Garrett v. Richfield Tp.
| Decision Date | 11 April 1973 |
| Citation | 45 Ohio App.2d 285,74 O.O.2d 408,344 N.E.2d 154 |
| Parties | , 74 O.O.2d 408 GARRETT et al., Appellants, v. RICHFIELD TOWNSHIP et al., Appellees. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. A variance is not personal to the property owner, but runs with the land; thus, in that respect, a judgment granting a variance is a judgment in rem and cannot be collaterally attacked.
2. Where a variance is granted after a public hearing, and is thereafter affirmed by the courts, such affirmance is res judicata as to all issues which the affirming court might have decided and as to all persons having an interest in the subject matter.
Jerome S. Kalur, Cleveland, for appellants.
Joseph M. Holden, Akron, for appellee Richfield Township.
Jones, Day, Cockley & Reavis and Raymond J. Durn, Cleveland, for appellee Ohio Sports Center, Inc.
The plaintiffs (appellants), Garrett and Rodatt, individually and as representatives of a class of Boston Township residents, filed a Complaint for a declaratory judgment and permanent injunction against the defendants (appellees), Richfield Township, and Ohio Sports Center, Inc., in the Court of Common Pleas of Summit County.
The relief prayed for requests that the use variance granted by Richfield Township to Ohio Sports Center, Inc., to construct a sports arena in a C-1 (retail commercial) zoned area of the township be declared to be an arbitrary and capricious act that will cause irreparable harm to the zoning plan of Boston Township, and the village of Peninsula, and that it is, therefore, null and void. They also asked that a permanent injunction be issued barring the use of such land for a sports coliseum.
Richfield Township filed an Answer, admitting the issuance of the variance, and asserted that the prior litigation testing the legality of that grant, in the unreported case of C. O. P. E., Inc. v. Ohio Sports Center, Inc., and Board of Trustees of Richfield Township, et al. (Summit County Court of Appeals case No. 6866) was 'determinative of the present action.'
In the instant case, Ohio Sports Center filed a motion for summary judgment, asserting that the matter was res judicata. The motion was supported by the filing of copies of the decision of the Board of Zoning Appeals, and the decisions thereafter on appeal, which upheld the validity of the variance. The motion for summary judgment was granted, and it is from that order that this appeal is taken.
Plaintiffs declare that 'the lower court erred in holding that this action is barred by res judicata.' They ask that the use variance heretofore granted by the Board of Zoning Appeals (the granting of which was affirmed by the courts) be declared null and void. However, in their brief they state:
The variance was granted after a public hearing, of which legal notice was given to all residents of Summit County, pursuant to R.C. 519.15. At that hearing, 'any person' had the right to 'appear in person or by attorney' to speak for or against the granting of the variance. Some persons (but, apparently, not the appellants) residing outside of Richfield Township were present at the hearing.
After reviewing the record of the proceedings of the public hearing, and those in the Court of Common Pleas, we said, in our unreported case, supra:
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...use variance could be granted and considered as administrative action and not legislative action. See Garrett v. Richfield Township (1973), 45 Ohio App.2d 285, 286, 344 N.E.2d 154. 4 Naturally, if the proposed use of the property conforms to or is permitted by the zoning ordinance, it is no......
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...having an interest in the subject-matter." State ex. rel. Brophy v. City of Lakewood, 139 Ohio St. 633, 635 (1942); Garrett v. Richfield Twp., 45 Ohio App. 2d 285, 287 (1973); Set Prods., Inc. v. Bainbridge Twp. Bd. of Zoning Appeals, 31 Ohio St. 3d 260, 263 (1987) (citing Brophy and statin......
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...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 th......