For Plaintiff-Appellant: Michael H. Diamant
For Defendants-Appellees: William E. Blackie
CORRIGAN, P.J., KRENZLER, J., PATTON, J., concur
This cause came on to be heard upon the pleading and the transcript of the evidence and record in the Common Pleas Court, and was argued by counsel; on consideration whereof, the court certifies that in its opinion substantial justice has not been done the party complaining, as shown by the record of the proceedings and judgment under review, and judgment of said Common Pleas Court is reversed. Each assignment of error was reviewed by the court and upon review the following disposition made:
This is an appeal from a declaratory judgment action filed by the plaintiff-appellant for the purpose of declaring Ordinance No. 55-73 of the City of Lakewood, Ohio, unconstitutional in its prohibition of the construction of churches and other religious institutions upon property zoned R-2. By way of further relief, the appellant (hereinafter sometimes "Lakewood Congregation") sought a court order requiring appellees to issue the necessary permits for the construction of a church upon premises owned by the appellant. Specifically, Lakewood Congregation alleged in the case before the Court of Common Pleas for Cuyahoga County from which it is now appealing that the City of Lakewood unlawfully rejected its application for a building permit. In applying for this permit, appellant proposed to construct a church on a parcel of land owned by it and located on the southeast corner of Clifton Boulevard and West Clifton Boulevard in the City of Lakewood, Ohio.
In an earlier case before the Court of Common Pleas for Cuyahoga County, Case No. 902,820, that court upheld a decision of the Lakewood Board of Zoning Appeals (hereinafter sometimes "Board"). As way of background to this prior case, the Board of Zoning Appeals sustained the refusal of the City of Lakewood's Building Commissioner to issue appellant a building permit for a church. These decisions were made under city zoning provisions, since repealed, which permitted churches in residential zones. For churches to qualify for location in Class 1a districts (the former classification for appellant's property), however, the prior provisions provided that certain enumerated conditions had to be met. Lakewood's Building Commissioner determined that all these conditions had not been satisfied.
Thereafter, Lakewood Congregation appealed the decision of the Building Commissioner to the Board of Zoning Appeals of the City of Lakewood. On January 18, 1972, a public hearing was held before the Board, and Lakewood Congregation's application for a building permit was denied. Subsequently, Lakewood Congregation appealed the decision of Lakewood's Board of Zoning Appeals to the Common Pleas Court for Cuyahoga County, Ohio.
In June of 1972, the Common Pleas Court, in Case No. 902,820, affirmed the Board's decision and rendered Findings of Fact and Conclusions of Law.
Among the Findings of Fact filed by that court are the following:
"12. The intersection of Clifton Boulevard and West Clifton Boulevard is very complex, has high traffic volume and a large number of turning vehicles and the intersection was complicated by the addition of heavy truck traffic detoured for this location by the closing of the Detroit-Rocky River Bridge. West Clifton Boulevard is a major pedestrian route for students at McKinley and Horace Mann Schools. Since January 1968 there have been forty-four motor vehicle accidents in the area.
"13. The intersection of West Clifton Boulevard and Clifton Boulevard was the 111th busiest intersection in Lakewood, Ohio out of 1,050 intersections at which traffic was counted between the hours of 7:00 a.m. and 7:00 p.m. according to a survey conducted by the County Engineer of Cuyahoga County, Ohio as revised to include counts made in 1970."
One of the Conclusions of Law reached by the trial judge was as follows:
"The action of the Board of Zoning Appeals of the City of Lakewood in denying Plaintiff-Appellant's approval to erect a church at the southeast corner of Clifton Boulevard and West Clifton Boulevard, Lakewood, Ohio because of traffic congestion with its incidents, hazards, and annoyances and the other reasons stated was under the substantial presence in this case a reasonable application of the police power in behalf of the public safety and general welfare."
The trial court's judgment was affirmed by this court. Lakewood Congregation of Jehovah's Witnesses v. City of Lakewood, Ohio, No. 32386 (1974). In affirming the Common Pleas Court's judgment, this court concluded that the trial judge did not err in finding that Lakewood's Board of Zoning Appeals did not abuse its discretion in denying a building permit to the plaintiff-appellant after public notice and hearing.
Subsequently, Lakewood Congregation appealed the decision of this court to the Supreme Court of Ohio. The Supreme Court overruled Lakewood Congregation's motion for an order directing the Court of Appeals to certify its record, being Case No. 74-410 on the docket of the Supreme Court of Ohio.
On July 2, 1973, the Council of the City of Lakewood enacted Chapters 1102 through 1129 under which the appellant's property was included within a single-family residence district, designated R-2.
On April 9, 1975, Lakewood Congregation again applied for a building permit to construct a church on its Lakewood property. The application was denied on April 10, 1975. In a letter dated April 10, 1975, and addressed to Gary Greenwald, counsel for Lakewood Congregation, Stanley Cook, Lakewood's Building Commissioner, set forth two reasons for the denial of the application. First, Cook maintained that legal determinations resulting from the rejection of the first application for a building permit were dispositive of the second application. Second, Cook relied on Ordinance 55-73, which he interpreted as providing that churches were not a permitted use in R-2 zoning districts. On April 16, 1975, appellant filed a complaint in the Court of Common Pleas, being Case No. 941,446 on the docket of that court.
In the action before the trial court, both plaintiff-appellant and defendants-appellees moved for summary judgment. Plaintiff sought an order granting summary judgment as follows: 1) declaring Ordinance No. 55-73, Codified Ordinances of the City of Lakewood, unconstitutional in its alleged prohibition of the construction of churches on property zoned R-1, R-2, and R-3; 2) requiring defendants to issue the necessary permits for the construction of a church on plaintiff-appellant's premises. Defendants-appellees, on the other hand, argued for summary judgment on the basis of the doctrine of Res Judicata. Defendants' position was that since the instant case involved the same parties, the same property, the same intended use, the same ultimate issue (whether a church may be constructed on plaintiff-appellant's premises), and a similar ordinance as the prior action, the former case is dispositive.
On April 14, 1976, the trial judge granted the City's Motion for Summary Judgment and made the following Journal Entry:
"The court rules that under the doctrine of collateral estoppel, this Court, through another Judge, and the Court of Appeals having ruled that the construction of a church on the site in question would create a traffic hazard and thus effect the safety of the community, since this has already been litigated by the parties the ordinance in question only as it applies to the construction of this church at the site in question is not invalid.
"The court makes no ruling on the constitutionality of this ordinance as a blanket and comprehensive prohibition against the construction of all churches in the area covered by the ordinance. The court is merely holding that the facts of this particular case justify the prohibition as to the construction of a church on this site."
On May 4, 1976, the trial judge denied plaintiff-appellant's Motion for Reconsideration and Motion to File an Amended Complaint.
In its appeal to this court, Lakewood Congregation sets forth the following assignments of error:
"1. The Court of Common Pleas erred in holding that the prohibition of the construction of a church at the site owned by the Plaintiff-Appellant was justified by the doctrine of collateral estoppel.
"2. The Court of Common Pleas erred in failing to rule that the Lakewood Zoning Code prohibition against the construction of churches in residential areas is violative of the Ohio and United States Constitutions."
I.
It is a decision of this court that the first assignment of error is well taken.
The first action before the Cuyahoga County Court of Common Pleas, Lakewood, Ohio, Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, et al., Case No. 902,820, affd. No. 32386 (Ct. of App., Cuyahoga Cty. 1974), mo. cert. ovrrld. Case No. 74-410 (Sup. Ct. of Ohio), involved a mixed question of law and fact. In that case, the trial judge was called upon to determine whether the Board of Zoning Appeals of the City of Lakewood had abused its discretion in denying Lakewood Congregation's application for a building permit. In rendering his decision, the trial judge concluded there was no abuse of discretion since the denial of the permit was founded upon traffic congestion and "other reasons" that bore a reasonable relation to the City's police power. The Board of Zoning Appeals' recognition of potential traffic hazards reflected its concern for the public health, safety and welfare. Under these circumstances, the court below found no abuse of discretion on the part of the Board.
Lakewood Congregation prayed to have the trial court order appellees to issue it a building permit. While a consideration of traffic conditions normally would be appropriate in determining whether a building permit should issue, this court concludes that traffic conditions are not conclusively established by the prior suit even as to appellant's request for a permit. The issues in the two cases differ, the traffic patterns may have changed, and even if the traffic is the same, conditions must be examined in light of the new zoning code. Traffic congestion, while probably the determinative factor in the prior case, was only one of several factors which the trial court considered in concluding that the decision of the Board reasonably related to safeguarding the public health and welfare. Thus, traffic congestion was merely an evidentiary fact rather than an ultimate fact in the prior case.
"It is a general rule that the doctrine of collateral estoppel precluding the relitigation of particular facts or issues does not extend to evidentiary or mediate facts, as distinguished from the ultimate facts, involved in the prior or later actions, even though the determination of the facts in issue is dependent upon the determination of the evidentiary or mediate facts." 32 Ohio Jur. 2d 452, Judgments § 234.
By this rule, the trial court improperly invoked the doctrine of collateral estoppel in the case below. In addition, since the instant case is based on an ordinance different from the one in the prior action, the trial court's granting of summary judgment based on collateral estoppel was error. In re Town of West Jordan (1958), 7 Utah 2d 391.
II.
Having determined that the trial court erred in its reliance on the doctrine of collateral estoppel, this court concludes that the only other matter to be resolved is the propriety of the trial court's granting summary judgment for defendants-appellees. The trial judge's entry of April 14, 1976, was founded on the doctrine of collateral estoppel and specifically addressed Lakewood Congregation's entitlement to construct a church on its site. The following language from the entry explicitly indicates that the judge did not reach appellant's prayer for declaratory relief:
"The court makes no ruling on the constitutionality of this ordinance as a blanket and comprehensive prohibition against the construction of all churches in the area covered by the ordinance. The court is merely holding that the facts of this particular case justify the prohibition as to the construction of a church on this site."
Because the doctrine of collateral estoppel was inapplicable to the facts and issues of the case at bar, the trial court improperly rendered summary judgment for defendants-appellees.
As to the first assignment of error, this case is reversed and remanded to the Court of Common Pleas for Cuyahoga County for further proceedings consistent with this entry. The second assignment of error is overruled. Because the trial court expressly did not address the constitutionality of Ordinance No. 55-73, Codified Ordinances of the City of Lakewood, that matter is not properly before this court.
No other error appearing in the record, this cause is remanded to the Common Pleas Court for further proceedings consistent with this entry.
It is, therefore, considered that said appellant recover of said appellee(s) its costs herein.
It is ordered that a special mandate be sent to said Court to carry this judgment into execution.