Omran v. Lucas
| Decision Date | 13 December 2021 |
| Docket Number | 21 MA 0031 |
| Citation | 2021 Ohio 4592 |
| Court | Ohio Court of Appeals |
| Parties | IKREMAH OMRAN ET AL., Plaintiffs-Appellants, v. KENNETH D. LUCAS ET AL., Defendants-Appellees. |
2021-Ohio-4592
IKREMAH OMRAN ET AL., Plaintiffs-Appellants,
v.
KENNETH D. LUCAS ET AL., Defendants-Appellees.
No. 21 MA 0031
Court of Appeals of Ohio, Seventh District, Mahoning
December 13, 2021
Civil Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 19CV02473
JUDGMENT: Reversed and Vacated in part. Reversed and Remanded in part. Affirmed in part.
Atty. Thomas C. Nader, Nader and Nader, 7011 East Market Street, Warren, Ohio 44484, for Plaintiffs-Appellants and
Atty. Jason Rebraca, 129 North Meridian Road, Youngstown, Ohio 44509, for Defendants-Appellees.
BEFORE: David A. D'Apolito, Gene Donofrio, Cheryl L. Waite, Judges.
OPINION AND JUDGMENT ENTRY
D'Apolito, J.
{¶1} Appellants, Ikremah Omran ("Ike") and Ami Omran, appeal the entry of summary judgment by the Mahoning County Court of Common Pleas in favor of their next-door neighbors, Appellees, Kenneth D. and Ashely S. Lucas, on Appellants' claims for violations of deed restrictions, intentional violations of deed restrictions, and violation of city zoning ordinances, as well as Appellees' cross claim for abuse of process. Appellants' claims are predicated upon Appellees' construction of a two-story garage attached to their main residence by a concrete footer and breezeway.
{¶2} The trial court opined that Appellants waived their first deed restriction claim, which is based on the proximity of the new construction to the property line, when they failed to assert a challenge at the zoning board hearing on Appellees' request for a sideline variance, or file an appeal from the decision of the zoning board granting the variance. With respect to Appellants' second deed restriction claim, based on the number of automobiles that can be stored in the new construction, the trial court entered summary judgment in favor of Appellees due to a lack of evidence that the new construction can house more than three motor vehicles. The trial court further opined that Appellants had failed to establish any damages resulting from the alleged deed restriction violation, and further, that Ohio does not recognize a claim for intentional violation of a deed restriction. Appellees do not challenge the trial court's conclusion that Ohio does not recognize a cause of action for intentional violation of a deed restriction. Finally, the trial court opined that Appellants failed to demonstrate that there exists a genuine issue of material fact regarding the alleged zoning violation based on the affidavit of the city zoning inspector, in which he avers that the new construction was not an "accessory building," as that term is defined by the City of Canfield zoning ordinances, but instead, an "addition" to the main structure. The term "addition" is not defined in the ordinances.
{¶3} The trial court also entered summary judgment in favor of Appellees on Appellees' abuse of process claim. The trial court predicated its decision on the fact that Appellants assert claims based on the proximity of the new construction to their property line and its square footage in the amended complaint, but Ami concedes in a text
message exchange with Kenneth that Appellees' actual objection is the height of the new construction.
{¶4} Appellants assert seven assignments of error, which are grouped together for clarity of analysis. First, Appellants argue that Appellees failed to establish an essential element of their abuse of process claim. Next, Appellants contend that the new construction is an "accessory building," as defined by various city zoning ordinances, and as a consequence, its square footage violates the city zoning ordinances. Third, Appellants assert that they did not waive their zoning ordinance claim based on the size of the garage due to their failure to object to the sideline variance. Finally, Appellants argue that Ike's testimony regarding the value of the property before and after the new construction is sufficient evidence of damages to survive summary judgment.
{¶5} For the following reasons, the entry of summary judgment in favor of Appellees on their abuse of process claim is reversed and the judgment entry awarding attorneys' fees is vacated. The entry of summary judgment in favor of Appellees on Appellants' zoning claims is reversed and remanded for proceedings consistent with this opinion and judgment entry. Finally, the entry of summary judgment on Appellants' deed restriction claims in favor of Appellees is affirmed.
FACTS AND PROCEDURAL HISTORY
{¶6} Appellants and Appellees reside at 110 and 100 Montgomery Drive in Canfield, Ohio, respectively. According to Appellees' affidavits, they contemplated constructing a pole barn on their property in 2018. A pole barn is a farm building with no foundation and sides consisting of corrugated steel or aluminum panels supported by poles set in the ground typically at eight-foot intervals.
{¶7} However, Appellees reconsidered the idea when they learned that a pole barn is considered by the city to be an "accessory building" subject to specific size limitations set forth in the city's zoning ordinances. The term is defined in section 1123.01 (1) of the Canfield City Codified Ordinances, captioned "Definitions," which reads, in its entirety:
"Accessory building" means a subordinate building which is customarily incidental to and located on the same lot as the main or primary building, such as a detached garage or utility building, within a residential zoning district. An accessory building in an R-1 zoning district shall not contain more than thirty-five percent (35%) of the first floor area of the main building and in no case shall the total area of all accessory buildings on a lot comprise more than thirty-five percent (35%) of the building area of the rear yard in which it is located
{¶8} Similarly, section 1123.01(2) reads, in its entirety:
"Accessory use" means a subordinate use which is customarily incidental to and located on the same lot as the main or primary building. An accessory use in an R-1 zoning district shall not contain more than thirty-five percent (35%) of the first floor area of the main building, and in no case shall the total area of all accessory uses on a lot comprise more than thirty-five percent (35%) of the building area of the rear yard in which it is located.
{¶9} However, section 1169.03, captioned "Accessory Buildings," reads, in its entirety:
(a) An accessory building may be erected as an integral part of a principal building, or it may be connected thereto by a breezeway or other similar structure.
(b) An accessory building may be erected detached from the principal building. No detached accessory building shall be erected in any required yard except a rear yard, and shall not occupy more than thirty-five percent of the area of the required rear yard and shall be located a minimum of five feet from lot lines. For computing the percentage of occupancy of a rear yard, as required herein, if a detached accessory building is connected to the principal building by a breezeway, the ground area of such breezeway
shall be considered as a part of the accessory building and be included in the computation.
(c) Any accessory building, if not located in the rear yard, shall be an integral part of, or connected with, the principal building to which it is an accessory, and shall be so placed as to meet all yard requirements for a principal building of the same height and other dimensions as such accessory building.
{¶10} In order to avoid the statutory square footage limitations, Appellees decided to attach the pole barn to the main structure. However, the Mahoning County Building Department declined to issue a permit on the proposed construction.
{¶11} As a consequence, Appellees chose instead to construct an "attached" two-story garage. Section 1123.01(48) of the city ordinances reads, in its entirety, "'Garage, private' means a detached accessory building or a portion of the principal building used only for the storage of vehicles and incidental personal property."
{¶12} Prior to the commencement of construction, Appellees sought a variance with respect to the proximity of the new construction to Appellants' property line from the Planning and Zoning Commission of the City of Canfield. Kenneth submitted an adjustment application on April 11, 2019, requesting a "5 [foot] - 8 [inch] side yard adjustment for an attached garage." Legal notice of a hearing, which was scheduled for May 16, 2019, was sent to Appellees. Appellees do not dispute that they received the notice of hearing.
{¶13} Kenneth's request was the only matter considered at the May 16, 2019 meeting and was summarized in the notice as a request for "a 5 foot 8 inch side yard adjustment for an attached garage." Appellants did not attend the meeting. The adjustment application was approved that same day.
{¶14} A copy of the adjustment application, the notice, and the minutes of the meeting are attached to the motion for summary judgment. Primitive drawings of the proposed construction are also attached to the motion for summary judgment. The drawings have no separate exhibit number, and although they follow the notice in the attachments to the motion for summary judgment, it is not clear that they were an
attachment to the notice. With the exception of the sideline variance, no additional paperwork concerning the approval of the new construction by the city or county is attached to the motion for summary judgment.
{¶15} In his uncontroverted affidavit, Kenneth avers that Appellees had "multiple conversations with [Appellants] regarding [Appellees'] plans and offered to show them the plans," however, "[Appellants] seemed disinterested." (10/29/2020 Kenneth Aff., ¶ 4.) Both Appellees aver in their respective affidavits that an accommodation could have been made had Appellants...
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