that had housed four tenants did not constitute a change in the nonconforming use of the property as housing for unrelated persons. In Violet , before the city enacted zoning ordinances to prohibit the pro perty from housing unrelated persons, the property was used to house four unrelated individuals. After the city enacted the zoning ord inances, six unrelated individua ls lived on the property. The parties agreed that the occupancy by four unrelated persons was a legal nonconforming use, but disputed

whether the addition of two unrelated individuals constituted a change in the nonconforming use. The city asserted that the addition of the two unrelated indivi duals violated the zoning ordinance that prohibited the change or expansion of a nonconforming use. {¶ 113} The trial court concluded that t he city’s ordinance did not pro hibit an increase inWASHINGTON, 19CA23 43

the volume or magnitude of the building’s nonconforming use. I nstead, the ordinance regulated changes to the nonconforming use. The court thus determined th at an increase in the number of

unrelated individuals did not cons titute a chang e in the noncon forming use. The court observed: Legal writers have uniformly r ecognized the distinction between a prohibited change or extension of a nonconforming use and a per missible expansion or intensification of that use. “An increase in the volume of a trade or business conducted as a nonconforming use or other intensi fication of the use is genera lly held to be permissible so long as the basic nature and character of the us e is unchanged from that which existed at the time the use or structure became nonc onforming.” 4 Rathkopf, The Law of Zoning and Planning (4 Ed. 1985), 51-86, S ection 51.07.

Violet at *4.

{¶ 114} The appellate court affirmed and adopted the trial court’s deci sion as its own. In reaching its decision, the Violet court relied upon a New Jersey case, New Jersey v. Wagner , 195 A.2d 224 (1963), in which the cour t determined that the propert y owner did not substantially change the nonconforming use of the property as a rental unit b y increasing the number of tenants. The court also held that the pr operty owner’s increase in the n umber of tenants did not require that the property owner comply with the township’s current zoning re gulations that required a special use permit for “boarding houses.” {¶ 115} The property in Wagner consisted of one house divide d into two apartments. The original property owner lived i n one apartment and rented the o ther. The township later enacted zoning ordinances that placed the property in a single-family r esidential district. {¶ 116} At some point, the property sold and the new owner, Wagner, ren ted one apartment

to twelve female students who a ttended a nearby college. The t ownship charged that Wagner violated a zoning ordinance that prohibited the property from b eing used as a boarding house without a special permit. The par ties agreed that, before Wagn er purchased the property, the useWASHINGTON, 19CA23 44

of the premises to house unrelated person was a nonconforming u se and that the zoning ordinances did not affect the nonconforming us e “so long as the use was no t changed or ext ended beyond the limits prescribed by the ordinance itself.” Id. at 209. {¶ 117} The ordinance in Wagner stated: (j) Non-Conforming Uses. 1. Continuation Thereof: All buildings, structures and the uses not conforming to the re gulations of the district in which they are located, at the time of this ena ctment, shall be known and regarded as “non-conforming”. A non-conforming building or use may be continued and may be ch anged to another non-conforming use of the same or a more restricted classification, but no additions or extensions of such building or use shall be mad e, exceeding: (1) 25 percent of the occupied floor area; or (2) 25 percent of the cu bical contents of the building or buildings as existing at the time of this enactment ; or (3) 25 percent of the service capacity of a use conducted all or partially in the open; and provided further, that subsequent to such extension or addition to a non -conforming building or use, there shall be no further additions or extensions excep t in accordance with the regulations of the district in which such building or use i s located.

Id. at 209–10. {¶ 118} The court concluded that Wagner’s “leasing of one-half of the p remises to 12 college students [did not] represent[] an improper enlargement or extension of the permissible nonconforming use.” Id. at 211. The court thus concluded that the zoning ordinance co uld not “modify, restrict or qualify [Wag ner’s] current use of the prem ises.” Id. {¶ 119} The township nevertheless argued that, because the zoning ordin ances defined Wagner’s current use of the property as a boarding house, Wagne r was required to obtain a special permit. The court, however, di sagreed and explained: The deficiency in the State’s argument is that it overlooks the fact that the zoning ordinance, or any definition contained therein, has no a pplication to, nor control of, a nonconforming use. It makes no difference that d efendant can be said to operate a rooming or a board ing house within the definition of the ordinance, if such use by defendant does not represent a substantial change f rom theWASHINGTON, 19CA23 45

nonconforming use of t he premises permitted t o defendant by law

. Clearly, defendant could, with com plete propriety, have leased the space in question to ‘more than three persons.’ The property had, in fa ct, been devoted to such use, and to occupancy by more than three persons, both bef ore and after the passage of the zoning ordinance. The use here attacked by the State is not substantially differe nt than the pre-existing, nonconforming use o f the property. Absent an aff irmative showing by the State that the occupancy of the premises by the young la dies could be distinguished from the occupanc y of the various previous tenant s, in that the young ladies’ occupancy created special or different problems in this residential community, and which problems coul d be said to be violative of and inconsistent with the design and intention of the zoning ordinance, the only valid distinction between the permitted use and the use complained of is in the n umber of tenants occupying the premises. A mere increase in number of tenants, even though a considerabl e increase, not requiring any alteration or p hysical enlargement or change of the premises to accommodate a larger number of tenants, is only an increase in the ‘intensity’ or ‘degree’ of use and cannot be said to represent a substantial, and thereby unlawful, enlargement or extension of defendant's nonconforming use.

Id. at 211–12. {¶ 120} In Triangle Fraternity v. Norman ex rel. Norman Bd. Of Adjustment , 63 P.3d 1 (Okla. 2002), the court determined that “a fraternity’s propose d use of a property as a fraternity house” is “substantially the same” use “as the property’s forme r use as a retired women’s boarding

house.” Id. at 2. The court thus concluded that the fraternity was entitl ed to “an extension of the existing nonconforming use.” Id. {¶ 121} In reaching its decision, the court compared the evidence prese nted at trial regarding the use of the property as a retirement home for wome n and the proposed use as a fraternity house. The court noted that when the property was u sed as a retirement home for women, twenty to twenty-two individuals lived on the property, “[m]eals were prepared for the individuals, social and recreational activities were organized, and some of the residents had

automobiles.” Id. at 7. The fraternity’s proposed use would involve “meetings, a ctivities, partiesWASHINGTON, 19CA23 46

and other occasional functions.” Id. Additionally, the fraternity expected twenty-two or twentythree residents to live on the premises. The fraternity also i ntended to allow alcohol on the premises. {¶ 122} The court concluded that “the fraternity’s proposed use of the property is substantially the same as that in existence since it was built in 1930. The character of its use as a residential building for persons who are not members of the sam e family where rooms are rented on a monthly or longer basis, meal s are provided, and social ac tivities occur has not changed in the seventy years since the house was built. The character of the neighborhood would not significantly change by the fraternity’s occupancy of the home. The evidence presented at trial reveals that the only real difference in [the two uses] is the age of the occupants coupled with an increase in the volume, intensity, and frequency of social gath erings. However, a mere increase in volume, intensity, or frequency of a nonconforming use is ge nerally recognized as insufficient” to demonstrate a change in use. Id. at 7. The court thus conclude d that the fraternity was

“entitled to an extension of the e xisting nonconforming use.” {¶ 123} The foregoing cases show that courts have generally been unwill ing to find that a change in a nonconforming use has occurred unless the succeedin g nonconforming use differs in some significant respect from the preceding nonconforming use. Courts have indicated that a change in nonconforming use does not occur unless the succeedin g nonconforming use changes

the fundamental nature and ch aracter of the activity conducted on the property, or has a significant effect on the surrounding community. {¶ 124} For example, in Herres v. Board of Trustees Harrison Twp. , 2 nd Dist. No. 23668, 2010-Ohio-3909, 2010 WL 3292047, the court concluded that a new owner substantially changedWASHINGTON, 19CA23 47

the previous lawful nonconformin g use as a commercial greenhous e when the new owner started to use the property as outdoor s torage for his business. After the previous owner started to use the property as a commercial greenhouse, the township enacted a zoning ordinance to place the property in a residential district. The use of the property as a commercial greenhouse thus became a legal nonconforming use. {¶ 125} Herres later purchased the property and used it to store items used in his landscaping business such as: (1) a sixteen-foot box truck, (2) a twenty-six foot f lat bed truck, (3) a pick-up truck, (4) two dump trucks, (5) a front-end loader wi th attachments, (6) mowing equipment, (7) trailers, (8) c onstruction materials, and (9) sk ids of bagged fertilizer and other landscaping materials like retaining wall blocks, trees, and bu rlap. The township claimed that Herres’s use violated its zoning ordinances and exceeded the sc ope of the property’s nonconforming use as a horticultu ral business. The township su bmitted evidence that the previous owner did not store any materials outside of the green houses and did not park any business vehicles on the property. Herres argued that his use was substantially the same as the previous owner and claimed that h e stored plants in one of the greenhouses before planting them

for customers. {¶ 126} The trial court determined that Herres “changed, expanded, and increased the nature and intensity of the nonc onforming horticultural use” of the property and, thus, discontinued the property’s previous lawful nonconforming use. Id. at ¶ 12. The trial court referred to photographs that showed constructi on-related equipment on the p roperty – vehicles, bobcats, campers, lumber, and plows. The appellate court affirmed and e xplained that Herres’s “storage

of items such as a front-end lo ader and its attachments, constr uction trailers, box trucks withWASHINGTON, 19CA23 48

commercial logos, dump trucks, un licensed vehicles, lumber, dec king, siding, retaining wall block, pavers, pond pumps, skids of landscaping supplies, and garbage is not a continuation of a legal non-conforming use.” Id. at ¶ 22. The court concluded that Herres’s “outdoor storage i n running a construction and landscaping business are such substantial al terations to the legal nonconforming use established by [the previous owner] that [Herres] has volun tarily discontinued the legal nonconforming use.” Id. at ¶ 23. {¶ 127} In Ledford v. Board of Zoning Appeals , 171 Ohio App.3d 24, 2007-Ohio-1673, 869 N.E.2d 1113 (2 nd Dist.), the court determined tha t adding an automobile repair garage destroyed the property’s nonconforming use status as a towing a nd automobile parts retail

business. In Ledford , the property had been used as a towing and automobile parts r etail business since the 1960s, before the city enacted zoning regulations tha t would have prohibited the business. The use as a towing and automobile parts retail business thus w as a lawful nonconforming use. The property owners later sought to operate an automobile repai r garage on the property. The zoning ordinance permitted automobile repair garages as conditi onal uses within the district where the property was located. The property owners asserted that ad ding an automobile repair garage was within the scope of the lawf ul nonconforming use as a towin g business and, thus, they should not be required to obtain a conditional use permit. {¶ 128} The appellate court, however, did not agree. The court noted t hat the property owners did not present any evidence that the preexisting towing business included automobile repair. The court determined that “attaching an automobile rep air garage as a permitted use of the * * * property to [the] valid towing and automobile parts r etail business would constitute a

substantial alterati on to the preexisting nonconforming use.” Id. at ¶ 38. The court thusWASHINGTON, 19CA23 49

concluded that the property’s lawful nonconforming use as a tow ing and automobile parts retail business would terminate if the p roperty owners chose to pursue obtaining a conditional use permit to operate an automob ile repair garage. {¶ 129} In QRP Dayton Properties, LLC v. Jefferson Twp. Board of Zoning Appeals , 2 nd Dist. Montgomery No. 25984, 2014-Ohio-2209, 2014 WL 2169849, th e court determined that engaging in a scrap metal busin ess on property used as an autom obile salvage business violated the township’s zoning code. In that case, the property’s use a s an auto salvage business was a lawful nonconforming use. When a new owner purchased the prope rty, the owner expanded the business to include scrap metal s ales. This scrap metal busine ss “consisted of ‘walk-ups,’ or ‘people * * * dragging there [sic] trashcans or their shopping carts * * * and all the * * * stuff that just doesn’t look great[,]’ incl uding ‘aluminum, wrought iron, beer cans, tires, circuit boards, computers, air conditioners and refrigerators free of hazardous substances, copper, speakers, and

wires.’” Id. at *1. The township subsequently issued a zoning violation no tice to the property owner for “operating [the] busin ess out of the s cope of allowab le use.” Id. {¶ 130} The property owner claimed that h is use was a continuation of t he previous lawful nonconforming use as an automobile junkyard. He alleged that s crap metal “is merely another form of junk” and that his use as a scrap metal business did no t change the property’s nature and

character Id. Area residents testified, however, that the scrap metal busines s increased thefts. They stated that “people were stealing scrap metal and other pr operty from occupied houses and selling the stolen materials t o” the appellant’s business. Id. at *2. {¶ 131} The board of zoning appeals determined that the property owner violated the zoning code by “extend[ing], enlarg[ing], and/or increas[ing th e] intensity of the nonconformingWASHINGTON, 19CA23 50

use of the property.” Id. The trial court upheld the board ’s decision and determined that the property owner’s “use of the prope rty to purchase scrap metal d oes not bear a reasonable similarity to its [original] nonconforming use in auto part sales.” Id. at *2. {¶ 132} The property owner appealed and asserted that using the propert y “as a scrap metal business did not change the natu re and character of the propert y’s prior nonconforming use as an automobile junkyard that sells salvaged auto parts.” Id. On appeal, the court concluded that the zoning ordinances did not permit the property owner to use the property as a scrap metal business.

The court observed that the “or iginal nonconforming use of the property was only for the sale of parts of junked automobiles” and the zoning code did not allow the use of the property to be extended to include scrap metal. Id. at *5. The court further noted that evidence existed that using the property as a scrap metal business negatively impacte d the surrounding community and increased scrap metal theft and scrap metal materials. {¶ 133} In Fellowship House Ministries, Inc. v. Zoning Board of Appeals , Superior Court of Connecticut No. CV 960538805, 1997 WL 728917 (Nov. 13, 1997) , the property had been used as a rooming house before zoning ordinances were enacted to pro hibit the use as a rooming house. Thus, the property’s use as a rooming house was a lawful noncon forming use. The property later sold to Fellowship House Ministries (FHM) who intended to use t he property to provide transitional housing services to the Alternative Incarceration Center. The city later sought to prevent the property from being used to provide transitional ho using services and the zoning board of appeals determined that FHM’s use of the property constitute d a change in use, i.e., a “[c]hange of use from a non-conforming roo ming house to an alternative in carceration center.” Id. at *1. {¶ 134} FHM appealed the board’s decision and asserted that the propert y was still used asWASHINGTON, 19CA23 51

a rooming house and the nonconfor ming use had not changed. FHM argued that the fundamental character of the property remained a rooming house. FHM claime d that, like its predecessor in title, it provided individual s with a place to live. {¶ 135} The zoning regulations defined a “rooming house” as: “A buildi ng in which rooms are rented for compensati on to more than one (1) and less than sixteen (16) persons other than members of the family of the proprietor. The serving of m eals or provisions for cooking is prohibited.” Id. at *3, quoting Zoning Regulations, City of Groton. The court d etermined that, even though the property continued to house individuals, “[t]he central component is the control and supervision of * * * specific individuals.” Id. at *9. The court found that providing housing to the individuals was simply an “adjunct” need and that “[h]ou sing [was] not the primary ingredient.” Id. at *9. Instead, “the structure, supervision, and the like” ar e FHM’s “raisons

d’etre.” Id. The court explained that “housing is only an incidental” to F HM’s stated mission of providing “a high measure of client supervision and accountabil ity” and “a maximum level of supervision.” Id. at *10. Because the court concluded that the use of the prope rty now resembles a corrections facility, and not of a rooming house, the court u pheld the trial court’s decision that FHM changed the nonconforming us e and that it was no longer use d as a rooming house. {¶ 136} A review of cases reveals that the inquiry into whether a propo sed nonconforming use is a continuation or a change in a nonconforming use is hig hly fact specific. A few rules emerge, however. First, courts are more likely to conclude tha t a nonconforming use has been changed to a different nonconforming use when the addition of i tems or activities fundamentally changes the nature of the use. Moreover, courts are more likel y to conclude that a change in nonconforming use occurred if the s ucceeding use has a greater impact on the surroundingWASHINGTON, 19CA23 52

community than the preceding nonconforming use. {¶ 137} In the case at bar, we do not believe that appellee presented e vidence in support of its summary judgment motion that would allow reasonable minds t o conclude only that Oriana House’s proposed use of the property as a r esidential treatment facility constitutes a change in the Woman’s Home’s nonconforming use as a residential facility for elderly women. In fact, appellee did not present any evidence at all to support its summary judg ment motion. Instead, appellee relied upon its bare allegation th at a residential treatment fa cility differs from a residential facility for elderly women. 3 Thus, appellee did not present any evidence to document the t ypes of

activities that the Woman’s Home’ s had conducted on the premise s and whether Oriana House’s proposed activities would be fundame ntally different from the W oman’s Home’s activities. Furthermore, appellee did not pre sent any evidence to show that Oriana House’s proposed use of

3 We note that R.C. 5166.01 defines a “[r]esidential treatment f acility” as a residential facility licensed by the department of mental hea lth and addiction services under section 5119.34 of the Revised Code, or an institution certified by the department of job and family services under section 5103.03 of the Revised Code, that serves children and either has more than sixteen beds or is part of a campus of multiple facilities or instituti ons that, combined, have a total of more than sixteen beds. Additionally, R.C. 5119.34(B)(1) defines a “residential facilit y” as follows: (B)(1) A “residential facility” is a publicly or privately oper ated home or facility that falls into one of the following categories: (a) Class one facilities provide accommodations, supervision, p ersonal care services, and mental health services for one o r more unrelated adults with me ntal illness or one or more unrelated children or adolescents with severe emotional disturbances; (b) Class two facilities provide accommodations, supervision, a nd personal care services to any of the following: (i) One or two unrelated persons with mental illness; (ii) One or two unrelated adults who are receiving payments und er the residential state supplement program; (iii) Three to sixteen unrelated adults. (c) Class three facilities provide room and board for five or m ore unrelated adults with mental illness.WASHINGTON, 19CA23 53

the premises as a residential treatment facility would pose tra ffic problems, congestion, or otherwise have a greater impact on the surrounding community th an the Woman’s Home’s use of the property as a residential facility for elderly women. Appe llee’s bare allegation that a residential treatment facility is different from a residential facility for elderly women is not sufficient to show the absence of a material fact regarding whe ther Oriana House’s proposed use of the property would constitute a change in the Woman’s Home’s nonconforming use of the property. {¶ 138} Therefore, because appellee did not establish the absence of a genuine issue of material fact as to whether Oriana House’s proposed use of the property would be a change in use, appellee has not shown that Section 1105.03 applies to Oriana H ouse’s proposed use. As we noted earlier, Section 1105.03 app lies when one nonconforming u se is changed to another nonconforming use of the same cl assification. Here, appellee d id not establish the absence of a genuine issue of material fact regarding whether Oriana House i s seeking to change one nonconforming use to another of t he same classification. Appel lee thus did not establish that Section 1105.03 applies as a matter of law. {¶ 139} Our conclusion that appellee failed to satisfy its summary judg ment burden does not, however, mean that appellants are entitled to summary judg ment in their favor regarding appellee’s request for an inj unction. We note that appellants also moved for summary judgment and, thus, also bore the burden to show that no genuine issues of material fact remain that they are not violating the city’s zoning ordinances by failing to obtain a special use permit from the Planning Commission. As we noted earlier, appellants’ first cl aim that Oriana House simply is seeking to continue the Woman’s Home’s nonconforming use of the property as a nonprofitWASHINGTON, 19CA23 54

institution with sleeping accommodations. Appellants contend t hat because both Oriana House’s proposed use and the Woman’s Home ’s use are defined as nonprofi t institutions with sleeping accommodations, the uses are the same kind of uses. Appellants thus assert that Oriana House has a constitutional right to continue the Woman’s Home’s nonco nforming use of the property and need not obtain a special use permit. {¶ 140} For appellants to be entitled to summary judgment, therefore, a ppellants must establish that no genuine issues of material fact remain as to whether Oriana House’s use of the property as a residential treatment facility is a continuation of the Woman’s Home’s nonconforming use as a residentia l facility for elderly women. Appellants have established that both uses fall within the same use classification as nonprofit institutions with sleeping accommodations. However, beyond the bare fact of the use class ification, appellants did not produce any evidence to show that the Oriana House activities w ill be of the same or similar nature

and character as the Woman’s Ho me activities conducted on the p remises. Although the fact that both uses may fall within the s ame use classification could be some evidence that Oriana House’s use is a continuation of the Woman’s Home’s use, case law indic ates that the underlying nature of the activities also must be thoroughly examined in order to det ermine whether a change in use

occurred. Without evidence to s how that Oriana House’s propose d use of the property would not constitute a substantial change from the Woman’s Home’s use of the property, one cannot conclude that appella nts satisfied their burden to show the abs ence of a material fact as to whether Oriana House’s proposed use cons titutes a continuation of the W oman’s Home’s nonconforming

use. {¶ 141} In sum, in the case sub judice we believe that neither party pr esented evidence toWASHINGTON, 19CA23 55

establish the absence of a genuine issue of material fact regar ding whether appellants’ intended use violates the applicable zoni ng ordinances. Appellee did no t establish the absence of a genuine

issue of material fact as to whether Oriana House’s use is a ch ange in the Woman’s Home’s nonconforming use. As such, appellee did not establish that Se ction 1105.03 and related ordinances require Oriana Hous e to obtain a special use permit from the Planning Commission. {¶ 142} Moreover, appellants did not estab lish the absence of a genuine issue of material

fact as to whether Oriana House’ s use is a continuation of the Woman’s Home’s nonconforming use. Appellants thus did not establish, as a matter of law, th at Section 1105.01 applies and that Oriana House need only obtain a use and occupancy permit before it can lawfully operate a residential treatment facility. {¶ 143} Accordingly, based upon the foregoing reasons: (1) we sustain a ppellants’ first and third assignments of error, (2) we overrule appellants’ second assignment of error, and (3) we reverse the trial court’s summary judgment in appellee’s favor and its judgment that granted appellee an injunction to prohi bit appellants from operating a residential treatment facility on the property unless appellants obtain a special use permit from the Planning Commission. We hereby

remand this matter to the trial c ourt for further proceedings c onsistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.WASHINGTON, 19CA23 56

JUDGMENT ENTRY It is ordered that the judgment be reversed and cause remanded for further proceedings consistent with this opinion. A ppellee and appellants shall eq ually share the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court di recting the Washington County Common Pleas Court to carry t his judgment into execution. A certified copy of this entry shall constitute that mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY: Peter B. Abele, JudgeWASHINGTON, 19CA23 57

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fina l judgment entry and the time period for further appeal commences from the date of filin g with the clerk.