COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71184 BROADWAY VIDEO C/O : HAROLD BAARDA : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : CLEVELAND BOARD OF : OPINION ZONING APPEALS : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CV-304100. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Richard G. Lillie, Esq. Gretchen Holderman, Esq. 55 Public Square Illuminating Building, Suite 1331 Cleveland, OH 44113 For Defendant-Appellee: John W. Monroe, Esq. Assistant Law Director City Hall, Room 106 Cleveland, OH 44114 -2- DAVID T. MATIA, J.: Broadway Video c/o Harold Baarda ("Broadway"), appellant, appeals the decision of the Cuyahoga County Court of Common Pleas upholding the Board of Zoning Appeal's ("Board's") denial of appellant's claim. Appellant assigns five errors for review. This court, finding no error, affirms the decision of the trial court. STATEMENT OF FACTS On September 15, 1995, the City of Cleveland Division of Building & Housing issued a Notice of Violation and Order to discontinue the unauthorized use of appellant's premises as an adult book store. Broadway, appellant, then applied for a change of use building permit to operate as an adult video and magazine store with video booths. On or about December 5, 1995, the application to change use was denied because the proposal violated the distance and location requirements of Cleveland Codified Ordinance 349.04. and 349.07. Appellant filed an appeal with the Board and sought variances from these Code sections. A hearing was held on February 20, 1996 and on February 26, the Board denied the appeal for the following reasons: 1. The evidence presented establishes that the building on the site was erected in 1899; that in 1929 the property was placed in a General Retail District; that the premises is immediately adjacent to a Residential District to the east; that the conversation from a retail store to adult uses would require six additional parking spaces, which spaces cannot be provided on the premises. -3- 2. No exceptional local condition exists in this vicinity to justify Board in making the variance requested. 3. Granted the appeal would be detrimental to the general welfare of the neighbors and to the value of their properties and would be contrary to the intent and purpose of the zoning ordinances. 4. In being refused this appeal, the owner will not suffer an unreasonable hardship since he is not denied any use of the property also denied other owners in that district similarly situated. ***. The appellant appealed the decision to the Cuyahoga County Common Pleas Court pursuant to R.C. 2506. A hearing was held and on August 26, 1995, the trial court found in favor of the Cleveland Board of Zoning Appeals. Appellant timely files this appeal. II. FIRST, SECOND AND THIRD ASSIGNMENTS OF ERROR As Broadway Video c/o Harold Baarda's, appellant's, first three assigned errors contain similar issues of law and fact, we will consider them concurrently: I. THE DECISION OF THE CLEVELAND BOARD OF ZONING APPEALS IS UNCONSTITUTIONAL AND ILLEGAL. II. THE DECISION OF THE CLEVELAND BOARD OF ZONING APPEALS IS ARBITRARY, CAPRICIOUS AND/OR UNREASONABLE. III. THE DECISION OF THE CLEVELAND BOARD OF ZONING APPEALS IS UNSUPPORTED BY THE PREPONDERANCE OF SUBSTANTIAL, RELIABLE AND PROBATIVE EVIDENCE ON THE WHOLE RECORD. -4- A. ISSUE RAISED: WHETHER THE PROCEEDINGS OF THE CLEVELAND BOARD OF ZONING APPEALS DENIED APPELLANTS DUE PROCESS OF LAW. Initially we note that in these three assigned errors, Broadway complains of the determination by the Board of Zoning Appeals that a non-conforming use did not exist for the property in question. More specifically, appellant argues not only that the overwhelming weight of evidence tended to prove the existence of a non-conforming prior to the 1979 zoning code changes, but also that the Board had disregarded the laws regarding "prior use" and applied the wrong standards, i.e., a showing of difficulty or unnecessary hardship as opposed to the existence of a lawful use prior to the zoning code changes of 1979. Finally, appellant argues the determination of the Board was based upon unreliable and/or false information and inferences. However, we hold that the doctrine of res judicata bars relitigation of issues concerning the existence of a non- conforming use of the property, The doctrine res judicata involves both claim preclusion (historically called estoppel by judgment in Ohio) and issue preclusion (traditionally known as collateral estoppel). See Krahn v. Kinney (1989), 43 Ohio St.3d 103. Under "claim preclusion," a prior judgment acts as a bar to a second action on the same claim. Under a "issue preclusion," a prior judgment precludes relitigation of specific issues in a second action between the same parties or their privies. See Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193; -5- Kittrells v. A. Perry (Sept. 5, 1996), Cuyahoga App. No. 69445, unreported. In Grava v. Parkman Twp. (1995), 73 Ohio St.3d 379, 382, the Ohio Supreme Court stated: In recent years, this court has not limited the application of the doctrine of re judicata to bar only those subsequent actions involving the same legal theory of recovery as a previous action. In Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 62, 558 N.E.2d 1178, 1180, we stated: "It has long been the law of Ohio that `an existing final judgment or decree between the parties to litigation is conclusive as to all claims which were or might have been litigated in the first lawsuit'" (emphasis sic)(quoting Rogers v. Whitehall [1986], 25 Ohio St.3d 67, 69, 25 OBR 89, 90, 494 N.E.2d 1387, 1388). We also declared that "[t]he doctrine of res judicata requires a plaintiff to present every ground for relief in the first action, or be forever barred from asserting it." Id. First we find there exists privity between the parties for purposes of res judicata. In both the 1984 cause of action and the present case, the parties were the adult bookstore/videostore using the same location on Broadway Avenue and the Board of Zoning Appeals. Regarding the 1984 judgment between the parties, Broadway argued it had established a non-conforming use of the property as an adult mini-motion picture theater and book store prior to the enactment of a zoning ordinance prohibiting the operation of such establishments within 1,000 feet from a Resident Use District, Cleveland Ordinance Code 343.11. This court concluded "[w]ithout -6- the issuance of the occupancy permit, no nonconforming use was established." Accordingly, we find the re-litigation on issues regarding the existence of a non-conforming use are barred by the doctrine of res judicata. Therefore, appellant's first, second and third assignments of error are not well taken as they relate to the existence of a non-conforming use. See, also, Master Realty, Inc. v. Chester Township Board of Trustees (December, 31, 1996), Geauga App. No. 95-G-L928, unreported. However, appellant also argued the proceeding of the Board of Zoning Appeals violated and/or denied its due process rights. Specifically, appellant argues the Board did not act objectively and without bias or prejudice. In support, appellant cites to the fact that the Board contacted members of the community in an effort to drum up support and/or evidence in favor of the City's position. Furthermore, appellant argues the Board failed to consider evidence submitted by appellant establishing a non- conforming use. Finally, appellant argues the Board considered unreliable evidence concerning the criminal statistics of the area in general and crude estimates in establishing a violation of the distance requirements. Appellant's first assignment of error concerning appellant's due process rights is not well taken. B. STANDARD OF REVIEW: ADMINISTRATIVE PROCEEDINGS AND DUE PROCESS. -7- The Due Process clause of the Fourteenth Amendment to the United States Constitution is, to some extent, applicable to hearings before administrative agencies. See State ex rel. Finley v. Dusty Drilling Co. (1981), 2 Ohio App.3d 323. It is well established that an unbiased tribunal is a constitutional necessity in a quasi-judicial hearing, and a denial of the same is a denial of due process. As the court stated in Sorin v. Bd. of Edn. (1974), 39 Ohio Misc. 108, citing 2 American Jurisprudence 2d 166, Administrative Law, Section 353: In administrative proceedings of a judicial or quasi-judicial, the liberty and property of the citizen must be protected by the observance of the rudimentary requirements of fair play. Whether a person has been deprived of due process of law by the action of an administrative agency depends upon whether it acted contrary to the statutes and rules and with arbitrary and unreasonable discrimination. See, also, Baughman v. Ohio Dept. of Public Safety Motor Vehicles Salvage (March 7, 1997), Scioto App. No. 96CA2410, unreported. Finally, the Ohio State Bd. of Pharmacy v. Poppe (1988), 48 Ohio App.3d 222, 229-230, the court held that there must be evidence of bias or prejudice in the manner in which an administrative hearing is conducted in order to support a denial of due process. See, also, Kiger v. Albon (1991), 76 Ohio App.3d 301. C. THE PROCEEDINGS OF THE CLEVELAND BOARD OF ZONING APPEALS DID NOT DENY APPELLANT DUE PROCESS OF LAW. After a review of the hearing transcript and the record, we find nothing which would establish and/or indicate bias or -8- prejudice on the part of the Board's members. Appellant was represented by counsel and was permitted to give opening statement, present evidence through witnesses and exhibits, cross-examine the City's witnesses and present closing argument. Appellant argues a letter written by a legal assistant addressed to the Chairperson of the Board demonstrates collusion between the Board and the surrounding community. However, nothing in the letter itself evinces collusion on the part of the Board and the surrounding neighbors. More importantly, nothing in the record demonstrates the Board failed to weigh all the evidence before it when it rendered its decision. See, Buaghman, supra. For these reasons, appellant's first assignment of error is not well taken. III. FOURTH ASSIGNMENT OF ERROR Appellant, Broadway, states as its fourth assignment of error: IV. CLEVELAND ORDINANCE 347.07 IS UNCONSTITUTIONAL. A. ISSUE RAISED: WHETHER CLEVELAND CODIFIED ORDINANCE 347.07 IS UNCONSTITUTIONAL. Appellant argues Cleveland Codified Ordinance 347.07 is unconstitutionally overbroad and vague. Specifically, appellant argues the language used by the legislation in drafting the ordinance encompasses a plethora of situations where a person could be in violation of the ordinance -- many of those situations not being reasonably ascertainable by a person of ordinary intelligence. For example, appellant cites to the fact -9- that the ordinance does not differentiate between commercial displays and private displays thereby prohibiting a bachelor party where x-rated videos and/or magazines are disseminated. Another example, appellant argues, is that a museum and/or college showing topless women in an exhibition would be in violation of the ordinance. Moreover, appellant argues the language of the ordinance is unconstitutionally vague as a time, place and manner restriction. Appellant argues since "time, place and manner" ordinances cannot completely ban adult uses in certain districts, the ordinance is unconstitutional. Finally, appellant argues the ordinance furthers no substantial governmental interest as it has the effect of placing adult uses closer to residential districts. Appellant's fourth assignment of error is not well taken. B. STANDARD OF REVIEW: CONSTITUTIONALITY OF ZONING ORDINANCE. The power of a municipality to establish zones, to classify property and to determine land use policy is a legislative function with which a court may not interfere unless the power is exercised in such an arbitrary, confiscatory or unreasonable manner as to be in violation of constitutional guarantees. Franchise Developers, Inc. v. Cincinnati (1987), 30 Ohio St.3d 28; Rispo Invest. Co. v. Seven Hills (1993), 90 Ohio App.3d 245. It is firmly established that legislation enacted by a municipality are presumed to be valid and the enacting body is presumed to have acted constitutionally. Xenia v. Schmidt (1920), 101 Ohio St. 437; Valley Auto Lease of Chagrin Falls, -10- Inc. v. Auburn Twp. Bd. of Zoning Appeals (1988), 38 Ohio St.3d 184. This presumption applies to municipal charter provisions. State ex rel. Vana v. Maple Hts. City Council (1990), 54 Ohio St.3d 91. As the party challenging the constitutionality of a zoning ordinance, appellant has the burden of demonstrating that the regulation is unconstitutional and/or unreasonable. Brown v Cleveland (1981), 66 Ohio St.2d 93; Northampton Bldg. Co. v. Sharon Twp. Bd. of Zoning Appeals (1996), 109 Ohio App.3d 193. As the Ohio Supreme Court stated in Willott v. Beachwood (1964), 175 Ohio St. 557, 560: The legislative, not the judicial, authority is charged with the duty of determining the wisdom of zoning regulations, and the judicial judgment is not to be substituted for the legislative judgment in any case in which the issue *** is fairly debatable. More recently, the court set forth the two-pronged analysis to be used when addressing the constitutionality of a zoning ordinance in Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223. There, the court held in its syllabus "A party who attacks a municipal zoning ordinance on constitutional grounds must prove, beyond fair debate, both that the enactment deprives him or her of an economically viable use and that it fails to advance a legitimate governmental interest. C. APPELLANT HAS FAILED TO DEMONSTRATE CLEVELAND CODIFIED ORDINANCE 347.07 IS UNCONSTITUTIONAL. -11- Applying the standards set forth above, we will address the constitutionality of Cleveland Codified Ordinance 347.07 which states in relevant part: (a) Definitions. As used in this Zoning Code: (1) Specified sexual activities" means: A. Human genitals in a state of sexual stimulation or arousal; B. Acts of human masturbation, sexual intercourse or sodomy; C. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast. (2) "Specified anatomical areas" means: A. Less than completely and opaquely covered: (1) human genitals, pubic region, (2) buttock and (3) female breast below a point immediately above the top of the areola, and B. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. (3) "Adult Book Store" means an establishment having a substantial and significant portion of its stock in trade in books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or specified anatomical areas". * * * (4) "Adult mini motion picture theatre" means an enclosed building with a capacity of less than fifty persons used for presenting material distinguished or characterized by an emphasis on material depicting, describing or relating to "specified sexual activities" of "specified anatomical areas" for observation by patrons therein. -12- * * * (b) Location. Uses defined in divisions (a)(3) through (a)(6) above are hereby designated "Adult Entertainment" uses. Where permitted in a use district, adult entertainment uses are subject to the following location restrictions. (1) No adult entertainment use shall be established within 1,000 feet of a residence district. (2) No two adult entertainment uses shall be located in the same premises or on the same lot. (3) No adult entertainment use shall be established within 1,000 feet of another existing adult entertainment use, pool or billiard hall, or video/pinball arcade. * * * Generally, a zoning ordinance is not confiscatory so long as the owner is not deprived of the reasonable use of his or her property. Valley Auto lease of Chagrin Falls, Inc. v. Auburn Twp. Bd. of Zoning Appeals (1988), 38 Ohio St.3d 184. When, however, a zoning ordinance denies an owner all uses except those which are highly unlikely or practically impossible under the circumstances, it is impermissibly restrictive. Id. at 186; Gerijo, supra at 228. In this case, the ordinance at issue does not preclude the use of the property and/or allows the owner of said property an economical feasible use of said property. Stated differently, the restrictions do not render the land valueless. See Valley Auto Lease of Chagrin Falls, Inc., supra. Finally, the record is devoid of any evidence that appellant -13- proposed and/or attempted a reasonable, economically viable use of said property which would be prohibited by said ordinance. For these reasons, we find appellant has failed to meet its burden in establishing the zoning ordinance denies appellant all uses except those which are highly unlikely or practically impossible under the circumstances. Regarding the second prong of the analysis concerning the legitimate governmental interest of the ordinance, we find the doctrine of res judicata bars relitigation of this issue. Grava, supra. In the 1984 cause of action referred to above, the trial court stated in its "Findings of Fact and Conclusions of Law": C.O. 343.11 [the predecessor provision to 347.07] bears a rational relation to the public health, safety, morals and general welfare, insofar as it prohibits the operation of facilities such as that of the Plaintiff within 1,000 feet of a residential area. Moreover, a similar conclusion was reached by this court in 16809 Euclid Corp., et al. v. Board of Zoning Appeals (February 25, 1982), Cuyahoga App. No. 43715, unreported. Finally, we do not agree with appellant that the ordinance would prohibit a bachelor party and/or a display at a local college/museum. None of appellant's examples would fall under the definition "Adult Entertainment Uses" as defined by said ordinance. For these reasons, we find that appellant failed to meet its burden in demonstrating Cleveland Codified Ordiance 347.07 is unconstitutional. Appellant's fourth assignment of error is not well taken. -14- IV. FIFTH ASSIGNMENT OF ERROR Broadway Video c/o Harold Baarda's, appellant's, states as its fifth assignment of error: V. THE WITHIN ACTION, AS INTENTIONALLY BROUGHT BY THE CITY OF CLEVELAND BEFORE THE CLEVELAND BOARD OF ZONING APPEALS IS BARRED BY THE DOCTRINE OF LATCHES. -15- A. ISSUE RAISED: WHETHER APPELLANT HAD BEEN MATERIALLY PREJUDICED BY THE DELAY. Appellant argues a fifteen year delay in the City's attempts to enforce a zoning violation that the City knew or should have known about is unreasonable and inexcusable and should therefore be barred by the doctrine of laches. Appellant further agues that it was prejudiced in two ways: 1) after being issued a permit in 1980, appellant invested time and money into the business and 2) due to the approximately fifteen year delay, the actual permit issued to appellant in 1980 (which is vital to the case) has been lost and/or destroyed. Appellant's fifth assignment of error is not well taken. B. STANDARD OF REVIEW: DOCTRINE OF LACHES. The Ohio Supreme Court has stated that "laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party. It signifies delay independent of limitation in statutes. It is lodged principally in equity jurisprudence." Connin v. Bailey (1984), 15 Ohio St.3d 34, 35, quoting Smith v. Smith (1957), 107 Ohio App. 440. Delay itself does not rise to the defense of laches, and in order to invoke the doctrine it must be demonstrated that the person claiming the defense has been materially prejudiced by the delay of the person asserting the claim. Id., Seegert v. Zietlaw (1994), 95 Ohio App.3d 451, 457; State ex rel. N. Olmstead Fire Fighters Assn. v. N. Olmstead (1992), 64 Ohio St.3d 530, 536-537. Moreover, material prejudice will not be inferred from a mere lapse of time. State ex rel. -16- Madden v. Windham Exempted Village School Dist. Bd. of Edn. (1989), 42 Ohio St.3d 86. C. APPELLANT'S FAILURE TO DEMONSTRATE MATERIAL PREJUDICE PROHIBITS THE USE OF THE DEFENSE OF LACHES. In this case, although appellant claims to have suffered from years of investing time and has experienced financial loss, appellant has failed to demonstrate and/or support these assertions. The record is devoid of any financial loss to appellant resulting from appellee's delay in asserting their claim. Again, the mere lapse of time is not prejudicial. Madden, supra. Moreover, appellant has failed to substantiate how the loss of the permit that was supposedly issued to appellant in 1980 would have been important in the instant action. Again, the issue regarding the existence of a valid use of the property was settled in the 1984 cause of action with any new claim concerning the existence of said use being barred by the doctrine of res judicata. Because appellant has failed to substantiate any material prejudice with specific evidence, we find that appellant cannot successfully invoke the defense of laches. Cf. State ex rel. White v. Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45. Broad assertions of prejudice will not suffice. See State ex rel. Casale v. McLean (1991), 58 Ohio St.3d 163. Defendant-appellant's fifth assignment of error is not well taken. Judgment affirmed. -17- 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 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. JAMES D. SWEENEY, C.J. and ANN DYKE, J., CONCUR. DAVID T. MATIA JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .