Lakewood v. Calanni

[Cite as Lakewood v. Calanni, 2012-Ohio-699.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96844
CITY OF LAKEWOOD
PLAINTIFF-APPELLEE
vs.
CHARLES CALANNI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Lakewood Municipal Court
Case No. 2010 CRB 02452
BEFORE: Sweeney, J., Blackmon, A.J., and Cooney, J.
RELEASED AND JOURNALIZED: February 23, 2012
ATTORNEY FOR APPELLANT
John J. Frank, Esq.
John J. Frank Co., L.P.A.
7377 Magnolia Drive
Seven Hills, Ohio 44131
ATTORNEY FOR APPELLEE
Pamela L. Roessner, Esq.
Assistant Prosecutor
City of Lakewood
12650 Detroit Avenue
Lakewood, Ohio 44107
JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant Charles Calanni (“defendant”) appeals his conviction of
failure to comply with a city of Lakewood (“the City”) correction notice. After reviewing the
facts of the case and pertinent law, we affirm.
{¶2} Defendant has owned and operated an automobile service station in Lakewood
since 1979. On November 2, 2010, the City issued defendant a correction notice for, among
other violations, failure to “provide/maintain properly sized parking spaces in front parking lot
per the attached plan of approved ABR docket #5-27-84 (1143).” Attached to this notice was a
copy of the referenced parking plan, which illustrated eight parking spots.
{¶3} After continued non-compliance, on December 14, 2010, the City issued a citation
against defendant for “failure to comply — building violations” in violation of Lakewood
Codified Ordinances (“L.C.O.”) 1306.99. Specifically, the complaint reads, in part, as follows:
Defendant
* * * refused, neglected, or failed to comply with a notice requiring the abatement
or removal of a violation or requiring compliance with any provisions of this code
or any rule or regulation there under * * * in violation of Section 1306.99 of the
Lakewood Codified Ordinances, to wit: 1. Failure to provide/maintain properly
sized parking spaces in front parking lot, in violation of L.C.O. Chapter 1143.
{¶4} Defendant did not appeal this notice to the Board of Zoning Appeals.
{¶5} The case went to trial, and on April 29, 2011, the court found defendant guilty as
cited. Defendant appeals and raises two assignments of error for our review.
I.
The trial court erred by retroactively applying the City of Lakewood’s Codified
Ordinance[s] Chapter 1143 to appellant’s property use, thereby violating
appellant’s Constitutional right to due process of the law.
{¶6} Specifically, defendant argues that L.C.O. Chapter 1143, which was enacted in
1996, should not apply to his parking lot, which he has maintained in the same manner since
1984. However, upon review of the record, we find that the City did not apply L.C.O. Chapter
1143 to defendant’s property. Rather, the City notified defendant that he was in violation of a
parking layout that was unique to defendant’s property and effectively acted as a zoning variance,
which the City approved in May 1984. Defendant did not correct this violation or file an
administrative appeal pursuant to L.C.O. 1171.04. See also R.C. 2506.01 (governing the
procedure for appealing from a political agency or subdivision’s decision).
{¶7} Subsequently, the City issued a failure to comply citation in violation of L.C.O.
1306.99(a), which states in pertinent part, as follows:
Whoever * * * refuses, neglects, or fails to comply with a notice requiring the
abatement or removal of a violation or requiring compliance with any provisions
of this Code or other applicable Codes or any rule or regulation hereunder * * *,
or maintains a use * * * prohibited by the Code * * * shall be guilty of a
misdemeanor * * *.
{¶8} Although the correction notice, as well as the citation, referenced L.C.O. Chapter
1143, the record is clear that defendant was found guilty of violating L.C.O. 1306.99.
{¶9} Defendant has previously made a similar argument in this court. In Lakewood
v. Calanni, 8th Dist. No. 95610, 2011-Ohio-3465, defendant challenged his conviction for failure
to comply with a notice of violation pursuant to L.C.O. 1306.99, based on the underlying
violation of repairing vehicles on the sidewalk, rather than in the shop’s service area. This court
affirmed defendant’s conviction, noting that defendant was prosecuted for failure to comply and
that he waived the right to challenge the merits of the notice of violation by failing to appeal.
Id. at ¶20.
{¶10} Accordingly, the court did not retroactively apply L.C.O. Chapter 1143 to
defendant’s property and his first assignment of error is overruled.
{¶11} In defendant’s second assignment of error, he argues as follows:
II.
The trial court erred by finding appellant was guilty of a citation for a use of his
property that was lawful at the time the business and its parking facilities were
established.
{¶12} Defendant’s argument is based on the mistaken belief that he was convicted of
violating L.C.O. Chapter 1143. As stated in our analysis of his first assignment of error, this
was not the case. Evidence in the record shows that, to be in compliance with his approved
1984 parking scheme, defendant could have up to eight vehicles parked in the front lot of the
property. The City inspector testified that defendant was cited for having at least 12 vehicles
parked in the front lot; at no time was this ever lawful. See C.D.S., Inc. v. Gates Mills, 26 Ohio
St.3d 166, 497 N.E.2d 295 (1986) (holding that “‘nonconforming use’ is a term of art * * *
employed to designate a use of property which was lawful prior to the enactment of a zoning
ordinance and which use may be continued after the effective date of the ordinance”) (emphasis
omitted).
{¶13} Accordingly, the court did not err by finding defendant guilty of failure to
comply, and defendant’s second assignment of error is overruled.
{¶14} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Lakewood
Municipal Court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution
of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
PATRICIA ANN BLACKMON, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR