concurring in part and dissenting in part. With respect to the issue of res judicata, I agree with the majority opinion that the court of appeals’ judgment in this vein should be sustained. Although the 1963-1964 litigation between the parties concerned off-street parking, the precise issue involved in the cause sub judice has never been litigated, as correctly noted by the majority.
*172Nevertheless, on the basis of equity and fairness, I must dissent from the majority’s disposition of the court of appeals’ reversal of summary judgment.
In this cause, appellee’s building was completely destroyed by fire through no fault of its own. Although the building was nonconforming with respect to the off-street parking ordinances, I do not believe that such an alleged police power regulation should prevent appellee from constructing a replica building, especially since Section 711.05 of appellant municipality’s Zoning Code permits such reconstruction where circumstances, such as a fire, allow the reconstruction.
In my view, the majority’s holding increases the fortuitous hardship that has already befallen the appellee. As noted in Justice Clifford Brown’s dissent, the appellant was content to regard the appellee’s former operation of a restaurant with limited parking as a nonconforming use entitled to continue, because it predated the off-street parking ordinances. Once appellee’s building was destroyed, appellant ignored its prior stance in order to prevent reconstruction of the building. The majority’s assent to the appellant’s inconsistent course of conduct is totally inequitable and patently unfair. I would affirm the court of appeals’ reversal of the summary judgment rendered below.