Cleveland v. ProTerra, Inc.

[Cite as Cleveland v. ProTerra, Inc., 2021-Ohio-1086.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 109696
v. :
PROTERRA INC., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: April 1, 2021
Civil Appeal from the Cleveland Municipal Court
Housing Court Division
Case No. 2015 CRB 025487
Appearances:
Barbara A. Langhenry, Cleveland Director of Law, and William
H. Armstrong, Jr., Assistant Director of Law, for appellee.
Roetzel & Andress, L.P.A., and Diana M. Feitl, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant ProTerra, Inc. (“appellant”) appeals from the
housing court’s judgment reinstating a fine of $100,000 for a violation of its
community control sanctions. Appellant operates what it describes as a temporary
storage, material handling, and screening operation in a Cleveland neighborhood.
In 2015, it was found to be in violation of the city’s zoning code for operating the
business without a certificate of occupancy. Appellant pleaded no contest to a
misdemeanor offense, and the housing court imposed a fine of $400,000 and also
placed appellant on community control. Since its conviction, appellant submitted
applications to the city of Cleveland for a certificate of occupancy multiple times
without success. The housing court ultimately reduced the fine to a $100 monthly
payment in June 2018 in order to allow appellant to work on a solution for the
massive accumulation of dirt its operation created. The subject of this appeal
stemmed from the housing court’s finding appellant in violation of its community
control in February 2020 and reinstating $100,000 of the original fine.
On appeal, appellant presents the following three assignments of
errors for our review:
I. Appellant’s plea is void because Appellant never enter[ed] a
plea of no contest on the record and the court failed to fulfill its
obligations under Crim.R. 11.
II. The Court’s February 26, 2020, judgment entry is void because
if fails to meet the requirements of Criminal Rule 32(C) and
R.C. 2929.25.
III. The Court abused its discretion by finding that ProTerra
violated its community control.
Our careful review of the lengthy record indicates that appellant’s
claim regarding its no-contest plea is barred by res judicata but, as we explain below,
the city failed to prove appellant violated its community control at the February
2020 community control violation hearing. While we recognize the housing court’s
frustration at the slow progress made by appellant in ridding a nuisance it had
created in the community, we are compelled to reverse the housing court’s judgment
finding appellant in violation of the existing terms of its community control.
A. Factual Background and Procedural History
Appellant operates its dirt storage and processing business at
16569 St. Clair Avenue in Cleveland. It receives, stores, and manages dirt and
related materials. On April 10, 2015, the city’s building and housing inspector
Dennis Garcia inspected the premises and observed a massive accumulation of dirt.
He issued a notice on April 13, 2015, citing appellant for a violation of the city’s
zoning code, specifically, Cleveland Codified Ordinances (“C.C.O.”) 327.02(c), for
using the property to store and manage dirt without a certificate of occupancy.
1. Complaint and No-Contest Plea
On November 21, 2015, the city filed a complaint against appellant at
the Cleveland Municipal Court, Housing Division, alleging appellant failed to
comply with the April 13, 2015 notice in violation of C.C.O. 327.02(c), an unspecified
misdemeanor offense. The complaint stated that each day of noncompliance shall
constitute a separate offense pursuant to C.C.O. 327.99(a).
On July 27, 2016, the trial court held a hearing on the matter. The
city’s inspector reported that the city sent the violation notice on April 13, 2015, but,
for over a year, appellant continued to operate its business without a certificate of
occupancy. The city, however, represented to the court that the parties were
working toward a resolution of the matter and the city would recommend a
$775,000 fine with 95% mitigated upon compliance.
Before accepting appellant’s change of plea from not guilty to no
contest, the court addressed appellant’s corporate representative Jonathan Varcelli,
advising him that by pleading no contest, the corporation would give up its right to
a jury trial, the right against self-incrimination, and the right to have its guilt proven
beyond a reasonable doubt.
The court also informed appellant that it could be liable for a fine of
$5,000 per day for each day of noncompliance from May 14, 2015, to October 19,
2015. The court, in addition, advised appellant that as part of its community control
it must “follow the plan that you’ve agreed upon to abate the nuisance at the property
within the time period that’s set by the City and the inspector.” The court advised
that the consequence of noncompliance is “a severely large fine.”
The court imposed a two-year community control, but stated that “if
the defendant is brought back in on the community control violation, the Court can
put the defendant on five years of community control.” While the city recommended
a fine of $775,000 with 95% mitigated upon compliance, the court imposed
$775,000, subject to a motion to reduce the fine upon compliance. The court,
however, stayed the fine for six months, until January 27, 2017, and indicated it
would allow an extension of time if appellant made progress.
As pertinent to appellant’s first assignment of error regarding
appellant’s no-contest plea, the transcript reflects the following exchange between
the court and appellant’s representative Varcelli:
THE COURT: Mr. Varcelli, do you understand those rights and
knowingly and willingly give them up?
MR. VARCELLI: Yes, Your Honor.
THE COURT: Okay. I’ll accept the plea. * * *
At the conclusion of the hearing, counsel for appellant specifically
confirmed with the court that appellant’s plea was a no-contest plea.1
After the hearing, the court issued a form judgment entry hearing on
the same day, imposing a fine of $775,000 and the judgment entry contained a
notation that “Defendant can file a motion to modify community control financial
sanction upon full compliance.” The judgment also reflects a two-year term of
community control.
Subsequently, on October 20, 2016, this court released a decision in
an unrelated case, Cleveland v. United States Bank, N.A., 2016-Ohio-7402, 72
N.E.3d 1123 (8th Dist.). This court reversed a judgment of the housing court
imposing community control sanctions on the ground that the form judgment entry
lacked certain requisite elements such as the specific code section the defendant
violated, the terms of community control, or the consequences of a violation of the
1 The transcript reflects the following:
[DEFENSE COUNSEL]: * * * Our intention was to plead no contest.
THE COURT: Yes. It’s a plea of no contest, finding of guilty.
[DEFENSE COUNSEL]: I just wanted to confirm that.
community control. This court held that the deficiencies of the judgment entry
mean the trial court did not properly convict the defendant and the community
control sanctions were void. Id. at ¶ 3.
Accordingly, on March 2, 2017, the trial court sua sponte journalized
a judgment entry in this case, stating that its July 27, 2016 form judgment entry
failed to comply with statutory requirements and was deficient pursuant to United
States Bank. The court set the matter for resentencing on March 14, 2017.
On March 14, 2017, the court held a hearing. Housing Court Specialist
Jerry Krakowski, who was assigned as community control officer in this case,
reported that progress was being made on the property. The city agreed that
appellant was working toward a resolution of the matter, and the court imposed two
years of community control and imposed a fine of $77,500, 10% of the original fine
of $775,000, to be paid under a payment plan. The court also advised appellant that,
once full compliance was achieved, appellant could ask the court to suspend the
balance of the fine. The court agreed to allow appellant pay $50 per month for six
months, but the amount would be increased to $2,000 after six months, and
appellant was to pay the balance of the imposed fine of $77,500 if it was not in full
compliance at the end of its community control.
The court furthermore explained the terms of appellant’s community
control: appellant was to keep all of its properties in compliance with the city’s code
and in good repair. The court specifically required appellant to abide by Cleveland
Housing Court Loc.R. 2.18, which requires the offender to “keep properties in good
repair” and “to abide by all laws,” which includes “abiding by all city code
requirements.”
The court advised appellant that if it were to violate its community
control, the court can impose a longer period up to five years, increase a more
restrictive community control terms, or impose a more severe financial sanction up
to $795,000.
In a judgment entry dated March 31, 2017, and journalized on April 4,
2017, the court imposed a fine of $77,500 — a significant decrease from the original
sanction of $775,000 — and a two-year term of community control sanctions. The
fine was to be paid at the rate of $50 per month for the first six months beginning
May 15, 2017, after which monthly payments would increase to $2,000. Appellant’s
community control obligations included: abide by the law (R.C. 2929.25(C));
comply with the housing court’s general probation requirements set forth in
Loc.R. 2.18, including keeping all properties appellant owned in the city in good
repair and in compliance with the city’s code; and report to and cooperate with its
community control officer. If appellant violates community control, the court may
impose a longer period of community control up to five years in total or impose more
restrictive community control sanctions, including financial sanctions.
On November 3, 2017, appellant filed a motion to extend the period
of $50 monthly payment for additional six months. The court granted the request
and extended the $50 payment schedule to May 15, 2018.
2. The City’s Motion Alleging Violation of Community Control
Sanctions
On February 26, 2018, the city filed a motion for probation violation,
alleging appellant violated its community control sanctions in that, after being found
guilty in July 2016 and placed on community control, appellant had yet to obtain the
certificate of occupancy but it continued to operate its business.
Appellant filed a response to the city’s motion, detailing its efforts to
secure a certificate of occupancy. Appellant first submitted its application on
November 2, 2016, and then resubmitted the application on January 25, 2017,
May 3, 2017, and November 2, 2017, but each time the application was found to be
noncomplying.
The main issue of nonconformance involved the dirt pile located
within 500 feet from a residential district. Appellant had intended to remove the
pile, but learned that the cost of removal would be around $700,000. Due to the
exorbitant cost, appellant decided to seek a variance instead. Its resubmission of
the application on November 2, 2016, included the retention of the dirt pile;
appellant expected to receive a nonconformance for the application and planned to
appeal to the Board of Zoning Appeals for a variance. Appellant stated that it had
taken numerous steps — submitting four applications — to secure a certificate of
occupancy since its no-contest plea, but the process has been delayed by the unique
nature of its business, the difficulty of securing a certificate of occupancy while
operating the business, and the lengthy review process at the Building and Housing
Department.
On April 26, 2018, the trial court held a hearing on the matter. The
issue at the hearing was whether appellant continued to operate its business despite
not having a certificate of occupancy. The transcript of the hearing was not part of
the record on appeal. According to the judgment entry issued by the trial court after
the hearing, Thomas Vanover, the City’s Chief Building Official, testified that he
visited the site on April 5, 2018, and observed large mounds of dirt, brick, and
asphalt on the property. He also saw machines used to sort and process the
materials on the site, although he did not see those machines in operation.
Varcelli, appellant’s Vice President, testified that appellant had
applied four times for a certificate of occupancy and its engineers and consultants
continued to revise the applications to meet the city’s code. Varcelli acknowledged
that appellant’s trucks were still bringing in new loads of dirt, but the trucks were
also moving dirt out.
Based on the evidence presented, the court found the city proved
appellant violated its community control sanctions. The court modified its financial
sanctions by increasing the total fine to $400,000, which equaled the maximum fine
of $5,000 for 80 counts of violation. The court also extended the community control
to April 30, 2020. Appellant asked for the court’s permission to maintain its
operation while it continued its efforts to secure the certificate of occupancy. The
court denied the request, on the ground that the court did not have the authority to
permit appellant to operate without the requite certificate.
In a decision dated on April 30, 2018, the court set forth the terms of
appellant’s community control, which included compliance with the local codes and
keep its property in good repair in accordance with Loc.R. 2.18. In addition, the
court ordered appellant to cease all business operations at the subject property until
it obtained a certificate of occupancy. Appellant was to pay a financial sanction of
$400,000 as part of its community control, at a rate of $2,000 per month for May,
June, and July 2018, and at a rate of $20,000 beginning on August 15, 2018.
Appellant was also informed that a failure to comply with the terms of community
control may result in a longer period of community control up to five years and more
restrictive community control sanctions, including increased financial sanctions up
to $775,000. The court also extended the community control term to April 30,
2020.
3. First Appeal and May 29, 2018 Status Hearing
On May 29, 2018, appellant appealed the trial court’s decision to this
court. Two days after appellant filed the appeal, on May 31, 2018, the trial court held
a status hearing on the matter. Chief Housing Court Specialist and appellant’s
community control officer Jerry Krakowski reported appellant had complied with
the requirements of its community control sanctions since April 30 2018, and it had
also been paying the financial sanction $2,000 per month timely. Krakowski also
reported the activities on the property were minimal and those activities only
involved taking the material out of the property.
Appellant’s counsel reported to the court that appellant had ceased
operation bringing materials to the site since April 26, 2018, and no more materials
were brought to the property. Appellant, however, received notification from the
city’s zoning administrator the day before hearing that the city found
noncompliance regarding the accumulation of dirt and other materials and the
parking situation, which appellant expected, but the city now also required a
masonry fence around the property because it considered the site a “junk yard.”
Appellant’s counsel indicated that appellant was aware that the property was an
issue for the community and it has been actively pursuing business opportunities to
allow it to give away the materials that have been accumulated on the site. Counsel
asked the court to revisit the schedule for the payment of the fine imposed on April
26, 2018.
The trial court indicated that it would be willing to revisit the fine
issue, but it currently did not have jurisdiction to take any action due to the pending
appeal. The trial court indicated that if it had jurisdiction, it “would consider that
ProTerra’s actions of ceasing active business operation is enough of a mitigating
factor and [it] would reduce the fine to $100.00 per month.”2 The court explained
2 The transcript reflects the following statement of the court to appellant’s counsel
regarding the appeal:
that the payment schedule imposed on April 26, 2018, was due to the fact that
appellant continued to operate and bring in more dirt to the site. At the conclusion
of the hearing, appellant’s counsel confirmed with the court that, in the event
appellant dismissed the appeal and filed a motion to modify, the fine of $100 per
month would remain “until we do something wrong or until something goes right.”
4. Appellant’s Motion to Modify the Financial Sanctions
Based on the trial court’s representation at the May 31, 2018 hearing,
appellant dismissed its appeal pending before this court on June 7, 2018, and on the
same day filed a motion to modify its community control financial sanction, seeking
a modification of the fine payment to $100 per month.
On June 15, 2018, the city filed an opposition to appellant’s motion,
on the ground that, although appellant ceased bringing in any new material to the
property, it had not removed the unauthorized material at the site. The city
maintained that under the terms of its community control, the accumulated
You filed an appeal. Your clients certainly have the right to go through with
an appeal. I’m not trying to talk you out of an appeal. But if you find that it
would be more productive in dismissing it and filing a Motion to Modify[,]
[u]der the circumstances, I would be inclined to take your clients having
ceased operations in essence as a significant mitigating factor and would
reduce it to $100.00 per month. All of the conditions remaining the same.
So it’s up to you.
***
So the choice is yours. Like I said, if you want to proceed with your appeal
that’s your right. It doesn’t in any way have me feel one way or the other
about it.
materials on the site must be removed until appellant received a certificate of
occupancy. The city argued that any modification of the payment amount must be
premised on quantifiable removal of the dirt until either the accumulation of dirt
was removed or a certificate of occupancy was obtained.
On June 25, 2018, the court issued a judgment entry. The court noted
that at the status hearing on May 31, 2018, the court explained it did not have
jurisdiction to consider appellant’s motion to modify during the pendency of
appellant’s appeal but stated that, if it had jurisdiction, it would maintain the total
fine of $400,000 but allow appellant to pay $100 per month because appellant had
ceased bringing in additional materials.
In the judgment entry, the court granted appellant’s motion to modify
the community control sanctions, reducing the fine to $100 monthly payments on
the ground that appellant had ceased bringing in new material to its facility. The
judgment entry stated that all other terms of appellant’s community control
sanctions would remain unchanged. Despite the city’s argument, the judgment
entry did not reflect an express requirement for appellant to remove the dirt and
related materials from the site as part of its community control.
5. Appellant’s Motion to Convert Financial Sanctions to
Community Work Service
On May 21, 2019, appellant filed a motion to convert the remaining
financial sanctions to community work service. Appellant stated that it has been
making the required monthly payments toward its fine since its no-contest plea in
July 2016, has ceased bringing materials into the property, and has been making
efforts towards securing a certificate of occupancy. It stated that, because of its
inability to operate the site, it had limited resources to pay the fine of $400,000.
Appellant asked the court to convert the remaining fine to community service,
specifically, to clean up an unrelated site at 14001 Aspinwall Avenue in Cleveland.
It submitted an estimate for the value of the proposed work at $127,800.
The city opposed appellant’s motion on the ground that appellant had
yet to remove the unauthorized material from its property or obtain the required
certificate. The city reported that two representatives from the city’s buildings
housing department inspected appellant’s property on May 23, 2019, and observed
the level of the dirt pile to be the same as in 2017 and 2018.
On July 3, 2019, the court held a hearing on appellant’s motion. The
record before us does not include a transcript for this hearing. In the judgment entry
issued on July 3, 2019, the court granted appellant’s motion and allowed appellant
to be credited for $127,000 toward the balance of the fine ($396,905) and would
suspend the outstanding fine of $269.105, upon the completion of the proposed
work. Again, despite the city’s argument, the court’s judgment did not reflect a
requirement for appellant to remove the existing dirt from the property.
The judgment contained a notation that at the July 3, 2019 hearing,
the city raised several issues regarding the conditions of the property and, as result
the court scheduled a site visit on July 22, 2019.3 No details of the site visit were
reflected in the docket but according to appellant, those present discussed
appellant’s need for a temporary certificate to process and screen the dirt in order
to expedite its removal.
The docket reflects that, subsequent to the site visit, on August 29,
2019, appellant filed a notice of its application for a temporary certificate of
occupancy, which sought permission to screen the dirt mound on the site.
6. Second Probation Violation Hearing
The docket next reflects that, on January 31, 2020, the court issued a
notice of hearing for appellant’s violation of community control sanctions upon
receiving a communication from Housing Specialist Geoffrey Englebrecht, the new
community control officer assigned to this case in January 2020. The
communication, attached to the court’s notice, indicated two violations: (1) failure
to pay the $100 monthly payment in September, October, and November 2019 as of
January 31, 2020, and (2) “[f]ailure to maintain property in compliance with
applicable ordinances and codes” by allowing “[c]onditions [to] remain for which
the property was originally brought before the Court.” Englebrecht stated, “I have
personally observed the above conditions and/or conduct in violation of the
3 The transcript of a subsequent hearing reveals that those who visited the site on July 22,
2019, included the trial judge who presided over this matter at the time, Housing Court
Chief Specialist Krakowski, the parties and their counsel, the City Inspector, and a city
councilman.
Community Control Sanctions imposed by this Court, and I respectfully request that
the Court schedule a violation hearing for the named offender.”
On February 26, 2020, a probation violation hearing, presided over
by a new judge recently assigned to the case, took place. Englebrecht reported that
appellant missed several payments but acknowledged that, before the hearing,
appellant’s counsel showed him two receipts of the payments, dated February 3, and
7, 2020, respectively. Englebrecht, however, stated that the motion for community
control violation was not just based on the missed payments but on the condition of
the site itself — he found that there was a “lack of visual progress of the property.”
He stated that he lived close to the site and drove by the site frequently. He found
that “visually, [the site] hadn’t changed for years.” Englebrecht acknowledged that
appellant had been submitting “load receipts” to show the loads of dirt that have
been removed from the property.
Tom Vanover, the Commissioner of Code Enforcement and city’s
Chief Building Officer, added that the accumulation included dirt, brick, asphalt,
concrete, and organic materials. While appellant had been required to obtain a
certificate of occupancy as part of its community control, Commissioner Vanover
acknowledged that appellant “cannot legally do what [it is] doing where [it is] doing
it. [It] never could, and [it] will never be able to.” He also stated that, while
appellant had submitted applications multiple times, it would not be able to operate
the site under the zoning code without a variance and, in his experience, “that
variance will never be granted.”
Appellant’s counsel reported that appellant had been submitting
weekly load receipts regarding the removal of the dirt to Krakowski and, pursuant
to the discussion at the site visit, appellant subsequently filed an application for a
permit to screen and process the dirt, which would significantly accelerate its
removal from the site. Vanover reported that appellant has just been granted a 180-
day temporary permit.
Michael Zychowski, appellant’s owner, acknowledged the company
had brought dirt and other materials to the site over several years. He stated that
under the watch of prior community control officer Krakowski, the company had
been allowed to continue to operate while working toward obtaining a certificate of
occupancy. The company would now focus on removing the material from the site
by screening it and giving the dirt away for free to construction projects in need of
backfill material.
The trial court expressed its dismay and frustration at appellant’s slow
progress removing the accumulation of the dirt from the site and also at how the
court had been handling the matter previously. Immediately before finding
appellant in violation of community control, it inquired about where appellant was
removing the debris from the Aspinwall site. When appellant’s counsel explained
that the debris from Aspinwall, which involved a demolition, were taken to landfills,
the court stated the following:
I’m just amazed at how the Court doesn’t ask for receipts of [dirt
removed] * * * how do you put somebody on probation, ask them to
clean up a site that’s under the Court’s jurisdiction * * * and not have
a tracking mechanism to make sure they’re not dumping at the other
person’s site? So guess what I’m about to do? So I find that you are
in violation of your probation.
After the hearing, the court issued a judgment entry. The court found
appellant violated its community control, reinstated $100,000 of the original fine,
and extended the term of community control to April 30, 2022. Appellant timely
appealed from the judgment.
B. Appeal
On appeal, appellant claims that its no-contest plea was invalid, the
trial court’s judgment entry reinstating a fine of $100,000 was void for failing to
comply with Crim.R. 32(C) and R.C. 2929.25, and the court abused its discretion in
finding appellant in violation of its community control and imposed an excessive
fine of $100,000. As we explain in the following, appellant’s claim regarding its no-
contest plea is barred by res judicata but the court erred in finding appellant violated
its community control. Appellant’s claim regarding the validity of the judgment
entry is moot.
1. No-Contest Plea
Under the first assignment of error, appellant claims that its plea of
no contest was invalid because at the July 27, 2016 plea hearing it did not formally
enter a plea of no contest on the record and also because the trial court failed to
comply with Crim.R. 11.
Appellant’s claim regarding his plea is barred by res judicata. Under
the doctrine of res judicata, a final judgment of conviction bars the defendant from
“raising and litigating in any proceeding, except an appeal from that judgment, any
defense or claimed lack of due process that was raised or could have been raised.”
State v. Perry, 10 Ohio St. 2d 175, 180, 226 N.E.2d 104 (1967). Appellant did not
appeal from the trial court’s judgment finding it guilty of a violation of the zoning
code based on its no-contest plea, and therefore, any claim regarding the validity of
the plea is now barred. The first assignment of error is overruled.
2. Finding of Violation of Community Control on February 26,
2020
Under the third assignment of error, appellant claims the trial court
abused its discretion in finding it in violation of its community control and imposed
an excessive fine of $100,000.
Community control violations are not criminal proceedings and the
prosecution need not prove a violation beyond a reasonable doubt. State v. Mingua,
42 Ohio App. 2d 35, 40, 327 N.E.2d 791 (10th Dist.1974). Instead, in such a
proceeding, the state is only required to present substantial proof that the defendant
has violated the terms of probation. State v. Motz, 2020-Ohio-4356, 158 N.E.3d
641, ¶ 26 (12th Dist.); State v. McCord, 8th Dist. Cuyahoga No. 92268, 2009-Ohio-
2493, ¶ 4; and State v. Hylton, 75 Ohio App. 3d 778, 600 N.E.2d 821 (4th Dist.1991).
Once a violation of community control is proven, we review the decision to impose
a portion of the suspended sentence for an abuse of discretion. State v. Walton, 9th
Dist. Lorain No. 09CA009588, 2009-Ohio-6703, ¶ 13.
Here, the notice of community control violation issued by the trial
court on January 31, 2020, cited appellant for a violation of its community control
on two grounds: failure to make the $100 payments for September, October, and
November 2019 and failure to maintain its property in compliance with the zoning
code by allowing “conditions [to] remain for which the property was originally
brought before the Court.”
The evidence shows the missed payments were made before the
violation hearing and the transcript of the hearing reflects the trial court did not find
appellant violated its community control on that ground. Rather, our reading of the
transcript reflects the trial court found appellant in violation because it was
dismayed at the slow progress of the cleanup of the site and frustrated that the court
previously had not required appellant to show proof of its efforts in removing the
dirt from the site.
While the trial court’s frustration is understandable, the record
indicates the terms of appellant’s community control have always been for appellant
to obtain a certificate of occupancy and appellant made ongoing efforts to obtain the
certificate. After its initial application on November 2, 2016, was rejected, appellant
sought clarification from the Department of Building and Housing and resubmitted
the application in January 2017. Thereafter, appellant resubmitted the application
twice, in May 2017 and November 2017. Appellant ultimately appealed the matter
to the Board of Zoning Appeals, the common pleas court, and this court. After the
site visit on July 22, 2019, appellant applied for a temporary permit to allow it to
process the material on the site so that it could accelerate the cleanup process.
It was not until the February 26, 2020 hearing that appellant learned
from its new community control officer that it would never be able to obtain a
certificate of occupancy to operate its business at the site without a variance, and a
variance “will never be granted.”
The record also reflects that, after appellant ceased bringing in more
material to the site in April 2018, the trial court appeared to be satisfied with the
progress made by appellant. It reduced the financial sanctions to a $100 monthly
payment, rejecting the city’s argument that appellant was not in compliance with its
community control for failing to remove the dirt from the site. The trial court
subsequently allowed appellant to convert a portion of the financial sanctions to
community work cleaning up a demolition site, despite the city’s objection on the
same ground. At the February 26, 2020 hearing, for the first time, the trial court
inquired about appellant’s progress removing the accumulated dirt from the site and
expressed its dissatisfaction at the lack of progress.
Our review of the record therefore shows appellant was never on
notice that removing the dirt from the site was part of its community control.
Although appellant was required to “keep properties in good repair” and to “abide
by all laws,” these general terms did not put appellant on notice that the terms of its
community control require it to remove the dirt from the site on a certain schedule
or by a certain deadline. As such, there is no proof, substantial or otherwise, that
appellant violated the terms of its community control.
We recognize the potential health and safety hazard posed by
appellant’s unauthorized business operation in the neighborhood and understand
the frustration of the housing court at the slow progress made by appellant in
abating the problem. However, the court still must act within the boundaries of due
process. With reluctance, we reach the conclusion that the judgment of the housing
court must be reversed.
The third assignment is sustained in part. The remaining claim under
that assignment of error regarding the excessiveness of the reinstated fine, as well
as the second assignment, is moot.
Judgment reversed. The matter is remanded to the trial court for
further proceedings consistent with this opinion.
It is ordered that appellant recover of appellee 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
municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
__________________________
MICHELLE J. SHEEHAN, JUDGE
MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR