COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67600 PRIME PROPERTIES, LTD PARTNERSHIP : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION CITY OF CLEVELAND BOARD OF ZONING : APPEALS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : MAY 18, 1995 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 259,557 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: JEFFREY H. LIGHT Attorney at Law 1476 Davenport Avenue Cleveland, Ohio 44114 For defendant-appellant: SHARON SOBOL JORDAN Director of Law DAVID D. ROBERTS, Assistant Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 DONALD C. NUGENT, J.: Defendant-appellant, City of Cleveland Board of Zoning Appeals, appeals from the judgment of the Cuyahoga County Court of Common Pleas reversing its decision that denied the administrative appeal of Prime Properties Limited Partnership (hereinafter "Prime Properties"). In its sole assignment of error, the zoning board contends that: THE TRIAL COURT ERRED WHEN IT REVERSED THE DECISION OF THE CLEVELAND BOARD OF ZONING APPEALS AS CONTRARY TO LAW, ARBITRARY AND CAPRICIOUS, UNREASONABLE, OR UNSUPPORTED BY THE EVIDENCE. The facts giving rise to this appeal are essentially as follows: Prime Properties owns property located at 923 James Street in the City of Cleveland, Ohio (hereinafter "the James Street property"). On January 28, 1993, Prime Properties was served with notice by the city's superintendent of sidewalks that sidewalks on the property were in violation of C.O. 505.12(a)(1) - 3 - 1 and (2). The notice indicated that the sidewalks needed the following maintenance: James Ave. side - westside 113' curbing, 113'x5'x4" concrete walk cracked and broken, gravel covered, place 121'x10'x6" drive and apron, exiting drive and apron stone and gravel. (C.O. 505.12:(a)(1)[and](2). (Emphasis added.). The ordinance cited by the superintendent of sidewalks, C.O. 505.12, governs the maintenance of improved sidewalks. Subsections (a)(1) and (2) provide, as follows: (a) Sidewalks having the following characteristics are determined to be in need of maintenance: 1 C.O. 505.01 defines a sidewalk as "*** [t]he space between the property line and the curb line on each side of the paved roadway or curbed streets ***." C.O. 505.02, entitled "Grading," adds to this definition of a sidewalk, as follows: (a) All sidewalks hereafter improved by placing walks with a permanent surfacing on any public highway or street within the City shall be so improved by constructing walks with stone flagging or concrete, and in accordance with the specifications prescribed by the Director of Public Service, and shall be of the width prescribed by resolution of Council, or as directed by the Director where no such resolution has been passed. The sidewalk shall be so laid that the top surface shall be properly roughened, so that the same shall be prevented from becoming slippery when covered with moisture. *** (b) Any grading necessary between the walks as laid, and the curb line, or between the walks and the edge of the sidewalk space as herein established, shall be done at the time of the laying the walks so as to leave the sidewalk space at the grade hereinafter described. (Emphasis added.) - 4 - (1) Any block having multiple cracks or any single crack larger than one-fourth inch (1/4") wide. (2) Adjoining sections of block, or portion thereof, whose edges differ vertically by one-half inch (1/2") or more. Prime Properties appealed the notice of sidewalk violations to the board of sidewalk appeals. A hearing was held, after which the sidewalk board upheld the determination of the superintendent of sidewalks that the subject sidewalks were in need of maintenance. Prime Properties thereafter appealed to the board of zoning appeals. After holding a full evidentiary hearing, the board of zoning appeals reversed the decision of the sidewalk board. The zoning board construed C.O. 505.12 as pertaining solely to the maintenance of improved sidewalks. With respect to the James Street property, the board found that there were no improved sidewalks and, consequently, C.O. 505.12 could not be used by the city to mandate repairs to the property. In its resolution, the board stated as follows: *** after due consideration of the testimony submitted at the said hearing, the Board finds that the appeal should be granted for the reason that the original order to the property owner, which was issued on January 28, 1993, ordered repairs to sidewalks citing Section 505.12(a)(1)[and](2): that Section 505.12 is entitled "Failure to Maintain Certain Sidewalks" that said section sets forth standards by which existing sidewalks are deemed to be in need of repair; that at present no sidewalks are located on the affected property nor abutting the same. (Emphasis added.) - 5 - The city did not appeal from this resolution of the board of zoning appeals. After the board of zoning appeals issued its decision, the city served Prime Properties with a second notice of sidewalk violations for the James Street property, this time for "missing" sidewalk. Instead of indicating that the "concrete walk [is] cracked and broken, [and] gravel covered" as it did in the first notice, this second notice cited to the fact that an improved sidewalk was "missing" on the James Street property. This second notice also cited to a different subsection of C.O. Section 505.12, to-wit: C.O. 505.12(a)(8), as the controlling ordinance. The second notice provided, in pertinent part, as follows: *** The following sidewalk is in need of maintenance: James Ave. side - westside 113' curbing, 113'x5'x4" missing gravel covered, 121'x10'x6" drive and apron missing gravel covered. C.O. 505.12:(a)(8) (Emphasis added.). Prime Properties again appealed to the board of sidewalk appeals, which denied its appeal. Prime Properties then appealed to the board of zoning appeals. At the hearing de novo, Prime Properties contended that the board's earlier resolution operated as a bar to the present action under the doctrine of res judicata and/or collateral estoppel because the board had previously determined that C.O. 505.12 only applied to the maintenance of improved sidewalks. This construction of C.O. 505.12, it was contended, barred the present action since it was - 6 - also determined at the first hearing that there were no improved sidewalks on the James Street property. Prime Properties additionally argued that this second notice called for the construction of sidewalks, as opposed to the maintenance thereof, in derogation of the legislative mandates of R.C. Chapter 729 and C.O. Section 505.13. The city, on the other hand, argued that the board's earlier resolution was not res judicata as to the present notice of violation as the city now had photographs depicting remnants of improved sidewalks on the James Street property. The zoning board upheld the second notice of violations. In reaching its decision, the board stated as follows: *** after due consideration of the testimony submitted at the said hearing, the Board finds that the appeal should be refused for the reason that the order to the property owner ordered repairs citing Section 505.12(a)(8) which Section mandates repair if sidewalks are deemed hazardous. (Emphasis added). On October 12, 1993, Prime Properties appealed the decision of the zoning board to the Cuyahoga County Court of Common Pleas, which vacated the board's order pursuant to R.C. Chapter 2506. The court found that the decision of the zoning board was unconstitutional, unreasonable, arbitrary, capricious and unlawful. The cause is now before this court. I. - 7 - In a proceeding pursuant to R.C. Chapter 2506, a reviewing court may vacate an order of a board as unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable and probative evidence. The parties argue that the basis of the court of common pleas' decision is the doctrine of res judicata. Thus, in holding that the decision of the board was unlawful, the court never reached the merits of the board of zoning appeals' decision. Instead, it found that the same parties and issues were involved in both of the board of zoning appeal hearings and that the second hearing was thereby barred under the doctrine of res judicata. As a general proposition of law, there are two branches of res judicata: claim preclusion and issue preclusion. Under the claim preclusion branch, an earlier final judgment on the merits precludes a party from raising a claim of right or cause of action in new litigation that could have been advanced in an earlier action. Under the issue preclusion branch, parties are precluded from relitigating an issue of law or fact which was necessarily decided in a prior action even if the second suit is based on a different cause of action. Norwood v. McDonald (1943), 142 Ohio St. 299, 305-307; Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107. Although the doctrine of res judicata generally applies to judicial hearings, the Ohio Supreme Court has held that res judicata, whether issue preclusion or claim preclusion, applies to administrative proceedings if the parties had a full and fair - 8 - opportunity to litigate the matters involved and if the proceedings culminated in a definitive resolution of the matters. Superior's Brand v. Lindley (1980), 62 Ohio St.2d 133, syllabus; Consumer's Counsel v. Pub. Util. Comm. (1985), 16 Ohio St.3d 9. In the first proceeding before the board of zoning appeals, the board reviewed the superintendent of sidewalks' determination that sidewalks on the James Street property contained cracked and uneven concrete blocks in violation of C.O. 505.12(a)(1) and (2). After holding a full evidentiary hearing on the matter, the board found that there were no concrete blocks in the area designated for sidewalks on the James Street property; that C.O. 505.12 only applied to the maintenance of sidewalks improved with block; and that, therefore, the citation issued by the superintendent of sidewalks, which was upheld by the board of sidewalk appeals, could not be enforced. The city did not appeal this decision of the board to the court of common pleas; instead, the city immediately served Prime Properties with the second notice of violation for deteriorated sidewalk block in a hazardous condition, citing to C.O. 505.12(a)(8). The inevitable conclusion from these facts is that the city is barred by the issue preclusion and claim preclusion branches of the doctrine of res judicata from attempting to relitigate the issue of whether the sidewalks on the James Street property are improved; i.e., contain concrete block. - 9 - In the interest of affording finality to the decisions of administrative bodies which are left unchallenged, we hereby determine that the city lost its only opportunity to challenge the existence and condition of improved sidewalks on the James Street property when it failed to appeal the board's earlier decision. This question was directly at issue in the first hearing and was passed upon by the board, and whether the board's decision was erroneous or not, the city cannot now attempt to reopen the question. Cleveland v. Sun Oil Co. (1989), 62 Ohio App.3d 732, 736. The city also argues that the factual circumstances have changed since the first proceeding before the board so that application of res judicata to the second proceeding was improper. See Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St.3d 260 (holding that res judicata does not bar a subsequent proceeding upon a proper showing of changed circumstances). We find no merit to this argument. The city can point to no intervening changes in the factual circumstances other than to say that the photographs introduced at the first proceeding were inadequate to show the existence of concrete sidewalks on the James Street property. A failure to bring forth all available evidence at a board of zoning hearing, however, does not constitute a change in circumstances which would entitle the city to avoid the effects of res judicata. The judgment of the court of common pleas vacating the decision of the board of zoning appeals is affirmed. - 10 - It is ordered that appellee recover of appellant 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 Cuyahoga County Court of Common Pleas 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. LEO M. SPELLACY, P.J. JOSEPH J. NAHRA, J. CONCUR JUDGE DONALD C. NUGENT N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- kment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .