COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69189 CITY OF BRECKSVILLE : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION QUINTINO MARCHETTI, ET AL. : : Defendants-Appellants : : DATE OF ANNOUNCEMENT OF DECISION MARCH 7, 1996 CHARACTER OF PROCEEDING Civil appeal from Court of Common Pleas Case No. 279864 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: PAUL A. GRAU, ESQ. PAUL MANCINO, JR., ESQ. ROSS S. CIRINCIONE, ESQ. 75 Public Square Bldg. Castleton Building Suite 1016 5306 Transportation Blvd. Cleveland, Ohio 44113-2098 Cleveland, Ohio 44125 - 2 - JAMES M. PORTER, J., Defendants-appellants Quintino and Theresa Marchetti appeal from injunctive relief entered in favor of plaintiff-appellee City of Brecksville and enjoining the defendants from building a detached garage in their front yard in violation of the Brecksville Building Code. Defendants contend the court erred in finding defendants' structure was prohibited, in holding that defendants were estopped to relitigate the denial of the variance, in dismissing defendants' counterclaim, in requiring defendants to tear down the structure, and in considering criminal convictions in another case. We find no error and affirm. Plaintiff City of Brecksville is a "home-rule" municipal corporation which has an existing zoning code governing activities in the City. Since 1972, defendants owned a home at 8501 Riverview Road in Brecksville. The property was zoned for use as a single family residential dwelling. In October 1993, Mr. Marchetti inquired of the Brecksville Building Inspector, Robert Miller, whether he could construct a detached garage in the front yard of his residence. He was informed it was prohibited by the Brecksville Building Code and he would need a variance if he wanted to go ahead. Despite this advice and without a building permit, Marchetti in early December began construction of a concrete slab in the front yard and an addition to his attached garage. Building - 3 - Inspector Miller discovered the concrete slab on December 9, 1993, after receiving a complaint. No one was home at the time, so Miller left a sticker note asking Marchetti to call him about the matter. By letter dated December 9, 1993, Miller also sent a formal notice to Marchetti advising that he was not following proper building procedures; that work on the detached garage was proceeding without the required permits; he requested Marchetti to contact the Building Department; and directed him to stop all work until he had obtained the proper permits. On December 15, 1993, Marchetti came to the Building Department and requested two additional weeks to submit complete drawings of the proposed detached garage and an addition to the existing garage. On January 5, 1994, Miller noted that the drawings had not been submitted. On February 16, 1994, Miller noted that no permit had been issued and that the slab had not been removed. He referred the matter to the Building Commissioner for an informal hearing. By letter dated March 9, 1994 to Mayor Hruby, Marchetti disputed the City's position that he needed a variance to construct a detached garage in his front yard. By letter dated March 18, 1994, Mayor Hruby responded and advised Marchetti of the applicable Brecksville Building Code Sections preventing the construction. On March 21, 1994, Marchetti applied for a building permit to construct a detached garage in his front yard and to construct an addition to his existing attached garage to convert it to an all- - 4 - purpose family room. The Building Department denied this application as contrary to the building code in both respects. It found the addition to the existing garage would have violated the minimum side yard setback requirements. On March 22, 1994, Marchetti applied to the Board of Zoning Appeals for a variance from: (1) the side yard set back requirements to add to the existing attached garage and (2) the prohibition against the construction of a detached garage in his front yard. On April 11, 1994, the Board granted the variance permitting the side yard encroachment, but denied a variance for the detached garage. Brecksville's Charter Section 7(B) requires City Council to review and approve any variance granted by the Board of Zoning Appeals. On April 19, 1994, Council approved the variance concerning the side yard encroachment. Marchetti did not appeal the decision of the Board of Zoning Appeals denying the variance for the detached garage in the front yard. On April 18, 1994, the original building permit application was modified to delete the detached garage. The Brecksville Code also requires that each single family residence must have at least two off-street covered parking spaces. Cod. Ord. 1183.05(a). Once the application to build the detached garage was denied, Marchetti could not feasibly convert the existing garage into a family room as he needed two off-street covered parking spaces as required for - 5 - a single family residence. Therefore, Marchetti's original garage had to remain as was, although he could enlarge it. The building permit application was therefore modified to delete reference to the detached garage and to delete the reference that the existing garage was going to be converted into an all purpose room. The permit simply allowed Marchetti to enlarge his existing garage. On April 18, 1994, a building permit was issued to construct an addition to the existing garage. On April 28, 1994, the Mayor forwarded a letter to Marchetti summarizing the action of the Board in denying the variance, but allowing him to add on to his existing garage. By letter dated May 9, 1994, Marchetti again disagreed with the City's requirements that a variance for the construction of the detached garage in his front yard was required. By letter dated May 19, 1994, the Building Commissioner advised Marchetti that he had three options regarding the concrete slab poured in the front of his residence without benefit of a building permit: (1) Marchetti could apply for a permit for the existing concrete slab to be used for off-street parking; (2) he could remove the concrete installed without a permit; or (3) he could apply for a permit to construct an attached garage to his residence over and including the concrete slab. Marchetti was not given the option of building the detached garage on top of the concrete slab. - 6 - In response to the May 19, 1994 letter from the Building Commissioner, Marchetti on May 23, 1994, applied for a building permit for the slab by modifying the original plan to show that the proposed detached garage was removed and that the slab was only to be used as an open-space parking area. On May 26, 1994, the Building Department issued its permit for the concrete parking area. Marchetti paid double the permit fee since this construction had originally been undertaken without a permit. Marchetti contended below that he relied on this permit to justify construction of the detached garage in the front yard. On June 7, 1994, the Building Department learned that Marchetti had commenced building a detached garage structure in his front yard. Building Inspector Miller inspected the site and observed the construction of the attached garage under way. He issued a stop work order and a notice to dismantle and remove the structure. The two orders were affixed to the detached structure on June 7, 1994. Contemporary photographs of the construction were taken showing the location of the structure, as well as the "stop work" sign affixed to the front of the building. The defendants refused to dismantle the partially built structure. Further notices of violation, stop work orders and orders to dismantle the offending structure were issued from June 8, 1994 through June 13, 1994. As a result of Marchetti's failure to comply with the orders, on June 16, 1994, two complaints were filed in the Garfield Heights - 7 - Municipal Court (Case Nos. 94-CRB-3964(a) and 94-CRB-3964(b)) charging violations of the Building Department's "Stop Work Order" and failure to dismantle the offending structure and for the construction of the detached garage without a building permit. On June 29, 1994, after a jury trial, Marchetti was found guilty of Section 1301.01 of the Brecksville Code for failure to obtain a building permit and Sections 1191.13(a) and (d) thereof for failure to stop work and remove the offending structure. Marchetti was to serve 30 days in jail; a fine of $250 was imposed and a fine of $100 per day was also imposed for each day the garage remained standing. This Court affirmed convictions in Brecksville v. Marchetti (Nov. 22, 1995), Cuyahoga App. No. 67719, 67722, unreported. October 15, 1994, the Brecksville Police contacted the Building Department and informed them that Marchetti was installing aluminum siding on the detached garage. Building Inspector Miller contacted Marchetti by telephone and directed him to stop all further work. This was confirmed by letter dated October 18, 1994. The Building Commissioner visited the Marchetti property on October 15, 1994 and observed the additional construction. He immediately nailed a "stop work" order on the garage which was at this point about 75% completed. The following Monday, the Building Commissioner returned to the property and found his "stop work" order had been removed from the garage and the garage structure had been completed. - 8 - On November 10, 1994, the Building Commissioner forwarded a letter to Marchetti reiterating that the building permit issued for the addition to the existing attached garage did not allow the garage to be converted into a family room. On November 4, 1994, Brecksville brought the instant suit for injunctive relief against Marchetti pursuant to R.C. 715.30, which affords relief for zoning violations. Said case proceeded to trial on February 28, 1995. On June 5, 1995, the trial court entered its findings of fact and conclusions of law granting the City the injunctive relief sought and requiring defendants to bring the offending structures into compliance with the Building Code. From that final judgment the defendants filed a timely appeal to this Court. We will address the assignments of error in the order asserted. However, Assignments of Error I and VI will be adressed together as they raise similar issues. I. THE COURT COMMITTED PREJUDICIAL ERROR IN RULING THAT DEFENDANTS' STRUCTURE CONSTITUTED A PROHIBITED CONSTRUCTION OF A DETACHED GARAGE IN DEFENDANTS' REQUIRED FRONT YARD. VI. THE COURT COMMITTED PREJUDICIAL ERROR IN RULING THE ORIGINAL CONSTRUCTION OF DEFENDANTS' HOME ESTABLISHED THE FRONT BUILDING LINE AND FRONT YARD. Defendants claim that the trial court committed prejudicial error in holding that: "Defendants' structure constituted a prohibited construction of a detached garage in Defendant's required front yard." Cod. Ord. 1151.38 (footnote "b") prohibits - 9 - the construction of accessory structures in the front yards of residential districts. Cod. Ord. 1113.26(B) contains the following definition: (b) "Front Yard" means the yard extending from the front wall of the building, or front boundary of use, to the front street right-of- way line across the full width of the lot. The evidence displayed that the front building line and the "front yard" were established when the residence was built in 1972. Defendants argue that they are entitled to build the garage in the front yard because it is more than 75 feet from the front street right of way line, i.e., a minimum set back requirement and because the structure is built in front of the turn around driveway. Defendants maintain that since the turn around driveway is a "use," that pursuant to Cod. Ord. 1113.26, as long as the structure is before the front boundary of the use it is permitted. We are not persuaded by defendants' arguments. Cod. Ord. 1151.38 provides that any accessory building or use was "[n]ot permitted in required front yard." To accept the construction argued by defendants would mean, as the City points out, that the existence of a permitted driveway would allow any detached accessory structure to be placed in the required front yard of single family residential dwellings; i.e., the driveway would be a permitted "accessory use" under Section 1113.24(c). That is an unreasonable construction of the code. "Courts are reluctant to interfere with the interpretations of a local ordinance and are inclined to defer to the judgment of the - 10 - municipal body so long as the ordinance bears a substantial relation to public health, morals, safety or welfare and is not unreasonable or arbitrary." Mayfield Hts. v. Cardarelli (1989), 63 Ohio App.3d 812, 817. The trial court properly rejected defendants' interpretation of the Code, and deferred to the Zoning Board's more reasonable interpretation. Building Inspector Miller testified that the detached garage built by defendant without permit is within the prohibited "front yard" area of the Marchetti lot. Q. Now, is it a requirement in the City of Brecksville that every home that is built has a front yard? A. That's correct. All the yards must be adhered to. A front yard is required and a rear yard is required and the side yards. Q. So there is a required front yard for every house that's been built in the City of Brecksville in the absence of a variance? A. That's correct. Mr. Marchetti established his front yard by the placement of his home when the house was constructed -- the building line. Q. Then the reference made in Section 1151.38(B), that no garages are permitted in the required front yard, that is referring to the front yard that's established when the house is constructed? A. That's correct. Q. Concerning another issue raised by Mr. Mancino concerning this driveway, the turnaround, where is the front boundary of this particular use? A. The -- Q. The front boundary of this driveway? - 11 - A. The whole length from the front building line forward. (Tr. 56-57) Defendant's interpretation of the Brecksville Code would virtually render the prohibition against accessory structures (such as a detached garage) in the front yard of residences meaningless. Assignments of Error I and VI are overruled. II. THE COURT COMMITTED PREJUDICIAL ERROR IN RULING THAT THE FAILURE OF DEFENDANTS TO APPEAL A NON- APPLICABLE RULING BY THE BOARD OF ZONING APPEALS ESTOPPED THE DEFENDANTS FROM RELITIGATING THE ISSUE OF THEIR NEED FOR A VARIANCE. The trial court held that defendants were estopped to relitigate the denial of a variance to construct a detached garage in their front yard because they failed to take an administrative appeal from the Board's denial pursuant to R.C. Chapter 2506. We agree with the trial court's ruling on this issue. Defendants applied to the Board for two variances, one for a variance from the Code's side yard requirements and the other to construct a detached garage in the front yard of the premises. The side yard variance was granted; the detached garage variance was denied. The denial was appealable to the Common Pleas Court pursuant to R.C. 2506.01 et seq. Instead of appealing that decision, Marchetti continued construction of the detached garage in his front yard. He can not now challenge the denial of the variance as a defense to the City's injunctive action. Defendant has made no - 12 - claim of unconstitutionality with regard to the Brecksville Code. Accordingly, any challenge to the denial of the variance had to be made by administrative appeal. Miller v. Village of Glenwillow (May 9, 1994), Cuyahoga App. No. 58655, unreported at 7. The Supreme Court held in Schomaeker v. First Nat. Bank (1981), 66 Ohio St.2d 304, paragraph three of syllabus: A person entitled under R.C. Chapter 2506 to appeal the order of a planning commission granting a variance pursuant to a village ordinance is not entitled to a declaratory judgment where failures to exhaust administrative remedies is asserted and maintained. In Schomaeker, a plaintiff who sought relief "essentially on the basis that the granting of a use variance was against the weight of the evidence and contrary to law" fell far short of attacking the validity or constitutionality of the ordinance, and declaratory relief was, therefore, unavailable: We further hold that plaintiff was not entitled to declaratory judgment relief in the common pleas court, because such an action does not lie when a direct appeal to the common pleas court pursuant to R.C. Chapter 2506 is available. In any event, plaintiff was collaterally estopped from raising the propriety of a use variance, given a prior judgment necessarily adjudicating this issue. * * * Given the availability of an R.C. Chapter 2506 direct appeal, a property owner *** adversely affected by the granting of the use variance *** may not challenge the granting of such use variance in a declaratory judgment action where such property owner does not assert the invalidity or unconstitutionality of the ordinance. - 13 - Id. at 306, 312.2 As this Court recently held in Jones v. Chagrin Falls (May 25, 1995), Cuyahoga App. No. 67416, unreported at 11: The converse would also be true, i.e., the denial of a variance would be subject to the same requirements of exhausting administrative remedies. Plaintiff Jones cannot thwart the administrative process by simply declaring he is not bound by it and filing a declaratory judgment action. To permit such a course of action would remove local zoning disputes from the administrative process and vest it in the Common Pleas Court. The decision of this Court in Perrico Property System v. City of Independence (1994), 96 Ohio App.3d 134, cited by defendants does not support a contrary position. In Perrico, this Court held that the constitutionality of a zoning order could be attacked either by an administrative appeal or a declaratory judgment action because only courts can rule on the constitutionality of a zoning regulation. Perrico at 717. See, also, FRC of Kamms Corner v. Bd. of Appeals (1984), 14 Ohio App.3d 372, 373. As we have pointed out, defendants are not contesting the constitutionality of the ordinances. Ordinarily, prior to instituting a declaratory judgment or other action, a party aggrieved by a zoning ruling must exhaust his administrative remedies and pursue an appeal therefrom under R.C. Chapter 2506. See, generally, Chapel v. Solon (1988), 40 Ohio St.3d 3, syllabus; Perrico, supra at 718; Miller, supra at 6. The exception to this general rule only applies if the administrative - 14 - remedies would be wholly futile, are onerous or unusually expensive, seeking such remedies would be vain acts or if the administrative agency does not have authority to grant the relief sought. Karches v. Cincinnati (1988), 38 Ohio St.3d 12, 16; Standard Oil Company v. City of Warrensville Heights (1976), 48 Ohio App.2d 1; Shemo v. Mayfield Hts. (Sept. 30, 1993), Cuyahoga App. No. 64453, unreported. These exceptions have no application here. Defendants cannot simply ignore the denial of the variance, construct a structure in defiance thereof and then contest the issue in a collateral legal proceeding. Assignment of Error II is overruled. III. THE COURT ERRED IN DISMISSING THE COUNTERCLAIM OF THE DEFENDANTS BECAUSE PLAINTIFF HAD ISSUED A PERMIT TO THE DEFENDANTS AND GIVEN THE DEFENDANT THREE CHOICES OF ACTION AND DEFENDANTS CHOSE ONE OF THE THREE CHOICES OF ACTION OFFERED TO THEM. Defendants argue that the permit issued by the Building Department after the construction of the "concrete slab" was an approval of his plans to construct the detached garage. This argument is without merit. The record is clear, both from the testimony of Building Department officials, the course of conduct of the parties, as well as the plain language of the permits that the permit was issued to allow the "concrete slab" to remain as "off-street" parking pursuant to Cod. Ord. 1151.06. The City repeatedly advised Marchetti that his proposed construction was in violation of the Code and that no variance would be granted. - 15 - Contrary to defendant's assertion, the trial court properly dismissed his counterclaim which sought mandatory injunctive relief and a writ of mandamus against the City compelling the issuance of the various permits and preventing City officials from pursuing enforcement of penalties against defendants for their failure to comply with the Code. Defendants failed to demonstrate the requisite for the extraordinary relief and mandatory injunctive relief sought in their counterclaim. Mandamus does not lie unless the relator has shown a clear legal right to the relief prayed for; the respondent is under a clear legal duty to perform the requested act; and relator has no plain and adequate remedy at law. See, generally, State ex rel. Leach v. Schoten (1995), 73 Ohio St.3d 538, 539; The Chapel v. Solon, supra at 4; State ex rel. Winchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42; State ex rel. Harris v. Rhodes (1978), 54 Ohio St.2d 41. The defendants made no such showing in the trial court. Assignment of Error III is overruled. IV. THE COURT ERRED IN GRANTING RELIEF TO THE PLAINTIFF IN THE FORM OF AN ORDER TO TEAR DOWN THE STRUCTURE WHEN NO BUILDING OR OTHER HAZARD WAS SHOWN TO EXIST REGARDING THIS CONSTRUCTION. R.C. 715.30, pursuant to which the City sought injunctive relief, states as follows: No person shall erect, construct, alter, repair, or maintain any residential building, office, mercantile building, workshop, or factory, including a public or private garage, or other structure, within any municipal - 16 - corporation wherein ordinances or regulations have been enacted pursuant to sections 715.26 to 715.29, inclusive, of the Revised Code, or Section 3, Article XVIII, Ohio Constitution, unless said ordinances or regulations are fully complied with. In the event any building or structure is being erected, constructed, altered, repaired, or maintained in violation of any such ordinances or regulations, or there is imminent threat of violation, the municipal corporation or the owner of any contiguous or neighboring property who would be especially damaged by such violation, in addition to any other remedies provided by law, may institute a suit for injunction to prevent or terminate such violation. There is no requirement in the statute that the illegal structure presents a hazard prior to a court issuing its order to "terminate" the violation. Any alleged hardship caused by the court's order to remove the offending structure, is, as was clearly shown by the record below, principally caused by Marchetti himself in defying the zoning code and the procedures established thereunder. See Musarra v. Bd. of Zoning & Bldg. Code Appeals, City of Strongsville, Ohio (July 22, 1993), Cuyahoga App. No. 63328/63555, unreported at 9: There was no evidence before the Board which would disprove that Musarra created the hardship from which he suffered by electing to construct a larger than normal home on the site and by failing to obtain a construction permit and variance prior to construction of the rear yard structures. See, also, FRC of Kamms Corner, supra at 375. Given Marchetti's intransigence, the City had no choice but to seek the relief it sought pursuant to R.C. 715.30 to enforce its zoning code. - 17 - Assignment of Error IV is overruled. V. THE COURT COMMITTED PREJUDICIAL ERROR IN CONSIDERING CRIMINAL CONVICTIONS WHICH WERE ON APPEAL FOR WHICH THE COURT DID NOT HAVE THE RECORD OF THE CRIMINAL CASE. Defendants claim they were prejudiced by the trial court's reference in its findings of fact to defendant Marchetti's convictions in the Garfield Heights Municipal Court for failure to comply with the Brecksville Building Code. These matters were relevant to the background and history of the parties relationship and were admitted in defendants' answer to the complaint. We find no error in the court considering these matters in determining the need for injunctive relief. Defendants were not at liberty to relitigate the merit of those convictions and freely admitted them. Assignment of Error V is overruled. Judgment affirmed. - 18 - It is ordered that appellee recover of appellants 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 Court of Common Pleas 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. BLACKMON, P.J., and O'DONNELL, J., CONCUR. JAMES M. PORTER JUDGE 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 .