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Judge sides with City of Strongsville in Westwood Commons developer’s lawsuit over fence; developer appeals

November 13, 2018

Judge sides with City of Strongsville in Westwood Commons developer’s lawsuit over fence; developer appeals

STRONGSVILLE, Ohio -- A Cuyahoga County court has ruled in favor of the city in a lawsuit over a fence separating two commercial parking lots.

Common Pleas Judge Sherrie Miday said Cameron-Allie Development Group LLC -- which built and owns Westwood Commons, a retail-restaurant development on Pearl Road just north of Ohio 82 -- erected the fence last year without a permit and should remove it, as the city has ordered.  

Also, Miday said the fence didn’t comply with site plans and conditions -- as approved and stipulated by the city’s Planning Commission and Board of Building Code and Zoning Appeals -- for Westwood Commons and its neighbor, Architectural Justice Gallery & Café.

Cameron-Allie had installed the fence to discourage customers and vendors of Architectural Justice next door from parking in the Westwood Commons lot.

“The court finds that the (Strongsville) BZA’s decision was legal, reasonable, constitutional and supported by the preponderance of substantive, reliable and probative evidence contained in the record of the administrative proceedings,” Miday said in her Sept. 4 ruling.

Cameron-Allie, which filed the lawsuit in May, has already appealed the ruling to the Court of Appeals of Ohio, Eighth Appellate District. The firm is headed by longtime Strongsville developer Michael Catanzarite.

“The trial court (Miday) erred in finding that the City of Strongsville’s violation notice, related to Cameron-Allie’s construction of a fence, is valid and enforceable,” R. Todd Hunt, Cameron-Allie’s attorney, said in his Oct. 5 notice of appeal.

In a previous legal brief, Cameron-Allie said the city’s terms for Westwood Commons zoning variances were too vague to exclude a future fence. Also, the developer said that by ordering the fence down, the city was violating the company’s property rights by forcing Westwood Commons to give Architectural Justice use of its lot.

Lack of evidence

In her ruling, Miday said both Cameron-Allie and Architectural Justice sought city approval in 2015 to construct buildings at the northeast corner of Pearl Road and Westwood Drive. Cameron-Allie would build Westwood Commons, and Architectural Justice, a Medina interior design business, would open its second location, this one with a cafe.

“These buildings were part of a unified district for historical preservation known as the Town Center District,” Miday said.

The Strongsville BZA approved zoning variances for Westwood Commons and encouraged Cameron-Allie and Architectural Justice to “work together” to connect the two properties for pedestrian traffic.

In September 2015, the Strongsville Planning Commission and the city’s Engineering Department approved the Westwood Commons site plan “and a building permit was issued showing the connectivity between the two parcels,” Miday said.

Then, in fall 2017, Cameron-Allie built the fence without first seeking city permission. City officials, upon noticing the fence, sent a violation notice to the developer. Cameron-Allie applied retroactively for a permit in March 2018, but the application was denied four days later.

“The fence does not conform with the conditions imposed by the Board of Zoning and Building Appeals ... nor the site plan approved by the Planning Commission,” Building Commissioner Tony Biondillo wrote in his rejection notice.

Biondillo turned down the application also because Cameron-Allie never appealed his initial violation notice. Subsequently, Cameron-Allie appealed the violation notice, but was turned down.

Miday said that according to Ohio law and past appeals court decisions, “A court of common pleas should not substitute its judgment for that of an administrative board, such as the board of zoning appeals, unless the court finds that there is not a preponderance of reliable, probative and substantial evidence to support the board’s decision.”

Miday said one of the purposes of Strongsville’s town center district, which is where Westwood Commons and Architectural Justice are located, “is to protect and enhance the city’s attractions to tourists and visitors and the support and stimulus to business.”

″(Cameron-Allie) erecting a fence between the two businesses does not promote pedestrian connectivity and stimulus to the businesses in the area,” Miday said.

Further, Miday said Cameron-Allie admitted receiving a city violation notice regarding the fence in November 2017. The developer never appealed the notice, but applied for a building permit in March 2018, Miday said.

Parking problem

In previous legal briefs, Cameron-Allie said its project engineer never committed to a pedestrian connection from Westwood Commons to Architecture Justice due to topography on the site.

Cameron-Allie said that in September 2015, the city’s Architectural Review Board and Planning Commission approved the Westwood Commons plan minus the pedestrian walkway suggested by the BZA.

Afterward, Cameron-Allie “worked with” Architectural Justice on the connecting walkway. Cameron-Allie then built the walkway on its property in Westwood Commons. The city approved the walkway in January 2016.

Meanwhile, the city in 2015 granted Architectural Justice a variance allowing just 17 parking spaces, instead of the 32 spaces required under code.

As a result, there was a shortage of parking slots, and Architectural Justice customers and delivery trucks started parking in the Westwood Commons lot and using the walkway to reach Architectural Justice.

This burdened Westwood Commons businesses, and the zoning board chairman admitted erring in granting Architectural Justice a variance for so many parking spaces, the developer said. So Cameron-Allie built a fence blocking the pedestrian walkway.

Catanzarite said the walkway was voluntary, not required, and that the city had only asked him to “work with” Architectural Justice on the walkway. That language is not legally binding, he said.

Catanzarite said it’s unreasonable to expect Cameron-Allie to keep the walkway open forever. He said such a requirement would be an illegal taking of his property.

As for Biondillo’s violation notice regarding the fence, Cameron-Allie said it was initially sent to the wrong address.

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