COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69082 BOARD OF BUILDING AND ZONING : APPEALS OF THE CITY OF HIGHLAND : HEIGHTS, OHIO : : Plaintiff-appellant : : JOURNAL ENTRY vs. : and : OPINION JOSEPH GRANDE : : Defendant-appellee : : : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 15, 1996 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 272,319 JUDGMENT : REVERSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellant: L. JAMES JULIANO, JR. Attorney at Law 50 Public Square 2750 Terminal Tower Cleveland, Ohio 44113-2287 For defendant-appellee: MICHAEL T. GAVIN ELI MANOS ANTHONY J. COYNE Attorneys at Law 55 Public Square, #2150 Cleveland, Ohio 44113-1994 TIMOTHY E. McMONAGLE, J.: The plaintiff-appellant, City of Highland Heights Board of Zoning Appeals, appeals from the judgment of the Cuyahoga County Court of Common Pleas reversing its decision that denied a vari- ance for a nonconforming structure. In February, 1993, the appellee, Joseph Grande, submitted an application to the City of Highland Heights Building Department for a permit to erect a temporary 21-foot by 66-foot by 18-foot in height "Garden Mart Duplex" on his property located at 5223 Wilson Mills Road in the City of Highland Heights, where he operates a retail nursery. Mr. Grande's property is located in an area zoned for one-family residential use, but the nursery constituted a legal 1 nonconforming use. The purpose of the Garden Mart Duplex is to protect plants from exposure to the elements. The building department issued a permit for the erection of the Garden Mart Duplex at the end of March, 1993. The permit required removal of the Garden Mart Duplex at the end of July, 1993. 1 A nonconforming use is a lawful use existing at the time a zoning ordinance prohibiting or restricting the prior use is enacted or amended. Akron v. Chapman (1953), 160 Ohio St. 382. - 3 - At the end of July, 1993, Mr. Grande failed to remove the Garden Mart Duplex. Instead, in March, 1994, Mr. Grande filed a request for a variance and hearing with the City of Highland Heights Planning and Zoning Commission seeking to permanently maintain the Garden Mart Duplex. The zoning board addressed Mr. Grande's cause at public meetings in March and April, 1994. The zoning board noted in minutes of its meetings that the erection of the Garden Mart Duplex was an expansion of a prior legal nonconforming use. The zoning board also noted that there were already two permanent structures on the parcel; to wit: a barn and a green house. The minutes further reflect that Mr. Grande advised the zoning board that he was no longer using the barn or greenhouse in conjunction with his nursery business because they were in need of great repair but that he had no intention of removing either the barn or the green house from the property. Mr. Grande apparently also told the zoning board that he could move the Garden Mart Duplex further back on the parcel but that this would require extensive restructuring. The zoning board denied Mr. Grande's request for a variance. Mr. Grande appealed the zoning board's decision to the city's board of building and zoning appeals and asked for a reversal because of undue hardship caused by the zoning board's refusal to grant a variance for the maintenance of the Garden Mart Duplex. At a hearing, Mr. Grande was given the opportunity to present testimony and evidence in support of his request. Mr. Grande - 4 - presented the board with a copy of the opinion rendered in Hunziker v. Grande (a case brought by the city against Mr. Grande's father, his predecessor in interest), which he insisted prohibited the board from depriving him of a variance. According to Mr. Grande, the court's decision in Hunziker gave the owners of this legal nonconforming use parcel carte blanche to undertake all activities on the property reasonably necessary to operate a nur-sery business, which he insisted included the construction of a Garden Mart Duplex to protect plants. The appeal board reaffirmed the zoning board's decision deny- ing the variance on the basis that the Garden Mart Duplex was a nonconforming structure which impermissibly extended or expanded a prior nonconforming use. Mr. Grande appealed this decision of the appeal board to the court of common pleas for administrative review pursuant to R.C. Chapter 2506. The common pleas court reversed the decision of the board of zoning appeals as unconstitutional, illegal, arbitrary and capricious and entered judgment in favor of Mr. Grande. The following conclusions of law were handed down by the 2 common pleas court following entry of its judgment: 1. *** [A] similar action was brought by the City of Highland Heights to enjoin the use of the property as a nursery and that in 1982 the 2 For a discussion of whether a court has a duty to issue findings of fact and conclusions of law in a zoning appeal case see Warrensville Ctr., Inc. v. Warrensville Hts. (1984), 20 Ohio App.3d 220, which holds that a common pleas court has no duty to issue findings of fact and conclusions of law in zoning appeal cases. - 5 - Cuyahoga County Court of Appeals [in Hunziker v. Grande (1982), 8 Ohio App.3d 87] ruled that the City shall not enjoin the appellant from using the property as a nursery. 2. Common Pleas Judge Matia's conclusion of law in the prior action concluded the following: * * * 6. The construction of a zoning resolu- tion should not be such as to prohibit all changes of non-conforming use. (Stewart v. Pedigo[,] 2 Ohio App. 2d 53 (1965). Therefore, the property owners are entitled to undertake all activities reasonably necessary to conduct a nursery business, including advertising; 7. That the zoning ordinances as applied to defendants' property, to the extent that they prohibit defendants from oper- ating a nursery, have no relation to the health, welfare, safety and morals of the community and would deprive the de- fendants of their property without due process of law ***. 3. The [board] is barred by the doctrines of res judicata and collateral estoppel from interfering with appellant in protecting his plants from the elements through the garden mart structure. 4. The [board] is without authority to regu- late the manner in which the nursery is oper- ated absent a specific ordinance or charter section authorizing an officer or agency to make and enforce restrictions on the use of the subject property. 5. The record fails to show that the restric- tion on [Grande's] nursery to bar the use of a garden mart over annual plants substantially advances a legitimate state interest. 6. Based upon these Findings of Fact and Con- clusions of Law, this court finds that the decision of the City of Highland Heights Board of Building and Zoning Appeals was un- - 6 - constitutional, illegal, arbitrary and capri- cious. This court further orders [the Board] to refrain from interfering in appellant's use of the subject property as a nursery and garden center. (Citations omitted.) This appeal followed. I. The board raises the following assignments of error for this court's review: I. THE TRIAL COURT ERRED AS A MATTER OF LAW, PREJUDICIAL TO THE CITY, BY HOLDING THAT THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL BARRED THE CITY FROM REGULATING APPELLEE'S NONCONFORMING BUILDING. II. THE TRIAL COURT ERRED AS A MATTER OF LAW, PREJUDICIAL TO THE CITY, BY HOLDING THAT THE ZONING CODE OF THE CITY OF HIGHLAND HEIGHTS DOES NOT AUTHORIZE THE CITY TO MAKE AND ENFORCE RESTRICTIONS ON APPELLEE'S NONCONFORMING BUILDING. III. THE TRIAL COURT ERRED AS A MATTER OF LAW, PREJUDICIAL TO THE CITY, BY HOLDING THAT THE CITY HAD THE BURDEN OF PROVING THAT APPELLEE WAS NOT ENTITLED TO A VARIANCE. IV. THE TRIAL COURT ERRED AS A MATTER OF LAW, PREJUDICIAL TO THE CITY, BY HOLDING THAT THE CITY'S RESTRICTION ON APPELLEE'S NONCONFORMING BUILDING BEARS NO SUBSTANTIAL RELATION TO LEGITIMATE GOVERNMENT INTERESTS AND IS UNCONSTITU- TIONAL. II. - 7 - First, we agree with the board's assertion that the common pleas court erred in holding that this court's decision in Hunziker v. Grande, supra, as well as the lower court's Findings of Fact and Conclusions of Law, were res judicata to the question of whether the city could prohibit the erection of the Garden Mart Duplex on Mr. Grande's property. The doctrine of res judicata provides that "a valid final judgment rendered upon the merits bars all subsequent actions based upon any claim arising out of the transaction or occurrence that was the subject matter of the previous action ***." Grava v. Parkman (1995), 73 Ohio St.3d 379, syllabus. In Hunziker, the city sought an injunction to prevent Grande Nursery from expanding its nursery business, a legal nonconforming use, to include retail sales. It was the position of the city that retail sales did not occur on the property at the time of the passage of the applicable zoning ordinances and, therefore, it would be an impermissible expansion of a legal nonconforming use should they now be allowed. See Hunziker, supra, 8 Ohio App.3d 87, 89. The court found that retail sales had occurred on the property prior to the passage of the zoning ordinances and that a mere increase in the volume of retail sales, alone, did not constitute an unlawful expansion or extension of a nonconforming use. In contrast, the issue in the present case is whether a new, nonconforming building or structure could legally be erected on - 8 - Grande's parcel under the city's zoning ordinances. This issue was never litigated, and, therefore, res judicata is not a bar. The board's first assignment of error is sustained. III. We also agree with the board that the trial court erred in finding that the city was without authority to regulate the ex- pansion and/or extension of nonconforming use property. Mr. Grande contends that the Garden Mart Duplex is not a building or structure within the meaning of the city's planning and zoning ordinances but, rather, is akin to personal property and that, therefore, the city had no authority under its ordinances to prohibit construction and use of the Garden Mart Duplex. W e begin our analysis with Section 1101.03 of the city's planning and zoning ordinances, which defines the terms "structure" and "building" as follows: (a) "Structure" means that which is con- structed, located more or less permanently on the ground or attached permanently to some- thing located on the ground: (1) Including buildings, barriers, bridges, fences, outdoor seating facili- ties, platforms, pools, poles, tanks, towers, roadside stands, sheds and signs, and (2) Excluding tents, trailers and other vehicles whether on wheels or other sup- ports. (b) "Building" means a structure used as a shelter or roofed enclosure for persons, ani- mals and/or property. This term shall be used - 9 - synonymously with "structure" unless otherwise noted, and shall be construed as if followed by the words "or parts thereof". The record reveals that the Garden Mart Duplex is a dome-like edifice supported by a metal frame and covered with clear plastic. It was constructed to house and protect plants. It is secure enough to remain standing year round, and it cannot be moved without extensive restructuring. These facts support the conclusion that the Garden Mart Duplex is a building and/or struc- ture within the meaning of the city's zoning ordinances. Having determined that the Garden Mart Duplex can be quali- fied as a building or structure as those terms are defined in the city's zoning ordinances, we must now consider whether the city's ordinances prohibit the construction of such a building or struc- ture. Our review of the city's ordinances demonstrates that even though they do not expressly prohibit the construction of addi- tional buildings or structures on property used for nonconforming uses, new construction may be considered an enlargement or expan- sion of a nonconforming use. Section 1133 of the city's ordi- nances provides that "[n]o such nonconforming use shall be en- larged or increased, or structurally altered ***." Thus, the board had authority under its ordinances to deny the request for a variance. Therefore, the court of common pleas erred in reversing the decision of the board on the basis that it was without authority to prohibit construction and use of the Garden Mart Duplex. - 10 - The second assignment of error is sustained. IV. Further, we agree with the board that it was Mr. Grande who bore the burden of proving his entitlement to a variance. See Duncan v. Middlefield (1986), 23 Ohio St.3d 83; Kisil v. Sandusky (1984), 12 Ohio St.3d 30. The common pleas court erred to the extent that it imposed the burden of proof on the board. The third assignment of error is sustained. V. Finally, we agree with the board that the trial court erred in holding that the city's entire zoning scheme is unconstitutional as applied to Mr. Grande. In addressing the constitutionality of properly enacted zoning ordinances, courts must presume their validity. Brown v. Cleveland (1981), 66 Ohio St.2d 93; Hudson v. Albrecht, Inc. (1984), 9 Ohio St.3d 69. A zoning ordinance will be found unconstitutional as applied only if its requirements are clearly arbitrary and unreasonable and are unrelated to the public health, safety or general welfare. Consolidated Management, Inc. v. Cleveland (1983), 6 Ohio St.3d 238. The burden of proving that a zoning ordinance is unconstitutional is on the person making such an assertion. Leslie v. Toledo (1981), 66 Ohio St.2d 488. Further, "a person wishing to attack an ordinance as unconstitutional *** - 11 - may not rely on mere allegations or conclusions of law that the ordinance is not based on health, safety, morals or general welfare, but must introduce competent and relevant evidence to support his position ***." Pepper Pike v. Landskroner (1977), 53 Ohio App.2d 63, 70. In this case, Mr. Grande did not meet his burden of estab- lishing that the city's zoning ordinances are unconstitutional as applied to his property. He failed to present evidence that the subject ordinances are arbitrary and unreasonable as applied to him. Similarly, Mr. Grande presented no evidence that the subject ordinances are unrelated to the public health, safety or general welfare. There is a legitimate governmental interest in regulat- ing nonconforming uses and structures. Hunziker v. Grande, supra at 90; see, also, Akron v. Klein (1960), 171 Ohio St. 207. The final assignment of error is sustained. VI. For the foregoing reasons, the judgment of the court of common pleas reversing the decision of the board of zoning appeals is hereby reversed. - 12 - This cause is reversed. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execu- tion. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, P.J. and ANN DYKE, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .