Set Products, Inc. v. Bainbridge Tp. Bd. of Zoning Appeals

• Decision Date: 15 July 1987
• Docket Number: No. 86-1592,86-1592
• Parties: , 31 O.B.R. 463 SET PRODUCTS, INC. et al., Appellees, v. BAINBRIDGE TOWNSHIP BOARD OF ZONING APPEALS, Appellant.
• Court: Ohio Supreme Court

Page 260

31 Ohio St.3d 260

510 N.E.2d 373, 31 O.B.R. 463

SET PRODUCTS, INC. et al., Appellees, v. BAINBRIDGE TOWNSHIP BOARD OF ZONING APPEALS, Appellant.

No. 86-1592.

Supreme Court of Ohio.

July 15, 1987.

Syllabus by the Court

1. The doctrine of res judicata applies to the decisions of a township board of zoning appeals relating to the grant or denial of variances pursuant to R.C. 519.14.

2. Res judicata will not bar the grant of an application for a variance, after denial of a prior application covering the same property, upon a showing of changed circumstances.

3. The power of townships to enact zoning resolutions to regulate surface mining, pursuant to R.C. Chapter 519, has not been preempted by enactment of R.C. Chapter 1514.

This appeal concerns the operation of a sand and gravel quarry located in Bainbridge Township, Geauga County, on land owned by appellee H & R Investment Company. In 1970, H & R and Stoneridge Silica Sand & Gravel Company (the original quarry operator) applied for a variance from the appellant, Bainbridge Township Board of Zoning Appeals, to permit mining in the rural area, zoned five-acre residential. The variance was denied. The Geauga County Court of Common Pleas reversed, finding the denial to be arbitrary and unreasonable. The Court of Appeals for Geauga County affirmed, and directed that the variance be granted, subject to the self-imposed restrictions on the operation agreed to by Stoneridge Silica. In re Appeal of Stoneridge Silica Sand & Gravel Co. et al. (Sept. 30, 1972), Geauga App. No. 526, unreported. These restrictions, set out in a memorandum from Stoneridge Silica's counsel to the board of zoning appeals and dated December 7, 1970, included an agreement that the gravel excavation would be terminated after ten years from the date a permit was issued.

A conditional variance ¹ was issued to Stoneridge Silica on May 6, 1974. The variance was to terminate no more than five years from the date of issuance, although a five-year extension was available. However the final conditions also provided: "[i]n no case shall the excavation and extraction of natural materials and all of its ancillary functions continue after ten (10) years of the date of the issuance of the first zoning certificate for such operation." A successor-in-interest to Stoneridge Silica obtained a five-year extension of the variance in 1980, which would terminate on July 31, 1985. In December 1980, the board of zoning appeals authorized a transfer of the variance to appellee Set Products, Inc., subject to the same limitations imposed on prior operators.

On January 13, 1984, appellee Best Silica Company, in application No. 84-6C, sought a transfer of the variance from Set Products to it and requested another five-year extension for the operation. On March 15, 1984, the zoning board granted the transfer, but denied the extension on the basis of the ten-year limitation on the variance, concluding essentially that Best Silica had failed to show either unnecessary hardship or that denial of the variance would constitute an unconstitutional taking. This decision was not appealed.

On April 19, 1984, application No. 84-13C was filed by Best Silica Co., Set Products, Inc., and H & R Investment Co. They sought a variance to operate the quarry for its entire useful life, allowing for extraction of the remaining eighty percent of materials left to be mined and providing for reclamation of the land in accordance with a plan filed with the Ohio Division of Reclamation, pursuant to R.C. 1514.02. Following a hearing on May 17, 1984, the zoning board denied the application, finding it res judicata due to the decision on application No. 84-6C. The board also ruled that, notwithstanding res judicata, there was insufficient showing of unnecessary hardship to grant the variance. The court of common pleas affirmed on the basis of administrative res judicata.

The court of appeals reversed, finding sufficient differences in the two applications to defeat the application of res judicata. It then granted the variance, finding that a ten-year limitation on the operation was not intended, that appellees had demonstrated unnecessary hardship and that denial of the variance would amount to an unconstitutional taking of appellees' right to operate their quarry.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Donald A. Navatsyk, Cleveland, for appellees.

Craig S. Albert, Pros. Atty., and Forrest W. Burt, Chardon, for appellant.

HOLMES, Justice.

We are faced with two issues in this appeal: whether the doctrine of res judicata applies to the decisions of a township board of zoning appeals relating to variances, and if so, whether appellees demonstrated sufficient changed circumstances to avoid application of the doctrine in this case. We hold that res judicata is applicable to the grant or denial of a variance pursuant to R.C. 519.14(B), and operated to bar the April 1984 application by appellees, for the reasons which follow.

This court has held that res judicata, whether issue preclusion or claim preclusion, applies to those administrative proceedings which are "of a judicial nature and where the parties have had an ample opportunity to litigate the issues involved in the proceeding * * *." Superior's Brand v. Lindley (1980), 62 Ohio St.2d 133, 16 O.O.3d 150, 403 N.E.2d 996, syllabus; Consumers' Counsel v. Pub. Util. Comm. (1985), 16 Ohio St.3d 9, 16 OBR 361, 475 N.E.2d 782. R.C. 519.14 provides, in pertinent part:

"The township board of zoning appeals may:

" * * *

"(B) Authorize, upon appeal, in specific cases, such variance from the terms of the zoning resolution as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the resolution will result in unnecessary hardship, and so that the spirit of the resolution shall be observed and substantial justice done; * * * "

The grant or denial of a use variance, pursuant to R.C. 519.14(B), is an exercise of quasi-judicial power. Schomaeker v. First Natl. Bank (1981), 66 Ohio St.2d 304, 310, 20 O.O.3d 285, 289, 421 N.E.2d 530, 536; A. DiCillo & Sons, Inc. v. Bd. of Zoning Appeals (1952), 158 Ohio St. 302, 305, 49 O.O. 135, 136, 109 N.E.2d 8, 10. In making its determination of whether enforcement of the resolution will result in unnecessary hardship, a board of zoning appeals must permit the applicant to present evidence in support of such claim. Once granted, the variance runs with the land and, as a judgment in rem, cannot be collaterally attacked. State, ex rel. Brophy, v. Lakewood (1942), 139 Ohio St. 633, 636, 23 O.O. 142, 143, 41 N.E.2d 856, 857; see Garrett v. Richfield Twp. (1973), 45 Ohio App.2d 285, 287, 74 O.O.2d 408, 409, 344 N.E.2d 154, 156. Thus in this case, the conditions incorporated into the 1974 variance by court order, including the ten-year limitation on quarrying, could not be excised from the original variance in a subsequent direct action. The court of appeals erred in doing so here.

Of course, appellees were free to seek a modification of the original variance. We adopt as a general principle that res judicata does not bar making application for the modification or enlargement of an existing variance, or for lifting conditions previously imposed in connection with the grant of a variance, upon a proper showing of changed circumstances. 4 Anderson, American Law of Zoning (3 Ed.1986) 154, Section 22.51. In its extensive findings of fact and conclusions of law surrounding the January 1984 variance application, the board of zoning appeals concluded that Best Silica had failed to demonstrate that any additional unnecessary hardship had arisen since the original variance. As the board's decision was not appealed, it became a final judgment on the merits, whether or not erroneous, and was res judicata to identical future applications. Cf. LaBarbera v. Batsch (1967), 10 Ohio St.2d 106, 39 O.O.2d 103, 227 N.E.2d 55.

The April 1984 variance application did not present evidence of sufficient changed circumstances to overcome the previous denial. The board's decision in this regard will not be questioned, absent a showing that the decision was arbitrary, unreasonable or constituted an abuse of discretion. Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St.3d 238, 6 OBR 307, 452 N.E.2d 1287; Schomaeker v. First Natl. Bank, supra; 4 Anderson, supra, at 162, Section 22.54.

As a preliminary matter, application of res judicata here requires an identity of the parties to both applications, Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 113, 49 O.O.2d 435, 439, 254 N.E.2d 10, 14; Trautwein v. Sorgenfrei (1979), 58 Ohio St.2d 493, 12 O.O.3d 403, 391 N.E.2d 326. We must look to the substance of the cause of action to determine whether such identity exists amongst H & R Investment, Set Products and Best Silica. Trautwein, supra. In an action on a variance, which runs with the land, the landowner and his lessees enjoy the benefits of the variance and succeed to one another's interest in it. See Columbus v. Union Cemetery Assn. (1976), 45 Ohio St.2d 47, 74 O.O.2d 79, 341 N.E.2d 298. The addition of H & R Investment and Set Products to the application is not a sufficient change in circumstance, as these parties were privies to the original applicant, Best Silica.

Second, the substantive changes in the application were inadequate...