[Cite as Frazeysburg v. Stokes, 2018-Ohio-4153.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
VILLAGE OF FRAZEYSBURG : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellant : Hon. Patricia A. Delaney, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
PATRICIA J. STOKES : Case No. CT2018-0022
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. CF2017-0010
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 9, 2018
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
GERALD J. TIBERIO, JR. DAVID B. STOKES
37 South 7th Street 33 West Main Street
Suite 250 Suite 102
Zanesville, OH 43701 Newark, OH 43055
Muskingum County, Case No. CT2018-0022 2
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Village of Frazeysburg, appeals the March 20, 2018
judgment entry of the Court of Common Pleas of Muskingum County, Ohio reversing the
decision of the village board of zoning. Defendant-Appellee is Patricia J. Stokes.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 8, 2002, appellant passed Village of Frazeysburg Zoning
Ordinance 02-09. On February 9, 2015, the ordinance was repealed and amended
(Ordinance 24-14).
{¶ 3} Appellee lives in an R-1 single-family residential district. On March 26,
2015, the village zoning inspector notified appellee via letter that she was in violation of
the Ordinance, Section 2.01(b) (Permits and Certificates, Zoning Permit), for having a
building or other structure on her property without a zoning permit (fence and chicken
coop). The letter also informed her that livestock was not permitted in an R-1 district.
The letter ordered appellee to remove the fence and chicken coop within fourteen days.
{¶ 4} On October 6, 2015, appellant cited appellee with one count of engaging in
agriculture, a prohibited activity outside of an agriculture and estate district, in violation of
Ordinance 24-14, Section 8.06 (Permitted and Conditional Uses in Residential Districts),
a minor misdemeanor, for harboring or keeping poultry on her property. The citation was
filed with the Mayor's Court, but was later transferred to the County Court (Case No. CRB-
1500878). On October 30, 2015, the county court dismissed the case for vagueness prior
to the arraignment hearing. The state of Ohio did not appeal.
{¶ 5} On January 20, 2016, the village zoning inspector again notified appellee
via letter that she was in violation, but this time the violation was for violating Sections
Muskingum County, Case No. CT2018-0022 3
1.04 (Allowable Uses), 2.01(b) (Permits and Certificates, Zoning Permit), 10.01(a)
(Accessory Uses and Structures, Compatibility), and 10.02(g)(1) and (6) (Home
Occupations, Prohibited Occupations), for having a fence, chicken coops, and chickens
on her property without a zoning permit. The letter ordered appellee to remove the fence,
chicken coop, and chickens within fourteen days.
{¶ 6} On August 8, 2016, Ordinance 24-14 was revised and amended to
specifically prohibit the keeping and harboring of livestock and poultry within residential
zoned areas [Ordinance 15-16, Section 8.06(c)]. The amended ordinance also prohibited
the installation of livestock or poultry structures.
{¶ 7} On August 11, 2016, the village zoning inspector notified appellee via letter
that she was still in violation of the same sections as the January letter. The letter ordered
appellee to remove the fence, chicken coop, and chickens within thirty days. The letter
did not include a violation of Ordinance 15-16, Section 8.06(c), because it was not yet
effective, the effective date being thirty days after the new ordinance was published.
{¶ 8} Appellee appealed the August 2016 letter to the village board of appeals.
A hearing was held on November 14, 2016. The board affirmed the letter and the minutes
of the meeting were adopted on December 12, 2016.
{¶ 9} Appellee filed an appeal with the Court of Common Pleas. A hearing was
held on March 27, 2017. By judgment entry filed March 20, 2018, the trial court reversed
the decision of the village board of appeals, finding the dismissal of the October 6, 2015
citation constituted res judicata.
{¶ 10} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
Muskingum County, Case No. CT2018-0022 4
I
{¶ 11} "THE TRIAL COURT ERRED AS A MATTER OF LAW BY REVERSING
THE DECISION OF THE VILLAGE OF FRAZEYSBURG BOARD OF ZONING
APPEALS."
I
{¶ 12} In its sole assignment of error, appellant claims the trial court erred in
reversing the decision of the board of zoning appeals. We disagree.
{¶ 13} Specifically, appellant argues the trial court erred in finding the doctrine of
res judicata applied in this case. Res judicata is defined as "[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 Twp., 73 Ohio St.3d 379, 653 N.E.2d 226 (1995), syllabus.
{¶ 14} Pursuant to R.C. 2506.04, in an administrative appeal, the common pleas
court considers the whole record, including any new or additional evidence, and
determines whether the administrative order is unconstitutional, illegal, arbitrary,
capricious, unreasonable, or unsupported by the preponderance of substantial, reliable,
and probative evidence. In reviewing an appeal of an administrative decision, a court of
common pleas begins with the presumption the board's determination is valid, and the
appealing party bears the burden of showing otherwise. Hollinger v. Pike Township Board
of Zoning Appeals, 5th Dist. Stark No. 09CA00275, 2010-Ohio-5097.
{¶ 15} As an appellate court, our standard of review to be applied in an R.C.
2506.04 appeal is "limited in scope." Kisil v. Sandusky, 12 Ohio St.3d 30, 34, 465 N.E.2d
848 (1984). "This statute grants a more limited power to the court of appeals to review
Muskingum County, Case No. CT2018-0022 5
the judgment of the common pleas court only on 'questions of law,' which does not include
the same extensive power to weigh 'the preponderance of the substantial, reliable, and
probative evidence,' as is granted to the common pleas court." Id. at fn. 4.
{¶ 16} Ultimately, the standard of review for appellate courts in an R.C. Chapter
2506 appeal is "whether the common pleas court abused its discretion in finding that the
administrative order was or was not supported by reliable, probative, and substantial
evidence." See Weber v. Troy Township Board of Zoning Appeals, 5th Dist. Delaware
No. 07 CAH 04 0017, 2008-Ohio-1163. In order to find an abuse of discretion, we must
determine the trial court's decision was unreasonable, arbitrary or unconscionable and
not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450
N.E.2d 1140 (1983).
{¶ 17} "The standard of review for courts of appeals in administrative appeals is
designed to strongly favor affirmance" and "permits reversal only when the common pleas
court errs in its application or interpretation of the law or its decision is unsupported by a
preponderance of the evidence as a matter of law." Cleveland Clinic Foundation v.
Cleveland Board of Zoning Appeals, 141 Ohio St.3d 318, 2014-Ohio-4809, 23 N.E.3d
1161.
{¶ 18} In its judgment entry filed March 20, 2018, the trial court determined the
following:
After a thorough review of the record, including the parties' oral
arguments (supra), this court finds in favor of Patricia J. Stokes, appellant,
and reverses the decision of the Village's BZA. The record does not, by a
Muskingum County, Case No. CT2018-0022 6
preponderance of the evidence (infra), support the finding that appellant
violated the Village Zoning Ordinance. The dismissal by the Muskingum
County Court (supra) constitutes res judicata herein. * * *
Res judicata applies to administrative proceedings that are of a
judicial nature and where the parties have had an ample opportunity to
litigate the issues involved in the proceedings. (Grava). As above noted,
appellee did not appeal the dismissal by the Muskingum County Court.
{¶ 19} In the county court action, appellant was cited for engaging in agriculture, a
prohibited activity outside of an agriculture and estate district, in violation of Ordinance
24-14, Section 8.06, for harboring or keeping poultry on her property. The case was
dismissed for "vagueness" prior to the arraignment hearing. At the March 27, 2017
hearing, there was much discussion as to what the "vagueness" finding referred to, the
way the citation was written or the language of the actual ordinance. T. at 4-9, 27-31, 34-
35. The trial court noted "it doesn't sound like that dismissal is on the merits." T. at 39-
40. We find there is nothing in the record to establish that the county court's dismissal
had anything to do with the merits.
{¶ 20} The subject of this case is an August 11, 2016 letter sent to appellee from
the village zoning inspector notifying her that she was still in violation of the same
ordinance sections as outlined in a January 20, 2016 letter. The January letter notified
appellee that she was in violation of Ordinance 24-14, Sections 1.04 (Allowable Uses),
2.01(b) (Permits and Certificates, Zoning Permit), 10.01(a) (Accessory Uses and
Structures, Compatibility), and 10.02(g)(1) and (6) (Home Occupations, Prohibited
Muskingum County, Case No. CT2018-0022 7
Occupations), for having a fence, chicken coops, and chickens on her property without a
zoning permit. Section 8.06, the subject of the county court action, was not listed.
{¶ 21} Because the county court action was not dismissed on the merits and the
administrative action sub judice involved allegations of violating ordinance sections other
than Section 8.06, we find the trial court erred in finding the doctrine of res judicata applied
in this case.
{¶ 22} However, "[b]y virtue of the two-issue rule, a decision which is supported by
one or more alternate grounds properly submitted is invulnerable to attack on one issue
only." Freeport Lodge #415 Free & Accepted Masons of Ohio v. MC Mineral Company,
5th Dist. Guernsey No. 18 CA 2, 2018-Ohio-3783, ¶ 12, citing Suermondt v. Lowe, 5th
Dist. Morgan No. 10-CA-2, 2011-Ohio-5752, ¶ 22, citing Hampel v. Food Ingredients
Specialties, Inc., 89 Ohio St.3d 169, 185, 729 N.E.2d 726 (2000). Because the trial court
also found that the record does not, by a preponderance of the evidence, support the
finding that appellee violated the ordinance and appellant has not challenged this finding
on appeal, the judgment must be affirmed.
{¶ 23} The sole assignment of error is denied.
Muskingum County, Case No. CT2018-0022 8
{¶ 24} The judgment of the Court of Common Pleas of Muskingum County, Ohio
is hereby affirmed.
By Wise, Earle, J.
Hoffman, P.J. and
Delaney, J. concur.
EEW/db 925