COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59993 LEONARD SUSMAN, ET AL. : : : PLAINTIFFS-APPELLANTS : JOURNAL ENTRY : v. : AND : CLEVELAND BOARD OF ZONING : OPINION APPEALS : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1992 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas, Court, No. 158022. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiffs-Appellants: Joel I. Newman, Esq. 716 Leader Building Cleveland, OH 44114 For Defendant-Appellee: James P. Mancino, Esq. Assistant Law Director City of Cleveland Room 106, City Hall 601 Lakeside Avenue Cleveland, OH 44114 -2- *PRYATEL, J.: This appeal arises out of the judgment of the Cuyahoga County Court of Common Pleas. Therein, the trial court affirmed the judgment of the Cleveland Board of Zoning Appeals which dismissed appellant's request for a zoning variance. Upon review, this court finds no error, and affirms the judgment of the trial court. STATEMENT OF THE FACTS AND CASE This cause sub judice is on its second trip through the courts' circuit: we review the complexity of the procedural manner in which the cause unfolds before us. Initially we note that the same parties and the same issues were before this court in 1988. Then, our Court of Appeals affirmed the judgment of the Court of Common Pleas in Susman v. Cleveland Board of Zoning Appeals (1988), Cuyahoga App. No. 53771, unreported (hereinafter, "Susman I"). The background history of this case is as follows. In 1986, plaintiffs-appellants Leonard Susman, Milton Susman, Sally Cohen and Miles Auto Wrecking, Inc. applied to the Cleveland Board of Zoning Appeals for a zoning variance. Appellants sought a non-conforming use for three parcels of land owned by them for the purpose of a wrecking yard. On September 8, 1986, the Board of Zoning Appeals denied that request holding inter alia that (1) no exceptional local condition existed to justify the Board in making the exception and (2) granting the appeal would be detrimental to the general welfare of the neighbors hence contrary both to the intent and purpose of the zoning ordinance. -3- At that time, the Zoning Appeals Board was aware that a variance had been issued in 1969 for one of the three parcels, but found "that the appellant failed to proceed with said grant at that time and the condition grant lapsed." The Zoning Board further found that the appellants would suffer no unreasonable hardship in the denial of the variance. Appellants then appealed to the Cuyahoga County Court of Common Pleas. On April 16, 1987, the Common Pleas Court affirmed the decision of the Board "as reasonable, lawful and based on substantial evidence." Thereafter, appellants appealed to our court. On May 12, 1988, we affirmed the judgment of the trial court holding: "Little evidence, if any, was presented to support a hardship or deprivation of property rights. Appellants failed to meet the conditions attached to the granting of a previous variance for this type of operation and have indicated that it would not be feasible for them to extend the masonry wall to the gas station area for this variance. Clearly, the use of this property as submitted would be contrary to the intent of the City's zoning code. No evidence exists on this record that the Board's decision was unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence. Accordingly, these assignments of error are overruled." Susman, supra. Our ruling was not appealed. In August 1988, three months after the Court of Appeals decision in Susman I, appellants again applied to the Zoning Board for a variance on the identical three parcels of land. Appellants submitted this new petition by alleging that a permit -4- issued in 1970, which was not produced for the court previously, showed compliance with the 1969 variance. In sum, appellants based this need for a new review on the existence of the 1970 conditional permit which called for the authorized work to be completed by October 2, 1970 (see Exhibit A attached). The Board of Zoning Appeals dismissed the new appeal in a resolution dated September 12, 1988. In that Resolution, the Board stated that on September 8, 1986, the Board refused the identical appeal, and that the "Rules and Regulations of the Board would not permit rehearing a matter previously decided unless substantial new evidence was to be established." In short, the Zoning Board did not find that the resurrected lapsed 1970 permit was "substantial new evidence." Appellants then again appealed the Zoning Board's decision to the Cuyahoga County Court of Common Pleas. On May 15, 1990 that court upheld the Zoning Board's judgment holding: "The Court, having reviewed the briefs of the Parties and the entire record, affirms the decision of the 9/12/88 of the Cleveland Board of Zoning Appeals, dismissing the appeal." On June 14, 1990, appellants appealed once again to the Eighth District Court of Appeals from the Court of Common Pleas judgment projecting the same issue for our review. ASSIGNMENTS OF ERROR Appellants' assignments of error I and II will be discussed concurrently because of a common basis in law and fact. "I. THE TRIAL COURT ERRED BY CONFIRMING A DECISION OF THE BOARD OF ZONING APPEALS -5- WITHOUT CONDUCTING A HEARING AS TO DISPUTED FACTS NECESSARY TO THAT DECISION." "II. THE TRIAL COURT ERRED BY FIND[ING] THAT RES JUDICATA APPLIES TO AN ADMINISTRATIVE HEARING WHERE THERE HAS BEEN A FACTUAL CHANGE BETWEEN HEARINGS." Appellants argue that the trial court erred by affirming the decision of the Board of Zoning Appeals. Specifically, appellants contend that the trial court should have conducted a hearing on new evidence, and that because of that new evidence res judicata is not applicable. These assignments of error are not well taken. ISSUE: WHETHER THE TRIAL COURT PROPERLY DISMISSED APPELLANT'S CASE WITHOUT HEARING PURSUANT TO RES JUDICATA On May 15, 1990, when the Cuyahoga County Court of Common Pleas dismissed appellant Susman's appeal from the decision of the Zoning Board, the trial court upheld the Zoning Board's judgment by holding: "The Court, having reviewed the briefs of the Parties and the entire record, affirms the decision of the 9/12/88 of the Cleveland Board of Zoning Appeals, dismissing this appeal." Appellant Susman argues error contending that a hearing should have been held to hear and review "new evidence," because the 1970 permit was found between the review of the case (1988) and the within case (1990). Appellant had already submitted this permit to the Zoning Board for review. The Board evidently determined that the permit did not rise to the level of "substantial new evidence." The trial court found no error with the Board's resolution. Nor do -6- we. This court concurs with the decision of the Zoning Board as well as the judgment of the Court of Common Pleas. Accordingly, we affirm the trial court for the following reasons. Appellant submits that the 1970 permit shows proof of compliance with the conditional requirements of the variance. The record, however, indicates otherwise. Nor would the physical existence of the lapsed permit alter the Zoning Board's reasons for denying appellant's earlier petition. In Susman I the Court of Appeals specifically stated the conditional requirements needed to justify the variance, "*** in 1969 Milton Susman and Miles Auto Wrecking were granted a variance to use the property as an auto wrecking yard *** provided that no vehicles would be parked in the setback area and that a ten foot high masonry wall would be erected on the north and south sides of the property." Although the authorized work was to be started by September 10, 1970 and completed by October 2, 1970, the Board had evidence before it in 1986 that compliance with the conditions of the variance had not been met. The Board held that appellant "failed to proceed *** and the conditional grant lapsed": "WHEREAS, after due consideration of the testimony submitted at the said hearing, the Board finds that the appeal should be refused for the following reasons: "The evidence establishes *** that in 1969 the Board conditionally granted a wrecking yard on the major portion of the property; that the appellant failed to proceed with said grant at that time and the conditional grant lapsed; ***" -7- Therefore, the 1970 lapsed permit could not show compliance with the conditional grant of variance since the Zoning Board inspector did not find compliance when he inspected the property in 1986. As we have said before in Susman I, the Court of Appeals found: "Mr. Gaeta, the zoning engineer, testified that an auto wrecking yard was not a permitted use in the semi-industrial district and that such use as submitted did not comply with the fence and off-street parking requirements. Mr. Gaeta also stated that portions of the property currently utilized as an auto wrecking yard were not in compliance with the fencing requirements. Appellants' counsel told the Board that a wall was built as previously required and that it could be extended. However, he said that it would not be feasible to extend it to the area where the gas station is located. Otherwise, he indicated that appellants were willing to comply with the City's requirements." On review then, we find that the emergence of the apparently misplaced permit did not alter the evidence that neither the Board of Zoning Appeals nor the trial court had before them on the second time around. Further, the Board made its determinations on other factors, such as the effect that the granting of the appeal would have on (1) the general welfare of the neighbors and (2) whether the variance would be contrary to the intent and purpose of the zoning ordinance. See FRC of Kamms Corner v. Cleveland Board of Zoning Appeals (1984), 14 Ohio App. 3d 372; Consolidated Mgmt., Inc. v. Cleveland (1983), 6 Ohio St. 3d 238. Accordingly, the trial court did not err in dismissing -8- the appeal without hearing, as there was no substantial new evidence to consider. Appellant's second assignment of error then is moot. We conclude that the Board of Zoning Appeals properly determined that it had passed upon the identical question in its resolution of 1986. Accordingly, appellant's issues are res judicata. Nor will we relitigate a point of law or fact that was at issue in a former action between the same parties and was passed upon by a court of competent jurisdiction, Consumers' Counsel v. Pub. Util. Comm. (1985), 16 Ohio St. 3d 9. Our court determined the identical cause sub judice in Susman v. Cleveland Board of Zoning Appeals (1988), Cuyahoga App. No. 53771, unreported. That prior judgment now has res judicata effect. See Quality Ready Mix, Inc. v. Mamone (1988), 35 Ohio St. 3d 224, 227. The trial court is affirmed. -9- 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 Common Pleas Court 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. Exceptions. BLACKMON, P.J. and HARPER, J., CONCUR. *AUGUST PRYATEL JUDGE * SITTING BY ASSIGNMENT: Judge August Pryatel, Retired Judge of the Eighth Appellate District of Ohio. 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 time it will become the judgment and order of the court and time period for review will begin to run. .