Schomaeker v. First National Bank of Ottawa

421 N.E.2d 530, 66 Ohio St. 2d 304, 20 Ohio Op. 3d 285, 1981 Ohio LEXIS 514

• Court: Ohio Supreme Court
• Decided: June 3, 1981
• Docket: No. 80-885
• Status: Published

Opinions

Clifford F. Brown, J.

In order to determine whether the Court of Appeals ruled correctly when it held the order of the planning commission invalid, we consider, seriatim, the power of villages to enact zoning ordinances, the authority granted by the Ottawa Zoning Ordinance, and the effect of the action by the planning commission.

We conclude that the order of the commission effectively granted a use variance, as authorized in the Ottawa Zoning Ordinance, and was not rezoning. We further hold that plaintiff was not entitled to declaratory judgment relief in the common pleas court, because such an action does not lie when a direct appeal to the common pleas court pursuant to R. C. Chapter 2506 is available. In any event, plaintiff was collaterally estop-ped from raising the propriety of a use variance, given a prior judgment necessarily adjudicating this issue.

To decide the validity of this use variance, we first explore the power of municipalities, such as the village of Ottawa, to enact and enforce zoning ordinances.

Section 3, Article XVIII of the Ohio Constitution, confers upon municipalities “authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations as are not in conflict with general laws.” R. C. 713.01 et seq. authorize the creation by a village legislative authority of a planning commission empowered to frame zones or districts for that village. Such districts may, among other things, exclude business and trade from residential areas, pursuant to the police power. Euclid v. Ambler Realty Co. (1926), 272 U. S. 365. Additionally, R. C. 713.11 empowers the village legislative authority to delegate to the planning commission or other administrative board the power to administer the details of the zoning regulations, including “the power***to permit exceptions to and variations from the district regulations in the classes of cases or situations specified in the regulations* * *.”

This broad authorization in R. C. 713.11 to grant variances encompasses both “area” and “use” variances. A use variance permits land uses for purposes other than those permitted in the district as prescribed in the relevant regulation. An example of a use variance is a commercial use in a residential district. Area variances do not involve uses, but rather structural or lot restrictions. An example of an area variance is relaxation of setback lines or height restrictions. See 82 American Jurisprudence 2d 792-793, Zoning and Planning, Section 256.

Given the broad grant of power in R. C. 713.11 to allow use and area variances, a municipal corporation is not required to delegate to its planning commission the full power authorized by statute. 10 Ohio Jurisprudence 3d 488, Building, Zoning and Land Controls, Section 280. Thus, some municipal ordinances grant the zoning board power to interpret the regulations, but not to grant variances. Kaufman v. Newburgh Heights (1971), 26 Ohio St. 2d 217. Other municipal ordinances specifically prevent the zoning board from effecting changes in the uses permitted in any district. State, ex rel. Davis Investment Co., v. Columbus (1963), 175 Ohio St. 337; McCloud v. Woodmansee (1956), 165 Ohio St. 271.

The zoning ordinance of the village of Ottawa does not differentiate between use and area variances. Section 402.3 of such ordinance provides in part:

“(a) The Planning Commission shall have the power, upon application, to authorize variances from the provisions and requirements of this Zoning Code which will not be contrary to the public interest or the intent and purpose of this Zoning Code, but only where, owing to special conditions pertaining to a specific piece of property, the strict application of provisions or requirements of this Zoning Code would cause undue or unnecessary hardship.”

U * * *

“(c) In modifying the literal interpretation and strict application of the provisions of this Zoning Code and in authorizing a variance therefrom, the Planning Commission may impose such requirements and conditions regarding the location, character and other features of the proposed uses or structures as he may deem necessary in order to carry out the intent and purpose of this Zoning Code, and to safeguard otherwise the public health, safety, convenience and general welfare.”

The ordinance in question here clearly indicates a grant of the power to allow both use and area variances. First, the term variance is used without any modifier. Second, paragraph (c) anticipates the grant of use and area variances, when, in authorizing the imposition of special conditions when granting a variance, it refers to “the proposed uses or structures.” Finally, the ordinance establishes guidelines for the grant of variances, again without specifying use or area. These guidelines are considerations inherently applicable to requests either for use or area variances.

Paragraph (b) of Section 402.3 of the Ottawa Zoning Ordinance provides:

“No such variance shall be authorized by the Planning Commission unless the Planning Commission finds that all the following facts and conditions exist:

“(1) Exceptional or extraordinary circumstances or conditions applying to the subject property that do not apply generally to other properties in the same District or Vicinity.

“(2) The special circumstances or conditions do not result from actions of the property owner or any of his predecessors in title.

“(3) Such variance is necessary for the preservation and enjoyment of a substantial property right of the applicant possessed by owners of other properties in the same District or Vicinity.

“(4) The authorization of such variance will not be materially detrimental to the public welfare or injurious to property in the District or Vicinity in which the property is located.”

The planning commission found all four of the conditions specified in Section 402.3(b) to exist. These findings are contained in the record of proceedings before the commission. We find that the record supports these findings.

In granting the use variance to the bank, the planning commission was executing and administering the ordinance,of its legislative authority, the village council. The granting of the use variance is not inconsistent with the zoning ordinance, since it is expressly authorized therein, given the existence of the stated prerequisite conditions.

Plaintiff-appellee contends that the action of the planning commission constituted the exercise of a legislative function, that is, rezoning. One of the fundamental principles of zoning establishes that the planning commission “is limited by its properly delegated powers and that it cannot exercise legislative functions so as by the guise of a variance to actually change the law regulating the character and use of property in specified zones. No proposition of zoning law has been better settled by the courts.” 3 Yokley, Zoning Law and Practice (4 Ed.), 342, Section 21-9. See, also, State, ex rel. Synod of Ohio, v. Joseph (1942), 139 Ohio St. 229, 241.

A use variance or exception to permit a commercial owner to extend a parking lot into an adjoining area that is zoned for residential purposes is valid where the zoning agency complies with the zoning ordinance which establishes definite criteria for the variance or exception. A zoning board or planning commission which is given the power to grant variances is vested with a wide discretion with which the courts will not interfere unless that discretion is abused. Whether a hardship or exceptional or extraordinary circumstances exist to justify the issuance of a variance is a question of fact to be determined by the zoning board or commission. L. & M. Investment Co. v. Cutler (1932), 125 Ohio St. 12; Bieger v. Moreland Hills (1965), 3 Ohio App. 2d 32; Mahrt v. First Church of Christ, Scientist (1956), 75 Ohio Law Abs. 24, 142 N.E. 2d 678; Neithamer v. Heyer (1931), 39 Ohio App. 532; Upper Leacock Township v. Zoning Hearing Board (1978), 481 Pa. 479, 393 A. 2d 5; 1 Metzenbaum, Law of Zoning and Practice (4 Ed.), 230, 263, 280, 281, 296, Sections 20-2(k), 21-2, 21-5, 21-6; 4 Yokley, supra, at 338, Section 25-14.

It is quite apparent that the use variance granted by the planning commission here was precisely what it purported to be. A use variance is intended to permit flexibility in the application of an ordinance to a particular piece of property. The reasoning for delegation of this power to a board of zoning appeals was expressed by this court, as follows:

“***It is now generally recognized by the courts that in the adoption of modern methods of zoning, since they may seriously affect the quality of the owner’s title and may jeopardize that absolute freedom in the use of his property which he previously had enjoyed, the owner may be safeguarded from the too severe placing of zoning restrictions upon it. He is frequently given an anchor to the windward which may relieve him from the strict application of a zoning restriction placed upon his property if it should be found that unnecessary hardships would ensue in carrying out the strict letter of the zoning provision***.” L. & M. Investment Co. v. Cutler, supra, at page 19; see 1 Metzenbaum, Law of Zoning, supra, at pages 695-696.

Nor is the grant of a use variance an impermissible delegation of legislative power. This court, long ago, pinpointed the critical distinction at issue here:

“The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” Cincinnati, W. & Z. R.R. Co. v. Commrs. of Clinton County (1852), 1 Ohio St. 88-9; see Metzenbaum, supra, at 694. See, also, Mobil Oil Corp. v. Rocky River (1974), 38 Ohio St. 2d 23, 31. (Corrigan J., concurring opinion.)

The action of the Ottawa Planning Commission in granting a use variance did not constitute zoning or rezoning, a legislative function. Forest City Enterprises v. Eastlake (1975), 41 Ohio St. 2d 187; Gray v. Trustees of Monclova Twp. (1974), 38 Ohio St. 2d 310; Donnelly v. Fairview Park (1968), 13 Ohio St. 2d 1; Tuber v. Perkins (1966), 6 Ohio St. 2d 155. It was a valid grant of a use variance, an exercise of administrative or quasi-judicial power.

There is a second reason to uphold the legality of the use variance for Inlot No. 19. The plaintiff-appellee was not entitled to declaratory judgment relief because she failed to exhaust her administrative remedies. Plaintiff did not appeal the granting of the use variance by the planning commission to the common pleas court as provided in R. C. 2506.01; by the village of Ottawa Zoning Ordinance, No. 944, Section 405.2(c), enacted February 23, 1976; and as provided in the planning commission’s general rules and regulations passed January 24, 1977, in Sections 1 and 7 thereof.¹

Appellee explains this omission by contending that she was at no time party to the administrative procedure which resulted in the use variance and therefore had no standing to appeal to the common pleas court from the planning commission’s order.

The argument that plaintiff had no standing to make an administrative appeal pursuant to R. C. Chapter 2506 in the common pleas court must fail. In an analogous situation this court, in Roper v. Bd. of Zoning Appeals (1962), 173 Ohio St. 168, held:

“A resident, elector and property owner of a township, who appears before a township Board of Zoning Appeals, is represented by an attorney, opposes and protests the changing of a zoned area from residential to commercial, and advises the board, on the record, that if the decision of the board is adverse to him he intends to appeal from the decision to a court, has a right of appeal to the Common Pleas Court if the appeal is properly and timely made pursuant to Sections 519.15 and 2506.01 to 2506.04, inclusive, and Chapter 2505, Revised Code.”

In order to bring an R. C. Chapter 2506 direct appeal of an administrative order, plaintiff must be a person directly affected by the decision of the planning commission. Since the order affected and determined plaintiffs rights as a property owner, and she had previously indicated her interest, both by a prior challenge to the grant of a certificate of occupancy and by her presence with counsel at the hearing on the variance, plaintiff is properly within that class of persons with standing to bring a direct appeal pursuant to R. C. Chapter 2506.² See, also, Duncan v. Louisville & Jefferson Co. Planning & Zoning Comm. (Ky. 1951), 238 S.W. 2d 127; 4 Yokley, Zoning Law & Procedure 183, 186, Section 24-2. The decision of a planning commission granting a use variance is made in a judicial capacity, and the reasonableness of such decision is subject to appeal pursuant to R. C. 2506.01 and 2506.04. In re Appeal of Clements (1965), 2 Ohio App. 2d 201; In re Appeal of McDonald (1963), 119 Ohio App. 15, 17; Shaker Coventry Corp. v. Bd. of Zoning Appeals (1962), 115 Ohio App. 472; 2 Ohio Jurisprudence 3d 339, Administrative Law, Section 156.

Given the availability of an R. C. Chapter 2506 direct appeal, a property owner, such as plaintiff, adversely affected by the granting of the use variance to a contiguous property owner may not challenge the granting of such use variance in a declaratory judgment action where such property owner does not assert the invalidity or unconstitutionality of the ordinance. Gates Mills Investment Co. v. Pepper Pike (1975), 44 Ohio St. 2d 73; Driscoll v. Austintown Assoc. (1975), 42 Ohio , paragraphs one and four of the syllabus; Standard Oil Co. v. Warrensville Hts. (1976), 48 Ohio App. 2d 1.

Plaintiff in the present declaratory judgment action does not attack the validity or constitutionality of the Ottawa Zoning Ordinance in any respect, but seeks relief essentially on the basis that the granting of the use variance was against the weight of the evidence and contrary to law. One of the issues which emerged was whether the planning commission granted a use variance or legislatively rezoned Inlot No. 19. This falls far short of attacking the validity or constitutionality of the zoning ordinance.

A third reason the bank should prevail is that in prior litigation brought by the plaintiff in this matter (case No. 77-104, Court of Common Pleas of Putnam County), the trial court on November 25, 1977, enjoined defendant bank from developing Inlot No. 19 as a parking lot as follows:

“***Plaintiff is entitled to an injunction which enjoins Defendant from constructing a parking lot on the parcel of ground in question [Inlot No. 19] until it obtains a valid variance from the Planning Commission of the Village of Ottawa, Ohio. To be valid, this commission must find that the conditions required by Section 402.3 of the ordinance exist.”

The judicial determination that the grant of a use variance by the planning commission, upon a finding that the specified conditions exist, would allow the bank to construct its parking lot collaterally estops further litigation of the issue. The doctrine of res judicata involves two basic concepts. Whitehead v. Genl. Tel. Co. (1969), 20 Ohio St. 2d 108, 112. First it refers to the effect a judgment in a prior action has in a second action between the same parties based upon the same cause of action. The second aspect is “collateral estoppel” which precludes the relitigation, in a second action, of an issue actually and necessarily litigated and determined in a prior action based on a different cause of action where all the parties in the first action are parties in the second action. Although the cause of action differs, the prior judgment precludes relitigating the same issue in the second suit. State, ex rel. Ohio Water Service Co., v. Sanitary Sanitation Dist. (1959), 169 Ohio St. 31; Norwood v. McDonald (1943), 142 Ohio St. 299; Restatement of Judgments, 175, Section 45, comment (c), and Section 68 (2); 32 Ohio Jurisprudence 2d 438, Judgments, Section 229.

Such is the case here. The prior decision of the Putnam County common pleas court was never appealed.³ Thereafter, the bank did obtain, as ordered, the use variance in question. The planning commission in effect, did find, as ordered, “that the conditions required by Section 402.3 of the ordinance exist.”⁴ Under the principle of res judicata this use variance cannot now be collaterally attacked in a declaratory judgment action. 32 Ohio Jurisprudence 2d 409, 413, Judgments, Sections 205 and 209.

Accordingly, the judgment of the Court of Appeals is reversed.

Judgment reversed.

Celebrezze, C. J., Cook, P. Brown, Sweeney and Holmes, JJ., concur. Locher, J., dissents. Cook, J., of the Eleventh Appellate District, sitting for W. Brown, J.

R. C. 2506.01, in relevant part, provides:

“Every final order, adjudication, or decision of any officer, tribunal, authority, board, bureau, commission, department or other division of any political subdivision of the state may be reviewed by the common pleas court of the county in which the principal office of the political subdivision is located, as provided in sections 2505.01 to 2505.45, inclusive, of the Revised Code and as such procedure is modified by sections 2506.01 to 2506.04, inclusive, of the Revised Code.

“The appeal provided in sections 2506.01 to 2506.04, inclusive, of the Revised Code is in addition to any other remedy of appeal provided by law.”

1 Ottawa Zoning Ordinance No. 944, Section 405.2(c), provides as follows:

“Rules and regulations. In exercising its powers in hearing appeals the Planning Commission shall adopt from time to time such general rules and regulations as it may deem necessary to carry out its functions in hearing appeals.”

The planning commission’s rules and regulations, passed January 24, 1977, provide in relevant part:

“SECTION 1. Pursuant to Section 405.2 of the Village of Ottawa Zoning Ordinance the Planning Commission hereby adopts general rules and regulations to carry out its functions in hearing appeals.

t( * * *

“SECTION 7. ***The decision of the Planning Commission shall be final and conclusive unless reversed, vacated or modified on appeal to the Court of Common Pleas. Such appeal may be taken either by the party of [sic or] the Village Clerk and shall proceed as in the case of appeals in Civil actions as provided by the Revised Code of Ohio, and the Ohio Rule of Civil Procedure.”

2 Like the plaintiff in Roper, supra, plaintiff Schomaeker was a party to the administrative proceedings before the Ottawa Planning Commission as the following excerpts from the commission’s record of proceedings clearly reveal:

“Minutes of Planning Commission meeting held January 16,1978; * * *The following is a list of the names and addresses of all abutting property owners to lot Number 19, Village of Ottawa, Ohio, as they appear in the office of the Auditor of Putnam County.

“Lot # 20 Eileen Schomaeker, 410 E. Third, Ottawa, Ohio* * *

“The following notice was published in the Putnam County Sentinel December 28, 1977 and sent to the following:

“Eileen Schomaeker, 410 E. Third St., Ottawa, Ohio 45875.

(( * * *

“Mr. Paul Cunningham, Attorney, appeared on behalf of Eileen Schomaeker and presented a petition containing 68 signatures objecting to the variance. Numerous persons testified or spoke both for and against the issue.”

3 The validity of the use variance was necessarily determined in this prior proceeding, the injunction action in case No. 77-104, Court of Common Pleas of Putnam County.

4 To evidence fulfillment of the common pleas court order in case No. 77-104 that the bank is enjoined from constructing a parking lot “until it obtains a valid variance from the Planning Commission* * *,” the common pleas court in the later declaratory judgment action, case No. 78-33, found, inter alia, in its judgment!entry:

“ * * * that under the Code the variance sought* * * did not rezone said lot; that said hearing and decision subsequently rendered by the Planning Commission were authorized by and in conformity with the general purpose of the zoning ordinance.

“The Court also finds that the conditions and provisions of the Zoning Code have been complied with;***Bank has complied with the order of this Court in case No. 77-104 ordering it to obtain a valid variance before it be permitted to construct a parking lot Inlot 19.”