COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60036 LOUIS BURROUGHS : : : JOURNAL ENTRY Plaintiff-Appellant : : : and -vs- : : OPINION : CITY OF CLEVELAND : : Defendant-Appellee : : DATE OF ANNOUNCEMENT OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. 177056 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Alonzo Snipes, Jr. Craig S. Miller Leader Building, Suite 850 Director of Law Cleveland, Ohio 44114 Theodore J. Piechocinski Assistant Director of Law 601 Lakeside Avenue Room 106 - City Hall Cleveland, Ohio 44114 - 1 - JOHN V. CORRIGAN, J.: Louis B. Burroughs timely appeals the trial court's decision granting the City of Cleveland the right to demolish real property owned by Burroughs. He raises three assignments of error: I. "The trial court erred and committed error prejudicial to the plaintiff in finding that the property located at 1206 through 1214 Hayden, Cleveland, is a public nuisance notwithstanding that the property is structurally sound, rehabilitable and effectively boarded up." II. "The trial court erred and committed error prejudicially to the plaintiff in that the trial court's decision is contrary to the manifest weight of evidence." III. "The trial court erred and committed error prejudicial to the plaintiff in finding that the subject property is a nuisance and ordering its demolition, in that execution of the order would amount to a taking without just compensation or deprivation of property in violation of the Fifth Amendment to the United States Constitution." Our review of the record compels affirmance. In 1975, Burroughs purchased a building located at 1206-14 Hayden Avenue in Cleveland. The property contains twenty-two suites and five other commercial areas. Ten years later, he transferred the property to Robert Mahoney pursuant to an unrecorded "pre-land contract agreement." In late 1987, Burroughs regained possession of the property in a foreclosure action. The Commissioner of Building and Housing for the City of Cleveland sent a notice of building ordinance violations to - 2 - Burroughs on October 12, 1988. The notice declared the property a public nuisance and warned that the building would be demolished if the violations were not corrected. Burroughs appealed the citation to the Board of Building Standards and Building Appeals. Following a hearing, the Board issued a decision on February 1, 1989 ordering Burroughs to submit a written plan for abatement of the violations within sixty days or the property would be demolished. In October 1989, Burroughs filed an action to enjoin the city. The trial court took evidence and found the property constituted a public nuisance subject to demolition. In his first assignment of error Burroughs asserts the trial court improperly determined the property to be a public nuisance. The second assignment of error challenges the manifest weight of the evidence supporting the court's decision. We will address these arguments together. A judgment supported by some competent, credible evidence shall not be reversed as against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St. 2d 279. Further, the weight to be given the evidence and the assessment of witness credibility is within the purview of the trier of fact. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 81. - 3 - Cleveland Codified Ordinance 2370-87, Section 3103.09 provides in relevant part: "(b) Declaration or Nuisance. All buildings or structures which are injurious to or a menace to the public health, safety or welfare, or are structurally unsafe, unsanitary or not provided with adequate safe egress, or which constitute a fire hazard, or which are vacant and open to public entry, or which are otherwise dangerous to human life or injurious to the public, or which in relation to existing use constitute a hazard to the public health, safety or welfare by reason of inadequate maintenance, dilapidation, obsolescence or abandonment, are severally, for the purpose of this Building Code, declared to be 'unsafe structures'. All such unsafe structures or conditions are hereby declared to be public nuisances. The public nuisance shall be abated by correction of the violations to the minimum standards of the Codified Ordinances of Cleveland, Ohio 1976, applicable City rules and regulations, the Ohio Revised Code, and Ohio Administrative Code including the Ohio Basic Building Code, or by demolition." Subsection (C) of the ordinance allows an owner to obtain a permit to board the property pending correction of the violations. Subsequent to boarding, the owner must obtain a rehabilitation permit or the building will continue to be deemed a public nuisance and subject to demolition. The ordinance further provides that if the owner fails to comply with a notice to repair or rehabilitate the property, the Commissioner may take appropriate steps to demolish the property. It is well-established that a municipal corporation may enact ordinances requiring repair and rehabilitation or demolition of public nuisances. Fifth Urban, Inc. v. Board (1974), 40 Ohio App. 2d 389. See, also, Solly v. Toledo (1966), 7 Ohio St. 2d 16. Demolition is appropriate after an owner has been given reasonable time to repair the property and when destruction is - 4 - reasonably necessary to abate the nuisance. Fifth Urban, supra, at 398; Jackson v. Columbus (1974), 41 Ohio App. 2d 90. The October 1989 notice of violations cited the property as follows: "3. 369.13 There are damaged, deteriorat- ed or missing window lights, sashes, weights, frames and sills. "4. 369.13 The front balcony porches, spindles, floor, ceilings, support posts are deteriorated. "5. 369.13 The door jambs, casings are damaged. "6. 369.13 The exterior masonry walls are in need of pointing, throughout. "7. 369.14 The exterior foundation is failing, needs pointing, has missing masonry units, permits the entrance of rodents. "8. 369.15 There is deteriorated exterior wood trim. "9. 369.15 The exterior walls of main structure are not maintained weather tight so as to resist deterioration. (repair and paint all wood trim). "10. 369.15 The gutters and down spouts are decayed, missing or deteriorated. "11. 369.19 The side, rear fence is not maintained in good repair. "12. 369.13 The chimney has loose units, needs repair and pointing. - 5 - "13. 391.23 It shall be the responsibility of the owner of each occupied dwelling unit to install smoke detectors in each structure as hereinafter provided." Burroughs testified that after receiving the notice he put iron gates on the front door, steel doors in the rear of the building and began boarding up windows. According to Burroughs, he must reboard many of the windows every two weeks. The city introduced recent photographs of the property depicting open, unboarded windows in the building. Burroughs told the court he timely submitted rehabilitation plans to the city as required by the Appeals Board. The property owner, however, did not have any copy of these plans and the record demonstrates the consultant hired by Burroughs to prepare the plans did not notify the City until April 5, 1989 that it had been hired. The plans were due sixty days after the February 1, 1989 Board decision. Earl Elston, the housing inspector responsible for citing the property, testified that he was not aware of any written plans submitted by Burroughs. Finally, the record demonstrates Burroughs had been unsuccessful in attempts to secure loans for rehabilitation of the property. The property owner argues that since the building is structurally sound and boarded-up, the city should not be permitted to demolish it. Even assuming the building is structurally sound, this is not the sole criteria for determining whether a building is a nuisance under the city housing ordinance. The building was cited for serious violations of the - 6 - housing code and nothing in the record indicates the violations have been abated. The owner's efforts at boarding up the building have not been successful as depicted by the City's photographs. Furthermore, the court reasonably could conclude the owner had not submitted any plan for the rehabilitation of the property as required by the Appeals Board. In light of the record, we find substantial, credible evidence to support the court's findings. Accordingly, the first and second assignments of error are overruled. In his third assignment of error Burroughs argues the City's demolition of the building constitutes a taking in violation of his Fifth Amendment rights under the United States Constitution. An appellant waives any alleged error which was not raised in the trial court. Kalish v. Trans World Airlines (1977), 50 Ohio St. 2d 73; State v. Awan (1986), 22 Ohio St. 3d 120; Kelly v. Bear Creek Investment Co. (February 14, 1991), Cuyahoga App. No. 58011, unreported. Constitutional rights also may be lost by the failure to assert them at trial. Awan, supra, at 122-123. Burroughs did not argue any violations of his constitutional rights at trial. Thus, he waived this argument on appeal. This assignment of error is overruled and the judgment of the trial court is affirmed. - 7 - 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 Common Pleas 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. DYKE, P.J., JOHN F. CORRIGAN, J., CONCUR JUDGE *JOHN V. CORRIGAN *(Sitting by Assignment: Judge John V. Corrigan, retired from the Eighth District Court of Appeals). N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .