[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