[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
