dissenting. I respectfully dissent.3 The majority has established a dangerous precedent in Ohio regarding property owners. The majority has concluded, improperly, that appellant’s prior unsuccessful attempt to obtain a variance in 1991 acted as a bar, on res judicata grounds, to his seeking relief in 1992 under Section 906.0 of the Parkman Township Zoning Ordinance.
The doctrine of res judicata involves both estoppel by judgment and collateral judgment. See Krahn v. Kinney (1989), 43 Ohio St.3d 103, 107, 538 N.E.2d 1058, 1062, citing Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10. In Whitehead, at paragraph two of the syllabus, we held that: “A final judgment or decree in an action does not bar a subsequent action where the causes of action are not the same, even though each action relates to the same subject matter. However, a point of law or a fact which was actually and directly in issue in the former action, and was there passed upon and determined * * * may not be drawn in question in a subsequent action between the same parties or their privies. The prior judgment estops a party, or a person in privity with him, from subsequently relitigating the identical issue raised in the prior action. * * *” (Emphasis added.)
Appellant’s 1991 request for an area variance from Section 404.0 of the Parkman Township Zoning Ordinance was markedly different from his 1992 request for relief pursuant to Section 906.0. In order to establish the right to an area variance, it must be shown that the property owner has encountered “practical difficulties” in the use of his or her property. See Duncan v. Middlefield (1986), 23 Ohio St.3d 83, 23 OBR 212, 491 N.E.2d 692. On the other hand, nonconforming-use status, in accordance with Section 906.0, requires proof that (1) the property owner Rad a “lot of record” prior to the effective date of the regulation or any restrictive amendments thereto, (2) the property in question is *385a minimum of one and one-half acres and has a minimum of one hundred fifty feet of frontage, and (3) all other zoning requirements for the zoning district have been met. Moreover, a variance, if granted, “runs with the land and, as a judgment in rem, cannot be collaterally attacked.” Set Products, Inc. v. Bainbridge Twp. Bd. of Zoning Appeals (1987), 31 Ohio St.3d 260, 263, 31 OBR 463, 465, 510 N.E.2d 373, 376. However, prior nonconforming-use status may be extinguished if the use is discontinued, voluntarily, for a certain period of time. See R.C. 519.19.
Clearly, appellant’s initial request in 1991 for a variance and his request in 1992 for relief pursuant to Section 906.0 constitute separate “causes of action,” even though they relate to the same subject matter, ie., constructing a building on land that does not comply currently with the minimum acreage requirement. As is evident from the different requirements involved, proof of either of these claims for relief “does not necessarily establish the other.” See Krahn, supra, 43 Ohio St.3d at 107, 538 N.E.2d at 1062. See, also, Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67, paragraph four of the syllabus; and Jones v. Petruska (App.1979), 13 O.O.3d 111, 113 (“[A] variance application and asserting prior non-conforming use status constitute separate causes of action, even though * * * they relate to the same subject matter. Both are distinctly separate methods of obtaining relief from a zoning restriction and require different sets of facts to sustain.”).
Further, the determination by the board in 1991 that appellant was not entitled to a variance did not determine the matter upon which appellant’s 1992 application was grounded. Indeed, the issues presented with respect to appellant’s 906.0 claim were not “actually and necessarily litigated and determined” in the denial of appellant’s 1991 request for a variance. See Whitehead, supra, 20 Ohio St.2d at 112, 49 O.O.2d at 437, 254 N.E.2d at 13.
In reaching the conclusion that appellant’s Section 906.0 request for relief was barred by the doctrine of res judicata, the majority relies on Natl. Amusements, Inc. v. Springdale (1990), 53 Ohio St.3d 60, 558 N.E.2d 1178, and 1 Restatement of the Law 2d, Judgments (1982), Sections 24-25. However, the majority’s reliance on National Amusements and Sections 24-25 of the Restatement of Judgments, supra, is misplaced and just plain wrong.
In National Amusements, 53 Ohio St.3d at 62, 558 N.E.2d at 1180, we stated that: “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.) Id., quoting Rogers v. Whitehall (1986), 25 Ohio St.3d 67, 69, 25 OBR 89, 90, 494 N.E.2d 1387, 1388. National Amusements involved a plaintiff’s repeated attempt to have a city tax declared unconstitutional. However, the facts and claims in the case at bar *386involve a unique area of the law and cannot be equated with the situation in National Amusements. In any event, it is apparent that under the circumstances of this particular case, appellant’s 906.0 claim would not have been considered in appellant’s 1991 appeal to the board. It is not disputed that the zoning inspector, with respect to appellant’s 1991 application, informed appellant that the remedy available was to seek a variance. Appellant relied on this advice and, after the zoning inspector denied appellant’s application, appellant, acting pro se, appealed to the board seeking a variance from the five-acre requirement set forth in Section 404.4.
I am also mystified by the majority’s citation to Sections 24-25 of the Restatement of Judgments, supra. The majority states that “[t]oday, we expressly adhere to the modern application of the doctrine of res judicata, as stated in 1 Restatement of the Law 2d, Judgments (1982), Sections 24-25, and hold 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.” (Emphasis added.) Sections 24-25 of the Restatement of Judgments, supra, do not concern decisions of a township zoning board but, rather, involve a court of record.
Probably the-most disturbing aspect of the majority’s holding is that the majority is aware of, but consciously ignores, the fact that appellant falls clearly within the requirements of Section 906.0. As a matter of fact, during oral argument before this court, counsel for the board candidly admitted that appellant, absent the technical application of res judicata, would be entitled to relief under Section 906.0. In this regard, I am persuaded by one legal authority which states:
“The doctrine of res judicata is not a mere matter of practice or procedure inherited from a more technical time, but rather a rule of fundamental and substantial justice, or public policy and of private peace. The doctrine may be said to adhere in legal systems as a rule of justice. Hence, the position has been taken that the doctrine of res judicata is to be applied in particular situations as fairness and justice require, and that it is not to be applied so rigidly as to defeat the ends of justice or so as to work an injustice.
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“Underlying all discussion of the problem must be the principle of fundamental fairness in the due process sense. The public policy underlying the principle of res judicata must be considered together "with the policy that a party shall not be deprived of a fair adversary proceeding in which to present his case. * * *” (Emphasis added and footnotes omitted.) 46 American Jurisprudence 2d (1994) 786-787, Judgments, Section 522. See, also, Goodson v. McDonough Power *387Equip., Inc. (1983), 2 Ohio St.3d 193, 202, 2 OBR 732, 740-741, 443 N.E.2d 978, 986-987.
As a final matter, I would also add that the majority is wrong in concluding that the application of res judicata to the case at bar puts the matter to rest and “establishes certainty in legal relations * * * and promotes the efficient use of limited judicial or quasi-judicial time and resources.” In fact, today’s holding will surely consume further “judicial or quasi-judicial time and resources.” Appellant may seek a variance from Section 404.4 based upon a showing of changed circumstances. See Set Products, supra, paragraph two of the syllabus. Further, the majority’s holding does not preclude appellant from resubmitting an application for a zoning certificate under Section 906.0. In resubmitting his application based upon nonconforming-use status, appellant need only change, minimally, the dimensions and site of the building in question. Or, in the alternative, appellant could seek a writ of mandamus to compel the board to grant him the relief he originally sought. See, generally, 2 Restatement of Law 2d, Judgments (1982), Section 83(3).
For the foregoing reasons, I respectfully dissent.
Resnick and Pfeifer, JJ., concur in the foregoing dissenting opinion.. Note: This dissent was written, submitted, and voted on before the majority opinion was changed to overrule, in part, and modify, in part, Norwood v. McDonald (1943), 142 Ohio St. 299, 27 O.O. 240, 52 N.E.2d 67, and Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10.