Two $1,600 monthly rent payments from the owners of Two Dads' Diner were delinquent and resulted in eviction proceedings.

Small businesses are an important strand in the fabric of Lakewood, so it’s disappointing when a new business and their landlord cannot get along.

Nick and Tammy Asimakis, owners of the building at 14412 Detroit Ave, on Wednesday withdrew their eviction case against Two Dads’ Diner in Lakewood Municipal Court.  (Read the complete court filings.)

The Rocky River couple had claimed that Two Dads’ Diner, owned by John Kamkutis and Frank Zingale, broke the terms of their lease by failing to make rent payments for the months of November and December. The lease was signed on August 31, 2009.

Tammy Asimakis issued their tenants a three-day notice to leave the premises on December 16, 2009 and six days later filed eviction papers and asked for back payments.

On December 31^st, John Kamkutis, who is also a Lakewood School Board member, deposited the delinquent checks in the Asimakis’ mailbox, and included a $1,600 check to cover January’s rent. He also provided payment for utilities.

Magistrate felt eviction was warranted

Magistrate Thomas J. Wagner heard testimony regarding the situation from Asimakis and Kamkutis on January 7, 2010 and concluded that Two Dads’ Diner failed to pay their rent and needed to vacate the building by January 31^st.

Business operating account statements provided by Kamkutis indicate the checks he provided Asimakis were cashed the day after the hearing. The statements show Two Dads’ Diner had a cash balance of about $4,800 near the end of the month, and a total of around $35,000 in transactions.

Violations of lease agreement and Ohio law cited by Two Dads’ lawyer

A little less than two weeks after the magistrate’s decision, a lawyer representing Two Dads’ Diner filed objections to the report and made a request to the court to overrule the judgment. Anthony J. Coyne of Mansour, Gavin, Gerlack & Manos argued that the landlord had violated the terms of the lease and Ohio law.

He said Ohio law prohibits the acceptance of money following the service of a three-day eviction notice. Coyne suggested that the acceptance of January’s rental payment should waive the three-day eviction notice because cashing the check was inconsistent with the notice to vacate.

Coyne felt the magistrate did not give consideration to relevant terms of the lease. For instance, the lease specifically states three-day notice must be provided via registered or certified mail. It also states the tenants have 30 days to make payment after receiving the notice. Kamkutis and Zingale received neither.

Coyne also argued the lease stated the landlord – not the tenants, as the magistrate had ordered – should be responsible for all attorney’s fees.

In a possible explanation as to why the rent was late, Coyne wrote that the landlords refused to accept rental payments unless they were made out to Tammy Asimakis, even though Nick Asimakis was also named as a lessor in the rental agreement.

Where do things go from here?

The Asimakis’ dismissed their legal action before they could respond to Coyne’s objections. Two Dads’ Diner remains open and is generating pretty positive buzz, but one has to wonder what will happen next. Will landlord and tenant co-exist peacefully, or will there be hard feelings that linger and cause other issues down the road?

LakewoodAlive posted this image of the proposed project on their Web site. The bottom most drawing depicts the front of the building. Click on the photo for a larger view.

Quaker Steak and Lube will be an anchor tenant at the Discount Drug Mart Plaza, according to the project’s architect, who shared details of a major renovation planned for the property located across the street from the Lakewood Public Library on Detroit Ave.

Speaking tonight to the Board of Building Standards/Architectural Board of Review/Sign Review, the project representative said the entire structure is getting “a total face lift from front to back.”

In addition to refacing the building with brick, the plan calls for complete removal of the front walkway overhang, removal of all angled street parking spots, new landscaping, and sidewalk expansion. The rear parking lot will be totally resurfaced and restriped.

One planned improvement certain to cause some controversy is the addition of a two-story faux tower perpendicular to Mars Ave. One board member called it “unnecessary” and thought it would clash with the nearby library.

A planning dept. representative described the tower in positive terms has having a “lantern effect” in relation to the view from Mars, but wanted to be sure steps were taken to discourage it from becoming a pigeon roost. Overall, he described the project as a “huge step forward.”

Another potential design disappointment will be the absence of oversized front windows in the Discount Drug Mart section of the plaza. The developer explained Drug Mart gets “real antsy” about big windows due to maintenance and security issues.

The developer was receptive to a suggestion from the board regarding the proposed color of the brick siding. To add character and break up monotony, they asked him to make each storefront a different shade. “It’s very easy to achieve,” he replied, explaining it could be done at no extra cost.

Out of a concern for long-term durability, the board asked the developer to consider using precast concrete materials instead of EIFS, a synthetic stucco poorly suited for high traffic areas.

One board member asked the developer to put together an exterior lighting plan to make use of the “monumental southern exposure” along Detroit Ave. A building dept. representative requested that the developer take into account the panoramic view from the upper floor of the Lakewood Library, and figure out a plan to shield the rooftop HVAC mechanics from sight.

Executive Director of LakewoodAlive Mary Ann Crampton said she worked on the renovations plans with representatives from the development group Giltz and Associates, Inc. over the last 18 months and found them to be very responsive.

She was not satisfied with their early project renderings because they were “matchy to the iconic structures we have,” referring to the library and neighboring Masonic temple. “It was not real,” she said. “This is a little more authentic.”

Crampton is partial to the tower. “You can actually tell we have a downtown,” she said.

She is looking forward to utilizing the expanded sidewalks during the summer for live music as part of a program she’s calling “front porch concerts.”

The board accepted the developer’s preliminary plans, and will continue to review them and offer feedback, but will not give final approval for several more months.

One quick aside — it would be nice if the city posted the plans for this project online and encouraged public comment.  They’ll never do it, but they should.

Update: Here are images of the approved drawings, and parking site design.

Approved drawings for Drug Mart Plaza renovation. Click on the image for a larger view.

Approved parking site plan for Drug Mart Plaza Renovation. Click on the image for a larger view.

GrafTech tearing down the barn

The board gave approval to GrafTech’s plan to tear down the prominent red brick building along Madison Ave. GrafTech representatives said the 110-year-old structure, also known as Building 19, is vacant and unstable due to a failing roof.

They explained a salvage expert from Chicago inspected the building and found it didn’t contain anything that could be recycled. The pine wood used to support the interior of the building, though old, was too soft to be reclaimed. Similarly, the bricks were deemed inappropriate for reuse as street pavers.

The board did take a firm approach with GrafTech and ordered them to rip out the concrete building pad and replace it with grass. GrafTech had hoped to get by on the cheap and leave the concrete pad in place.

Update: The building was demolished in June.

No love for Brennan’s Floral Gift Shop

For the second consecutive month, the board deferred approval of Daniel Brennan’s proposal for construction of a greenhouse/storage area at Brennan’s Floral Gift Shop at 13396 Madison Ave.

The board wants something with a higher-end look to it. One board member described the structure in the plan Brennan submitted as being “a big dumb box at the side of the building.”

Brennan and the board are having a tough time clearly communicating their ideas to each other. They suggested he meet with his architect and come up with a more detailed drawing.

The city bid $55,000 at sheriff's auction to acquire this property.

The city’s effort to rid itself of one of the blighted apartment buildings on West 117^th St. has run into a snag.

Wilshire Credit Corporation, acting as the servicing agent for Wells Fargo Bank, filed an appeal in the Cuyahoga Court of Common Pleas on December 11, 2009 seeking to block the city from demolishing the 8-unit building located at 1482-1484 West 117^th St. (Read the appeal here – .PDF)

A loan gone bad, a building in limbo

According to the loan history detailed in Wilshire’s court filing, CIT Group issued the former owner of the property, Mariana Sanic, an adjustable rate 30-year mortgage in May of 2005 for $208,500. The first monthly payment was around $1,500 at an interest rate of 8.05%.

Sanic defaulted on the loan three years later and Wilshire foreclosed on the property seeking $203,939.92. The interest rate on the loan had risen to 11.05%.

Wilshire won a default judgment in September of 2008, but before the property could be sold at sheriff’s auction, Sanic – who had lived on West Clifton – declared bankruptcy in Florida. The bankruptcy essentially put the building in limbo.

Excrement in the tub

Responding to a complaint, the Division of Building and Housing conducted an inspection of the property in June of 2009 and identified an array of damage to the interior and exterior of building including damaged floors and plaster walls, as well as broken windows, doors, and toilets. The housing inspector noted excrement in one of the bathroom tubs.

A copy of the correction notice was mailed to Sanic at her Port Orange, Florida address. She was given 30 days to make repairs.

Missed demolition notice – things get confusing

On October 15,^, 2009, the city sent a letter to Sanic and Wells Fargo Bank notifying them the property had been declared a nuisance and would be demolished. The letter indicated the deadline to appeal the decision was 10 days after receipt of notification, or, as it turned out according to the certified mail receipt, November 2^nd.

Though the letter was received by Wells Fargo on November 2^nd, it didn’t reach the correct contact person within the organization until much later, when it was too late to submit an appeal.

Almost simultaneously, the bankruptcy, which had kept the property in a virtual no man’s land for a year, was ended and the court ordered the property to sheriff’s auction for sale.

Wilshire, acting on behalf of Wells Fargo, mailed an appeal to the city, but it was rejected because it arrived after the stated deadline.

Wilshire’s position

Wilshire wants the county court to restrain the city from enforcing the demolition order. They also want to be able to appeal the demolition order before the city’s Board of Building Standards

Wilshire claims the city violated the 14^th Amendment of the U.S. Constitution that provides for due process. Under Ohio law, Wilshire believes, the city was supposed to have included the corrections notice in the October letter that warned them of the demolition order. According to their interpretation of Lakewood’s laws on the matter, the city should have recognized them as the owner of the property and sent them a copy of the corrections notice in June, when the inspection was originally performed.

Wilshire also says Ohio law requires the city to provide a 30-day window to appeal, not a 10-day period. Wilshire alleges the city sent the notification to the wrong corporate address in Maryland, when it should have gone to an address in Oregon – the same address listed on the foreclosure papers.

Finally, Wilshire refers to an Ohio appellate decision that gives property owners a reasonable time to repair their property if it isn’t an immediate threat to public safety.

Follow the money

In October of 2008, Wilshire appraised the as-is value of the property at $185,000. Seven months later, the same type of appraisal was performed and it registered a steep drop to $110,000.  The land – without the building on it – was deemed to be worth just $12,000.

Wilshire claims it has a $100,000 insurance claim pending and a firm rehabilitation plan that would allow it to completely repair the property and recoup its investment. Wilshire says the property is worth far more to them in a rehabilitated state, and they don’t want it razed.

City buys property at auction

11 days after Wilshire filed their court complaint, the property was auctioned off by the Cuyahoga County Sheriff’s office to the City of Lakewood for $55,000. Presumably, Wilshire had a representative present at the auction and could have easily purchased the property themselves if they so desired.

What happens next is not clear. Wilshire could withdraw their appeal, and let the city have the property. Alternatively, Wilshire could continue with the appeal and try to reach an agreement with the city that will allow them to rehab and sell the property.

Is this Cleveland or Lakewood?

Incidentally, the other vacant apartment building on the Lakewood side of West 117th – which the city is also trying to demolish – was struck sometime around December 28th by vandals  who smashed the glass in the front doors.

The city resecured the building with reasonable promptness, but one has to wonder what people think when they drive along West 117^th, and see all of that plywood on the Lakewood side of the street.

Woodward house razed, owners say appeals process wasn’t fair

It was mentioned in this space previously that the house at 1570 Woodward was designated as a nuisance property due to its poor physical condition and would be razed.

Well, it has been demolished. In a bit of a head-scratcher, the owners have filed separate appeals in county court seeking to invalidate the city’s nuisance designation. One of partners claims the appeal hearing was non-binding because the testimony wasn’t sworn. The other partner, whose name is not on the deed, alleges the process wasn’t fair because the city wouldn’t formally recognize him as a property owner.

When they spoke before the city’s board to appeal the nuisance designation and demolition order, they didn’t offer much of  defense. They said they were going to tear down the house, and were fighting with their insurance company over a settlement payment.

Read Victoria Greenleaf’s appeal (.PDF). Read Peter Machlup’s appeal (.PDF).

The Lakewood City Council tonight approved a three-year collective bargaining agreement with the Local 1043 and Ohio Council 8 American Federation of State County and Municipal Employees (Administrative Employees) — AFSCME.

According to Mayor Edward O. FitzGerald, it is very similar to the Public Works union contract that was approved in December. “It calls for a lot of sacrifice,” he said.

Workers will not receive a pay increase in 2010, but will earn raises of 1% and 2% in 2011 and 2012, respectively. They will also adopt a 90/10 healthcare plan.

“There are no sweeteners, so to speak, in the contract,” FitzGerald said. “Overall, it was a pretty positive [negotiating] experience.”

The city has five other union contracts it still must finalize.

Miscellaneous

The county gave the city $49,000 to run events like the H1N1 vaccination clinic that the city hosted in mid-December.

The U.S. Census will hold a Census Job Fair in the auditorium at Lakewood City Hall on Wednesday, January 13, 2010 at 5:30 p.m.

Councilperson Nickie Antonio (At-Large) introduced a representative from the Ohio Department of Health who announced a pilot program in Northeast Ohio that will attempt to lower the high rates of smoking among lesbian, gay, bisexual, and transgender young adults. (See their Web site)

The Council had a second reading of an ordinance that would make bicycle licenses free. They now cost $2. Police Chief Timothy Malley hopes the fee change will encourage more children to get licenses. The ordinance was referred back to the public safety committee for discussion.

Public Works Director Anthony Beno introduced an ordinance to give an easement to the Ohio Educational Credit Union located at 17526 Madison Ave.  The sidewalk easement would allow the credit union to have an ADA compliant ATM. The matter was referred to the public works committee for more discussion.

Discussion of liquor permit transfers for the BP gas station at 14718 Madison Ave. and The Root Cafe at 15118 Detroit Ave. was deferred until the police complete their examination of the situation.

The Council unanimously elected Councilperson Kevin Butler (Ward 1) as their new president. Councilperson Mary Louise Madigan (Ward 4) retained the vice presidency. They also formally accepted the final results of the November general election. “We’re thrilled you won,” said Butler of Councilperson Monique Smith’s victory.

Madigan announced the passing of Milan Stankovich. He recently retired from the city after over 54 years of service and did an absolutely fantastic job of greeting city hall visitors. He made Lakewood look good.

The council meeting lasted 27 minutes and was attended by around 15 people. Check out the docket (.PDF) here.

Woodford Ave. homeowners Gary and Marianne Zimmerman are not satisfied with the quality of communication they received from city hall involving a dispute over alleged housing violations. They filed a complaint in Cuyahoga County Common Pleas Court in an effort to gain access to city documents related to the situation.

According to the Zimmerman’s account of events (see a .PDF of their court filing), they lodged a noise complaint against their neighbor on September 23, 2009. A little more than a month later, someone anonymously complained to the Division of Housing and Building – in retaliation, the Zimmerman’s suspect – regarding the condition of their property. The complaint triggered a city inspection.

The city’s October 29, 2009 exterior property inspection identified six relatively minor issues that needed to be corrected: remove debris/unsightly material from the southwest corner of the yard area, maintain landscaping on property, repair rear gable, maintain siding at front eave, replace missing slate on the roof, and paint weathered lattice.

The correction notice noted two areas – the debris in the southwest corner of yard and the landscaping maintenance – that needed to be remediated by November 10, 2009. All remaining items needed to be corrected by December 1, 2009.

A couple of days later the Zimmermans sent a public records request to the city in an effort to determine the identity of their accuser. They also wanted to make a formal complaint against the housing inspector, who they believed entered their property without permission to conduct the inspection.

An excerpt from their letter:

“The acts are outrageous and abusive and an invasion of my privacy and clearly exceed the scope of the inspector’s authority. The actions of the inspector are bad enough that I felt the need to call and leave a message with the inspector that he is not allowed in my back yard to root around my back yard and search under my bushes. You can understand why I would be concerned that this inspector felt he had the right to root around in my back yard and look under my bushes. This was done when I was not present and when I was occupied helping settle the estate of my recently deceased father.”

The city’s law department replied that because the call was anonymous, they were unable to provide the name of the person who phoned in the complaint.

On November 18, 2009, the city issued the Zimmermans an order to appear in Lakewood Municipal Court for “failure to comply with a notice or neglect of maintenance” regarding the two minor violations that were supposed to have been fixed by November 10, 2009.

On that same day, Marianne Zimmerman wrote a letter of appeal to the mayor:

Ed Fitzgerald, Mayor
City of Lakewood
12650 Detroit Ave.
Lakewood, OH 440107

Dear Ed:

I am enclosing a records request regarding the Correction Notice I received. I am sorry it had to come to this. It is obvious that the situation got way out of hand. It was a simple matter of a disgruntled neighbor making an anonymous and false complaint to your Building Department in retaliation for a noise complaint I made against him. He even admitted he made the complaint and admitted he had no proof to substantiate his complaint. How it ended up with a building inspector looking under by bushes in my backyard at some plant pots in winter storage, I don’t know. I am not sure, but I think that the inspector is ordering me to move my pots. Nobody will tell me exactly what the problem is. I think the inspector is complaining about my roof. I can tell you that we have our roof regularly inspected and the roofer said the roof was ok and we have experienced no problems at all.

I would hope that we could come to some resolution and the Correction Notice could be voided. I will admit that I was hurt and upset that the City would treat me in such a callous and indifferent fashion after we have been good and loyal residents for 11 years. We even fix things on our property without any outside prompting. We feel it is our duty to keep our house in good repair. It seems to me that this inspection was in retaliation for a noise complaint we made against the tenant at 17465 Woodford. The landlord’s agent even admitted to making the complaint that prompted the inspection and even admitted he had no evidence to back up the complaint. This is nothing more than a neighbor dispute that got way out of control.

I just want this problem resolved and the inspection withdrawn.

Sincerely,
Marianne Zimmerman
17463 Woodford Ave.

The Zimmermans sent a second public records request to the city on the following day seeking the name of their accuser, photographic documentation of the items identified in the correction notice, and a host of other documents governing policies of the home inspection process.

The Zimmermans next filed a request on November 30, 2009 in Cuyahoga Common Pleas Court to get an order restraining the city from enforcing the notice of correction. They also asked the court to compel the city to satisfy their prior public records request.

The court declined to issue the restraining order regarding the notice of correction. The city provided some photographs related to the corrections notice, but the Zimmermans said it did not satisfy their public records request. Their case remains active in county court.

Having pled not guilty to the city’s housing-related charges, the Zimmermans face trial in Lakewood Municipal Court on January 11^th.

Due to the ongoing legal proceedings, the Zimmermans declined to comment on their situation.