[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 On February 9, 2015, the ordinance was repealed and amended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
