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CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 1 of 31
IN THE COURT OF COMMON PLEAS
SUMMIT COUNTY, OHIO
THE HOMELESS CHARITY, LLC, et al. ) Case No. CV-2019-02-0684
)
Plaintiffs-Appellants ) Judge JILL FLAGG LANZINGER
)
-vs- )
) RESPONSE IN OPPOSITION TO
AKRON BOARD OF ZONING APPEALS ) PLAINTIFFS-APPELLANTS’
) MOTION TO SUPPLEMENT THE
Defendant-Appellee ) RECORD
Now comes Defendant-Appellee City of Akron Board of Zoning Appeals, by and
through counsel, and hereby submits this Response in Opposition to the Motion to
Supplement the Record filed by Plaintiffs-Appellants The Homeless Charity, LLC, Sage
Lewis LLC, and Sage Lewis. As more fully set forth in the attached Memorandum in
Support, Plaintiffs-Appellants’ Motion does not satisfy the requirements of R.C. 2506.03
for permitting additional evidence being added to the transcript. Furthermore, Plaintiffs-
Appellants’ desire to now raise an as-applied challenge to the constitutionality of the
zoning code of the City of Akron does not constitute grounds to supplement the record.
Accordingly, this Court should deny Plaintiffs-Appellants’ Motion.
Respectfully submitted,
Eve V. Belfance
Director of Law
/s/ Brian D. Bremer
John R. York (0065046)
Brian D. Bremer (0087363)
Assistant Director of Law
161 S. High St., Suite 202
Akron, Ohio 44308
(330) 375-2030
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(330) 375-2041 (fax)
jyork@akronohio.gov
bbremer@akronohio.gov
Attorneys for Defendant-Appellee
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MEMORANDUM IN SUPPORT
INTRODUCTION
On December 6, 2018, the City of Akron (the “City”) issued a Notice of
Violation/Order to Comply (the “Order”) to the owner of 15 Broad St., Akron, Ohio, (the
“Property”) for operating a campground on the Property in violation of the City of Akron
zoning code. Plaintiffs-Appellants Sage Lewis, Sage Lewis, LLC, and The Homeless
Charity (collectively, “Appellants”) filed an appeal of the Order, requesting a variance to
operate a campground at the Property. The matter came before the City Board of
Zoning Appeals (the “Board”) at a hearing held on January 30, 2019 (the “Hearing”), at
which Appellants were represented by counsel. The Board heard from proponents and
opponents of the appeal, and, after hearing all of the evidence presented and having
reviewed the submitted evidence, the Board denied Appellants’ request for a variance.
Appellants have appealed the Board’s denial of their request for a variance pursuant to
R.C. Chapter 2506 and have moved pursuant to R.C. 2506.03 to supplement the record
before this Court.
STANDARD FOR SUPPLEMENTING THE RECORD
“When an appeal is taken under R.C. Chapter 2506 from a decision of an
administrative agency, the appellant must file a praecipe with the administrative agency,
who must then file a complete transcript of all the original papers, testimony, and
evidence that was offered, heard, and taken into consideration in issuing the order
appealed from. R.C. 2506.02.” Ward v. Cuyahoga Falls Bd. of Zoning, 9th Dist. Summit
No. 27848, 2016-Ohio-7091, ¶ 15. “ ‘The hearing of an appeal taken in relation to a
final order, adjudication, or decision * * * shall proceed as in the trial of a civil action, but
the court shall be confined to the transcript as filed under [R.C. 2506.02] * * *.’ ”
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(Alterations in Ward) Id., quoting R.C. 2506.03(A). An appellant may ask the common
pleas court to supplement the record, however, if it appears, on the face of that
transcript or by affidavit filed by the appellant, that one of the following applies:
(1) The transcript does not contain a report of all evidence admitted or
proffered by the appellant.
(2) The appellant was not permitted to appear and be heard in person, or
by the appellant's attorney, in opposition to the final order, adjudication, or
decision, and * * * [c]ross-examine witnesses purporting to refute the
appellant's position, arguments, and contentions;
(3) The testimony adduced was not given under oath.
(4) The appellant was unable to present evidence by reason of a lack of
the power of subpoena by the officer or body appealed from, or the
refusal, after request, of that officer or body to afford the appellant
opportunity to use the power of subpoena when possessed by the officer
or body.
(5) The officer or body failed to file with the transcript conclusions of fact
supporting the final order, adjudication, or decision.
R.C. 2506.03(A).1
APPELLANTS’ ALLEGATIONS
Appellants have moved to supplement the record before this Court, alleging that
the transcript filed by the Board does not contain all of the evidence submitted or
1 Although R.C. 2506.03(A)(2) contains other potential exceptions to the general rule
that a court hears administrative appeals on the record before the administrative body,
Appellants do not allege those exceptions apply here.
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proffered by them, that they could not cross-examine witnesses, that they were unable
to present evidence because of the lack of subpoena power of the Board, and because
the Board did not file conclusions of fact with the transcript.2 Appellants also argue that
they should be permitted to supplement the record because they plan to bring an as-
applied constitutional challenge to the Zoning Code of the City of Akron (the “Zoning
Code”). This Court, however, should deny Appellants’ Motion to Supplement the
Administrative Transcript on Appeal (“Appellants’ Motion”) because Appellants’
allegations are not supported by the face of the administrative record or by the affidavit
of Diana Simpson submitted with Appellants’ Motion. Furthermore, Appellants’
proposed constitutional arguments are barred by res judicata and, in any case, R.C.
Chapter 2506 makes no provision for the supplementing of the record based solely on
as-applied constitutional arguments.
Accordingly, this Court should deny Appellants’ Motion and hear this matter on
the record of the evidence presented to the Board and the briefs of the parties.
PAGES OMITTED FROM RECORD
As an initial matter, Appellants correctly noted that six pages of the
documentation they submitted to the Board as well as a page of the transcript of the
2 In a footnote, Appellants make a statement that it is unclear from the transcript
whether Karen Pateos was sworn in during the hearing but do not otherwise argue that
this forms a basis for supplementing the record before this Court. See (Appellants’
Motion at 13, fn. 14). Regardless, Ms. Pateos, along with all other speakers at the
hearing, were sworn, and, in any case, Appellants’ waived this issue because they did
not object during the hearing. (Minutes of January 30, 2019 Meeting of the Board at 1);
Concerned Richfield Homeowners v. Richfield Planning & Zoning Comm., 9th Dist.
Summit No. 25033, 2010-Ohio-4095, ¶ 8 (A party waives the right to supplement the
record pursuant to R.C. 2506.03(A)(3) where they do not object to the lack of sworn
testimony during the hearing before the administrative body.).
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Hearing were omitted from the record submitted by the Board. As detailed in the
Board’s Notice of Supplementing of the Record filed on April 22, 2019, the pages were
mistakenly omitted as a result of the scanning process and have since been submitted
to the court, thus correcting any error. Accordingly, to the extent the Appellants are
seeking to supplement the record with those documents/pages, that has already
occurred, rendering that portion of the Appellants’ Motion moot.
APPELLANTS WERE NOT DENIED THE RIGHT TO CROSS-EXAMINE WITNESSES
Appellants argue in their Motion that this Court should allow them to supplement
the record because they were not permitted to cross-examine witnesses during the
hearing before the Board. See R.C. 2506.03(A)(2). Appellants’ contention, however, is
not supported by the transcript of the hearing or by Ms. Simpson’s affidavit submitted
with their Motion. At no point during the hearing did Appellants attempt to cross-
examine a witness, ask to cross-examine a witness, or object to not being permitted to
cross-examine witnesses. This was despite being represented by counsel, who spoke
during the hearing.3
In Concerned Richfield Homeowners v. Richfield Planning & Zoning Comm., 9th
Dist. Summit No. 25033, 2010-Ohio-4095, the Ninth District held that a party may not
attempt to supplement the record before the common pleas court when the party failed
to object to an alleged defect in the proceeding before the administrative body. See id.
at ¶ 8. Similarly, a party may not circumvent the requirement in R.C. 2506.03(A) that an
administrative appeal should be heard on the record of the proceedings before the
3 It is important to note that Appellants have been represented by three attorneys
throughout these proceedings, including the attorney who spoke to the Board. This is
not a matter of an unsophisticated party being unaware of his or her rights.
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administrative body by failing to exercise their rights before the body. R.C. 2506.03(B)
clearly contemplates supplementing the record when the party seeking to supplement
was deprived of the opportunity to engage in the process, not when the party voluntarily
declined to do so. See, e.g., Zurow v. Cleveland, 61 Ohio App.2d 14, 24, 399 N.E.2d 92
(8th Dist.1978) (“Inasmuch as the [appellants] did not object to the Board’s failure to
swear witnesses or raise the issue of examination or cross-examination during the
proceedings before the Board, they waived their right to claim these errors in an appeal
to the Common Pleas Court under R.C. Chapter 2506 and subsequently to this court.”).
Otherwise, as long as the complaining party remained silent through the hearing, the
party would be able to essentially retry the matter before the common pleas court, a
result clearly against the plain meaning and intent of R.C. 2506.03.
Accordingly, Appellants have failed to establish that the exception set forth in
R.C. 2506.03(A)(2) applies and, therefore, have failed to establish that this Court should
permit them to supplement the record of the hearing.
THE APPELLANTS WERE NOT PREVENTED FROM PRESENTING EVIDENCE BECAUSE THEY
LACKED SUBPOENA POWER
Appellants argue that they should be permitted to supplement the record before
this Court because they were unable to present evidence due to the lack of subpoena
power of the Board. However, although Appellants attempt to frame their argument
within the context of R.C. 2506.03(A)(4), their actual objection is that they were not
permitted to conduct discovery consistent with the Rules of Civil Procedure.
Specifically, Appellants argue that they “were not able to compile facts in the form of
written discovery or deposition testimony because they lacked a subpoena power over
city officials and third-party witnesses.” (Motion at 15). Notably, however, nothing in
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R.C. 2506.03 contemplates an appellant’s right to conduct discovery consistent with the
Rules of Civil Procedure and, in any case, Appellants’ arguments are purely speculative
and not supported by the face of the record or by Ms. Simpson’s affidavit. See R.C.
2506.03(A).
As noted above, this Court must hear the Appellants’ appeal on the record of the
hearing before the Board unless “it appears, on the face of that transcript or by affidavit
filed by the appellant” that one of the exceptions in R.C. 2506.03(A) applies. See id.
Notably, Appellants’ Motion contains no citations either to the record before the Board
or to the affidavit of Ms. Simpson as to what evidence they were prevented from
presenting at the hearing because they could not issue subpoenas. See (Motion at 14-
15). Instead, Appellants argue that they were prejudiced because they could not
conduct pre-hearing discovery. See (Motion at 15) (“Appellants were not given the
chance to depose Ms. Pateos in advance * * *.”).4 However, while the subpoena power
may, in some instances, be used to compel depositions, the right to conduct pre-hearing
depositions comes from either statute or rules of procedure, not from the subpoena
power. See, e.g., Crim.R. 15, Crim.R. 17(E), Civ.R. 30, and Civ.R. 45. Rather, the
power of subpoena is, innately, the power to compel an individual’s testimony before a
tribunal or for the disclosure of records. See, e.g., Black’s Law Dictionary (10th
Ed.2014) (defining “subpoena” as “A writ or order commanding a person to appear
before a court or other tribunal, subject to a penalty for failing to comply.”). Accordingly,
Appellants’ argument that they were unable to depose Ms. Pateos prior to the hearing
4 Although Appellants claim they could not cross-examine Ms. Pateos, this is an
inaccurate statement. As detailed above, they did not exercise their right to cross-
examine her, which is not the same.
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essentially constitutes an objection to the administrative process generally but does not
establish that they were unable to put on evidence because the Board could not
subpoena witnesses.
Appellants also state that they “were unable to determine who authored the
memorandum from the Department of Planning and Urban Development that
recommended affirming the Notice of Violation/Order to Comply and denying the
requested variance.” (Motion at 15). Appellants, however, do not explain how the
subpoena power would have enabled them to learn this information. Nevertheless, they
suggest that “[h]ad [they] been able to determine who authored the memorandum and
then been able to subpoena and depose the author (or the entity itself), they would have
had the opportunity to determine the factual basis for material assertions in the
memorandum.” (Motion at 15). Appellants argument, however, is again merely an
objection to the administrative process not following the Rules of Civil Procedure. It
does not establish that they could not present evidence because they could not avail
themselves of the subpoena power.
Furthermore, Appellants’ argument is purely speculative because it is not clear
from the face of the record before this Court that the author of the Planning Staff
Memorandum was not already present at the hearing. Put another way, if the author of
the report was present at the Hearing and testified, then any attempt to subpoena that
individual would have been redundant and, therefore, the lack of subpoena power would
have had no effect on Appellants’ ability to present evidence. In this case, Karen
Pateos and Mike Antenucci are both members of the Department of Planning and both
attended the Hearing and testified. Because both Ms. Pateos and Mr. Antenucci both
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testified at the Hearing, a subpoena compelling their attendance at the hearing would
have been unnecessary. Therefore, if either Ms. Pateos or Mr. Antenucci had drafted
the Planning Staff Memorandum, Appellants would not have needed to subpoena them
in order to question them about the statements made in the Memorandum. Thus, it is
not clear from the face of the record that the Appellants were prevented from presenting
evidence because they could not subpoena the author of the Planning Staff
Memorandum.
It should also be noted that Appellants could have inquired as to the identity of
the drafter of the Planning Staff Memorandum by asking either Ms. Pateos or Mr.
Antenucci during the hearing.5 Similarly, Appellants could have inquired about the
concepts and opinions stated in the document. Knowing who authored the
Memorandum is not as critical as being able to explore the contents of the document
with the person who is advancing the opinion of the Planning Department. Thus, in
order to establish that they were prevented from presenting evidence, Appellants would
have needed to have questioned the planning staff members present at the hearing and
those witnesses would have had to deny having knowledge of the contents of the
report. As noted above, however, Appellants did not ask any questions of the witnesses
at the Hearing and, therefore, the record does not support the conclusion that they were
prevented from learning who authored the memorandum or that they were prevented
5 For the record, Ms. Pateos and Mr. Antenucci worked together to draft the report.
Thus, not only does the record fail to establish Appellants were prevented from
presenting evidence. In fact, they cannot successfully make this claim because the very
individuals Appellants wanted to question were at the Hearing.
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from presenting evidence because they could not subpoena the author of the
memorandum.
Accordingly, Appellants have failed to demonstrate that the exception set forth in
R.C. 2506.03(A)(4) permits this Court to supplement the record in this matter.
CONCLUSIONS OF FACT
Appellants also allege that the record before this Court does not contain
conclusions of fact from the Board, and, therefore, this Court should permit them to
supplement the record. R.C. 2506.03(A)(5), however, “does not require the conclusions
of fact to take any specific form,” nor is the administrative body required “to file a
separate document entitled ‘Conclusions of Fact.’ ” Concerned Richfield Homeowners,
2010-Ohio-4095, at ¶ 10. Instead, the only requirement is that the administrative body’s
reasons for reaching its decision be apparent from the record before the court. Id. The
record in this case does just that.
In order to evaluate the Board’s factual findings, however, it is necessary to look
at the standard for granting a variance under the City’s Zoning Code. Akron Code of
Ordinances (A.C.O.) § 153.404 provides,
The Board of Zoning Appeals may, on appeal in a specific case, after
public notice and hearing, vary the application of certain of the regulations
established in this Zoning Code in harmony with their general purpose and
intent. These variances shall be authorized only when the Board finds
adequate evidence that they will meet the criteria set forth in Sections
153.474 and 153.476.
In other words, before the Board may even consider exercising its discretion to grant a
requested variance, it must make several factual findings, which are set forth in A.C.O.
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§ 153.474. The Board must find that the party requesting a variance set forth adequate
evidence to establish that the variance
A. Will be harmonious with and in accordance with the general objectives
of the City's Comprehensive Plan;
B. Will be designed, constructed, operated, and maintained so as to be
harmonious and appropriate in appearance with the existing or intended
character of the general vicinity and will not change the essential
character of the same area;
C. Will not be hazardous or disturbing to existing or future neighboring
uses;
D. Will be served adequately by essential public facilities such as
highways, streets, police and fire protection, drainage structures, refuse
disposal, water and sewers and schools; or that the person or agency
responsible for the establishment of the proposed use shall be able to
provide adequately any such services;
E. Will not create excessive additional requirements at public cost for
public facilities and services, and will not be detrimental to the economic
welfare of the community,
F. Will not involve uses, activities, processes, materials, equipment, and
conditions of operation that will be detrimental to any person or property or
the general welfare by reason of excessive production of traffic, noise,
smoke, fumes, glare, or odors;
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G. Will have vehicular approaches to the property which shall be so
designed as not to create an interference with traffic on surrounding public
streets or roads;
H. Will not result in the destruction, loss, or damage of a natural, scenic, or
historic feature of major importance.
A.C.O. § 153.474. These factual findings are prerequisites for the Board exercising its
discretion and the failure to establish any of them necessitates the denial of a requested
variance. See A.C.O. § 153.404.
Prior to voting to deny Appellant’s requested variance, one of the Board
members (Bruce Bolden) spoke at length about whether the requested variance (i.e., a
campground) was consistent with the single-family use in the area:
The zoning code 153.404 sets out what we can and can’t do, and
unfortunately, or fortunately, however you look at it, it does not allow us to
say , yes, you can keep the campground. It goes into the reasons why we
can’t and that goes into the 153.474 that talks about whether these,--we
grant zoning that is harmonious to the zoning code, and, quite frankly,
they’re not allowed in these areas.
(Transcript at 49). Mr. Bolden went on to state,
If I may rephrase the motion, that it—as the zoning code as I understand
it, and I’ve got a number of years going through the zoning code back from
1992, I believe—it appears that this is not in harmony with the general
purpose and intent of the zoning code and the single-family residence. **
* And with that I’ll make a motion to deny the variance.
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(Transcript at 56-57). The Board, based on Mr. Bolden’s motion, then voted
unanimously to deny the Appellants’ request for a variance. At its next meeting, the
Board approved the Minutes for the January 30, 2019 Meeting (the “Minutes”), which
stated, “The Board * * * was of the opinion that this use would be detrimental to the
surrounding neighborhood * * *” and, therefore, denied the Appellants’ requested
variance. (Minutes at 15).
From the statements of Mr. Bolden, which the Board as a whole ratified by
passing his motion to deny the variance, it is clear that the Board found that the
requested variance constituted a campground and that a campground in a single-family
district was not “harmonious with and in accordance with the general objectives of the
City’s Comprehensive Plan.” A.C.O. § 153.474(A). Put another way, the Board found
that Appellants have failed to put forth adequate evidence to show that their proposed
campground at the Property would be “harmonious with and in accordance with the
general objectives of the City’s Comprehensive Plan.” Id. The meeting minutes, which
were approved by the Board, also found that the proposed campground would be
hazardous to the surrounding neighborhood—i.e., that Appellants had failed to set forth
adequate evidence to show that the campground would “not be hazardous or disturbing
to existing or future neighboring uses.” A.C.O. § 153.474(C).
Appellants argue that the Board needed to do or say more to support its decision,
suggesting that they do not know what the Board’s rationale for denying their requested
variance was. The statements of Mr. Bolden and the meeting minutes leave no doubt,
however. The Board found Appellants’ proposed campground to be inconsistent with
the City’s Zoning Code and Comprehensive Plan and was detrimental to the
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surrounding uses. Both of these factual findings were procedurally fatal to the
Appellants’ variance request as they were prerequisites for the Board to even
considering granting the request. See A.C.O. § 153.404. Accordingly, the record
before this Court contains sufficient findings by the Board to show its reasons for
denying the requested variance. Accord. Concerned Richfield Homeowners, 2010-
Ohio-4095, at ¶ 10.
APPELLANTS CANNOT RAISE AN AS-APPLIED CHALLENGE
Appellants argue that they should be permitted to supplement the record of the
proceedings before the Board because they intend to raise an as-applied challenge to
the City’s Zoning Code. (Appellants’ Motion at 5-9). Specifically, Appellants assert that
they “intend to argue that Appellant Lewis has constitutional rights under the Ohio
Constitution to use his property to rescue people from severe peril, and, as applied to
the facts of this case, the BZA decision deprives him of those rights.” (Motion at 5).
Appellants also assert that “Appellant The Homeless Charity, on behalf of its members
who are homeless, intends to argue that the BZA decision violates the expressly
enumerated right in the Ohio Constitution to seek and obtain happiness and safety.” 6
(Motion at 5-6). Appellants are barred from making those arguments by the doctrine of
res judicata and have also waived the arguments by not raising the issues before the
Board.
6 For the record, the Board does not concede that Appellant The Homeless Charity has
standing to make this argument.
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1. Appellants’ Constitutional Arguments are Barred by Res Judicata.
“ ‘[T]he doctrine of res judicata provides 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.” ’ ”
Brunswick Hills Twp. Bd. of Trustees v. Ludrosky, 972 N.E.2d 132, 2012-Ohio-2556, ¶ 8
(9th Dist.), quoting Perrine v. Patterson, 9th Dist. Summit No. 22993, 2006-Ohio-2559, ¶
22, quoting Grava v. Parkman Twp., 73 Ohio ST.3d 379, 653 N.E.2d 226 (1995),
syllabus. “Res judicata applies to administrative actions, where a party has failed to
properly appeal the administrative ruling under R.C. 2506.01.” Id. “ ‘The doctrine of res
judicata encompasses the two related concepts of claim preclusion, also known as res
judicata or estoppel by judgment, and issue preclusion, also known as collateral
estoppel.’ ” Strebler v. Morgan Stanley & Co., Inc., 9th Dist. Summit No. 27721, 2015-
Ohio-4034, ¶ 9, quoting O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-
Ohio-1102, ¶ 6. Claim preclusion “ ‘prevents subsequent actions, by the same parties,
or their privies, based upon any claim arising out of a transaction that was the subject
matter of a previous action.’ ” Id., quoting O’Nesti at ¶ 6. “ ‘[T]he previous action is
conclusive for all claims that were or that could have been litigated in the first action.’ ”
(Emphasis added.) Id., quoting State ex rel. Schachter v. Ohio Pub. Emps. Retirement
Bd., 121 Ohio St.3d 526, 2009–Ohio–1704, ¶ 27.
As noted in Appellants’ Brief, this is not the first time Appellants have sought an
exception to the City’s Zoning Code to operate a campground on the Property. See
(Appellants’ Motion at 4, fn.4) (asserting that Appellants are separately litigating the
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denial of their request for a conditional use permit7). Appellants previously applied for a
conditional use to operate a campground at the Property and City Council denied
Appellants’ petition. Appellants did not perfect a timely appeal of the denial, and their
attempted appeal was dismissed. See (February 15, 2019 Order in Summit C.P. No.
CV-2018-10-4270, a certified copy of which is appended to this Memorandum). Thus,
because the parties are exactly the same in this matter as in Appellants’ conditional use
matter, the doctrine of res judicata does not permit Appellants to raise any “ ‘claims that
were or that could have been litigated in’ ” that action. Strebler at ¶ 9, quoting
Schachter at ¶ 27. In other words, Appellants’ proposed constitutional claims are
barred by res judicata.8 Accord. Ludrosky at ¶ 8 (“Res judicata applies to administrative
actions, where a party has failed to properly appeal the administrative ruling under R.C.
2506.01.”).
Although Appellants attempt to frame their challenge as an as-applied challenge
to the Board’s decision, it is apparent from their Motion that their proposed constitutional
challenges do not go to the factual findings of the Board. They do not suggest that the
Board’s findings that Appellants had failed to establish that their requested variance was
harmonious with the City’s Comprehensive Plan and not detrimental to the existing or
7 Appellants attempt to characterize their petition for a conditional use as being “to
determine whether the [C]ity deemed the use of [the Property] as a zoning code
violation.” (Appellants’ Motion at 4, fn.4). Appellants’ characterization, however, is, at
best, misleading because a conditional use permit would be unnecessary if the
proposed use was already permitted. The fact that the operation of a campground on
the Prop
Preview
CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 1 of 31 IN THE COURT OF COMMON PLEAS SUMMIT COUNTY, OHIO THE HOMELESS CHARITY, LLC, et al. ) Case No. CV-2019-02-0684 ) Plaintiffs-Appellants ) Judge JILL FLAGG LANZINGER ) -vs- ) ) RESPONSE IN OPPOSITION TO AKRON BOARD OF ZONING APPEALS ) PLAINTIFFS-APPELLANTS’ ) MOTION TO SUPPLEMENT THE Defendant-Appellee ) RECORD Now comes Defendant-Appellee City of Akron Board of Zoning Appeals, by and through counsel, and hereby submits this Response in Opposition to the Motion to Supplement the Record filed by Plaintiffs-Appellants The Homeless Charity, LLC, Sage Lewis LLC, and Sage Lewis. As more fully set forth in the attached Memorandum in Support, Plaintiffs-Appellants’ Motion does not satisfy the requirements of R.C. 2506.03 for permitting additional evidence being added to the transcript. Furthermore, Plaintiffs- Appellants’ desire to now raise an as-applied challenge to the constitutionality of the zoning code of the City of Akron does not constitute grounds to supplement the record. Accordingly, this Court should deny Plaintiffs-Appellants’ Motion. Respectfully submitted, Eve V. Belfance Director of Law /s/ Brian D. Bremer John R. York (0065046) Brian D. Bremer (0087363) Assistant Director of Law 161 S. High St., Suite 202 Akron, Ohio 44308 (330) 375-2030 1 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 2 of 31 (330) 375-2041 (fax) jyork@akronohio.gov bbremer@akronohio.gov Attorneys for Defendant-Appellee 2 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 3 of 31 MEMORANDUM IN SUPPORT INTRODUCTION On December 6, 2018, the City of Akron (the “City”) issued a Notice of Violation/Order to Comply (the “Order”) to the owner of 15 Broad St., Akron, Ohio, (the “Property”) for operating a campground on the Property in violation of the City of Akron zoning code. Plaintiffs-Appellants Sage Lewis, Sage Lewis, LLC, and The Homeless Charity (collectively, “Appellants”) filed an appeal of the Order, requesting a variance to operate a campground at the Property. The matter came before the City Board of Zoning Appeals (the “Board”) at a hearing held on January 30, 2019 (the “Hearing”), at which Appellants were represented by counsel. The Board heard from proponents and opponents of the appeal, and, after hearing all of the evidence presented and having reviewed the submitted evidence, the Board denied Appellants’ request for a variance. Appellants have appealed the Board’s denial of their request for a variance pursuant to R.C. Chapter 2506 and have moved pursuant to R.C. 2506.03 to supplement the record before this Court. STANDARD FOR SUPPLEMENTING THE RECORD “When an appeal is taken under R.C. Chapter 2506 from a decision of an administrative agency, the appellant must file a praecipe with the administrative agency, who must then file a complete transcript of all the original papers, testimony, and evidence that was offered, heard, and taken into consideration in issuing the order appealed from. R.C. 2506.02.” Ward v. Cuyahoga Falls Bd. of Zoning, 9th Dist. Summit No. 27848, 2016-Ohio-7091, ¶ 15. “ ‘The hearing of an appeal taken in relation to a final order, adjudication, or decision * * * shall proceed as in the trial of a civil action, but the court shall be confined to the transcript as filed under [R.C. 2506.02] * * *.’ ” 1 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 4 of 31 (Alterations in Ward) Id., quoting R.C. 2506.03(A). An appellant may ask the common pleas court to supplement the record, however, if it appears, on the face of that transcript or by affidavit filed by the appellant, that one of the following applies: (1) The transcript does not contain a report of all evidence admitted or proffered by the appellant. (2) The appellant was not permitted to appear and be heard in person, or by the appellant's attorney, in opposition to the final order, adjudication, or decision, and * * * [c]ross-examine witnesses purporting to refute the appellant's position, arguments, and contentions; (3) The testimony adduced was not given under oath. (4) The appellant was unable to present evidence by reason of a lack of the power of subpoena by the officer or body appealed from, or the refusal, after request, of that officer or body to afford the appellant opportunity to use the power of subpoena when possessed by the officer or body. (5) The officer or body failed to file with the transcript conclusions of fact supporting the final order, adjudication, or decision. R.C. 2506.03(A).1 APPELLANTS’ ALLEGATIONS Appellants have moved to supplement the record before this Court, alleging that the transcript filed by the Board does not contain all of the evidence submitted or 1 Although R.C. 2506.03(A)(2) contains other potential exceptions to the general rule that a court hears administrative appeals on the record before the administrative body, Appellants do not allege those exceptions apply here. 2 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 5 of 31 proffered by them, that they could not cross-examine witnesses, that they were unable to present evidence because of the lack of subpoena power of the Board, and because the Board did not file conclusions of fact with the transcript.2 Appellants also argue that they should be permitted to supplement the record because they plan to bring an as- applied constitutional challenge to the Zoning Code of the City of Akron (the “Zoning Code”). This Court, however, should deny Appellants’ Motion to Supplement the Administrative Transcript on Appeal (“Appellants’ Motion”) because Appellants’ allegations are not supported by the face of the administrative record or by the affidavit of Diana Simpson submitted with Appellants’ Motion. Furthermore, Appellants’ proposed constitutional arguments are barred by res judicata and, in any case, R.C. Chapter 2506 makes no provision for the supplementing of the record based solely on as-applied constitutional arguments. Accordingly, this Court should deny Appellants’ Motion and hear this matter on the record of the evidence presented to the Board and the briefs of the parties. PAGES OMITTED FROM RECORD As an initial matter, Appellants correctly noted that six pages of the documentation they submitted to the Board as well as a page of the transcript of the 2 In a footnote, Appellants make a statement that it is unclear from the transcript whether Karen Pateos was sworn in during the hearing but do not otherwise argue that this forms a basis for supplementing the record before this Court. See (Appellants’ Motion at 13, fn. 14). Regardless, Ms. Pateos, along with all other speakers at the hearing, were sworn, and, in any case, Appellants’ waived this issue because they did not object during the hearing. (Minutes of January 30, 2019 Meeting of the Board at 1); Concerned Richfield Homeowners v. Richfield Planning & Zoning Comm., 9th Dist. Summit No. 25033, 2010-Ohio-4095, ¶ 8 (A party waives the right to supplement the record pursuant to R.C. 2506.03(A)(3) where they do not object to the lack of sworn testimony during the hearing before the administrative body.). 3 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 6 of 31 Hearing were omitted from the record submitted by the Board. As detailed in the Board’s Notice of Supplementing of the Record filed on April 22, 2019, the pages were mistakenly omitted as a result of the scanning process and have since been submitted to the court, thus correcting any error. Accordingly, to the extent the Appellants are seeking to supplement the record with those documents/pages, that has already occurred, rendering that portion of the Appellants’ Motion moot. APPELLANTS WERE NOT DENIED THE RIGHT TO CROSS-EXAMINE WITNESSES Appellants argue in their Motion that this Court should allow them to supplement the record because they were not permitted to cross-examine witnesses during the hearing before the Board. See R.C. 2506.03(A)(2). Appellants’ contention, however, is not supported by the transcript of the hearing or by Ms. Simpson’s affidavit submitted with their Motion. At no point during the hearing did Appellants attempt to cross- examine a witness, ask to cross-examine a witness, or object to not being permitted to cross-examine witnesses. This was despite being represented by counsel, who spoke during the hearing.3 In Concerned Richfield Homeowners v. Richfield Planning & Zoning Comm., 9th Dist. Summit No. 25033, 2010-Ohio-4095, the Ninth District held that a party may not attempt to supplement the record before the common pleas court when the party failed to object to an alleged defect in the proceeding before the administrative body. See id. at ¶ 8. Similarly, a party may not circumvent the requirement in R.C. 2506.03(A) that an administrative appeal should be heard on the record of the proceedings before the 3 It is important to note that Appellants have been represented by three attorneys throughout these proceedings, including the attorney who spoke to the Board. This is not a matter of an unsophisticated party being unaware of his or her rights. 4 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 7 of 31 administrative body by failing to exercise their rights before the body. R.C. 2506.03(B) clearly contemplates supplementing the record when the party seeking to supplement was deprived of the opportunity to engage in the process, not when the party voluntarily declined to do so. See, e.g., Zurow v. Cleveland, 61 Ohio App.2d 14, 24, 399 N.E.2d 92 (8th Dist.1978) (“Inasmuch as the [appellants] did not object to the Board’s failure to swear witnesses or raise the issue of examination or cross-examination during the proceedings before the Board, they waived their right to claim these errors in an appeal to the Common Pleas Court under R.C. Chapter 2506 and subsequently to this court.”). Otherwise, as long as the complaining party remained silent through the hearing, the party would be able to essentially retry the matter before the common pleas court, a result clearly against the plain meaning and intent of R.C. 2506.03. Accordingly, Appellants have failed to establish that the exception set forth in R.C. 2506.03(A)(2) applies and, therefore, have failed to establish that this Court should permit them to supplement the record of the hearing. THE APPELLANTS WERE NOT PREVENTED FROM PRESENTING EVIDENCE BECAUSE THEY LACKED SUBPOENA POWER Appellants argue that they should be permitted to supplement the record before this Court because they were unable to present evidence due to the lack of subpoena power of the Board. However, although Appellants attempt to frame their argument within the context of R.C. 2506.03(A)(4), their actual objection is that they were not permitted to conduct discovery consistent with the Rules of Civil Procedure. Specifically, Appellants argue that they “were not able to compile facts in the form of written discovery or deposition testimony because they lacked a subpoena power over city officials and third-party witnesses.” (Motion at 15). Notably, however, nothing in 5 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 8 of 31 R.C. 2506.03 contemplates an appellant’s right to conduct discovery consistent with the Rules of Civil Procedure and, in any case, Appellants’ arguments are purely speculative and not supported by the face of the record or by Ms. Simpson’s affidavit. See R.C. 2506.03(A). As noted above, this Court must hear the Appellants’ appeal on the record of the hearing before the Board unless “it appears, on the face of that transcript or by affidavit filed by the appellant” that one of the exceptions in R.C. 2506.03(A) applies. See id. Notably, Appellants’ Motion contains no citations either to the record before the Board or to the affidavit of Ms. Simpson as to what evidence they were prevented from presenting at the hearing because they could not issue subpoenas. See (Motion at 14- 15). Instead, Appellants argue that they were prejudiced because they could not conduct pre-hearing discovery. See (Motion at 15) (“Appellants were not given the chance to depose Ms. Pateos in advance * * *.”).4 However, while the subpoena power may, in some instances, be used to compel depositions, the right to conduct pre-hearing depositions comes from either statute or rules of procedure, not from the subpoena power. See, e.g., Crim.R. 15, Crim.R. 17(E), Civ.R. 30, and Civ.R. 45. Rather, the power of subpoena is, innately, the power to compel an individual’s testimony before a tribunal or for the disclosure of records. See, e.g., Black’s Law Dictionary (10th Ed.2014) (defining “subpoena” as “A writ or order commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply.”). Accordingly, Appellants’ argument that they were unable to depose Ms. Pateos prior to the hearing 4 Although Appellants claim they could not cross-examine Ms. Pateos, this is an inaccurate statement. As detailed above, they did not exercise their right to cross- examine her, which is not the same. 6 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 9 of 31 essentially constitutes an objection to the administrative process generally but does not establish that they were unable to put on evidence because the Board could not subpoena witnesses. Appellants also state that they “were unable to determine who authored the memorandum from the Department of Planning and Urban Development that recommended affirming the Notice of Violation/Order to Comply and denying the requested variance.” (Motion at 15). Appellants, however, do not explain how the subpoena power would have enabled them to learn this information. Nevertheless, they suggest that “[h]ad [they] been able to determine who authored the memorandum and then been able to subpoena and depose the author (or the entity itself), they would have had the opportunity to determine the factual basis for material assertions in the memorandum.” (Motion at 15). Appellants argument, however, is again merely an objection to the administrative process not following the Rules of Civil Procedure. It does not establish that they could not present evidence because they could not avail themselves of the subpoena power. Furthermore, Appellants’ argument is purely speculative because it is not clear from the face of the record before this Court that the author of the Planning Staff Memorandum was not already present at the hearing. Put another way, if the author of the report was present at the Hearing and testified, then any attempt to subpoena that individual would have been redundant and, therefore, the lack of subpoena power would have had no effect on Appellants’ ability to present evidence. In this case, Karen Pateos and Mike Antenucci are both members of the Department of Planning and both attended the Hearing and testified. Because both Ms. Pateos and Mr. Antenucci both 7 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 10 of 31 testified at the Hearing, a subpoena compelling their attendance at the hearing would have been unnecessary. Therefore, if either Ms. Pateos or Mr. Antenucci had drafted the Planning Staff Memorandum, Appellants would not have needed to subpoena them in order to question them about the statements made in the Memorandum. Thus, it is not clear from the face of the record that the Appellants were prevented from presenting evidence because they could not subpoena the author of the Planning Staff Memorandum. It should also be noted that Appellants could have inquired as to the identity of the drafter of the Planning Staff Memorandum by asking either Ms. Pateos or Mr. Antenucci during the hearing.5 Similarly, Appellants could have inquired about the concepts and opinions stated in the document. Knowing who authored the Memorandum is not as critical as being able to explore the contents of the document with the person who is advancing the opinion of the Planning Department. Thus, in order to establish that they were prevented from presenting evidence, Appellants would have needed to have questioned the planning staff members present at the hearing and those witnesses would have had to deny having knowledge of the contents of the report. As noted above, however, Appellants did not ask any questions of the witnesses at the Hearing and, therefore, the record does not support the conclusion that they were prevented from learning who authored the memorandum or that they were prevented 5 For the record, Ms. Pateos and Mr. Antenucci worked together to draft the report. Thus, not only does the record fail to establish Appellants were prevented from presenting evidence. In fact, they cannot successfully make this claim because the very individuals Appellants wanted to question were at the Hearing. 8 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 11 of 31 from presenting evidence because they could not subpoena the author of the memorandum. Accordingly, Appellants have failed to demonstrate that the exception set forth in R.C. 2506.03(A)(4) permits this Court to supplement the record in this matter. CONCLUSIONS OF FACT Appellants also allege that the record before this Court does not contain conclusions of fact from the Board, and, therefore, this Court should permit them to supplement the record. R.C. 2506.03(A)(5), however, “does not require the conclusions of fact to take any specific form,” nor is the administrative body required “to file a separate document entitled ‘Conclusions of Fact.’ ” Concerned Richfield Homeowners, 2010-Ohio-4095, at ¶ 10. Instead, the only requirement is that the administrative body’s reasons for reaching its decision be apparent from the record before the court. Id. The record in this case does just that. In order to evaluate the Board’s factual findings, however, it is necessary to look at the standard for granting a variance under the City’s Zoning Code. Akron Code of Ordinances (A.C.O.) § 153.404 provides, The Board of Zoning Appeals may, on appeal in a specific case, after public notice and hearing, vary the application of certain of the regulations established in this Zoning Code in harmony with their general purpose and intent. These variances shall be authorized only when the Board finds adequate evidence that they will meet the criteria set forth in Sections 153.474 and 153.476. In other words, before the Board may even consider exercising its discretion to grant a requested variance, it must make several factual findings, which are set forth in A.C.O. 9 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 12 of 31 § 153.474. The Board must find that the party requesting a variance set forth adequate evidence to establish that the variance A. Will be harmonious with and in accordance with the general objectives of the City's Comprehensive Plan; B. Will be designed, constructed, operated, and maintained so as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity and will not change the essential character of the same area; C. Will not be hazardous or disturbing to existing or future neighboring uses; D. Will be served adequately by essential public facilities such as highways, streets, police and fire protection, drainage structures, refuse disposal, water and sewers and schools; or that the person or agency responsible for the establishment of the proposed use shall be able to provide adequately any such services; E. Will not create excessive additional requirements at public cost for public facilities and services, and will not be detrimental to the economic welfare of the community, F. Will not involve uses, activities, processes, materials, equipment, and conditions of operation that will be detrimental to any person or property or the general welfare by reason of excessive production of traffic, noise, smoke, fumes, glare, or odors; 10 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 13 of 31 G. Will have vehicular approaches to the property which shall be so designed as not to create an interference with traffic on surrounding public streets or roads; H. Will not result in the destruction, loss, or damage of a natural, scenic, or historic feature of major importance. A.C.O. § 153.474. These factual findings are prerequisites for the Board exercising its discretion and the failure to establish any of them necessitates the denial of a requested variance. See A.C.O. § 153.404. Prior to voting to deny Appellant’s requested variance, one of the Board members (Bruce Bolden) spoke at length about whether the requested variance (i.e., a campground) was consistent with the single-family use in the area: The zoning code 153.404 sets out what we can and can’t do, and unfortunately, or fortunately, however you look at it, it does not allow us to say , yes, you can keep the campground. It goes into the reasons why we can’t and that goes into the 153.474 that talks about whether these,--we grant zoning that is harmonious to the zoning code, and, quite frankly, they’re not allowed in these areas. (Transcript at 49). Mr. Bolden went on to state, If I may rephrase the motion, that it—as the zoning code as I understand it, and I’ve got a number of years going through the zoning code back from 1992, I believe—it appears that this is not in harmony with the general purpose and intent of the zoning code and the single-family residence. ** * And with that I’ll make a motion to deny the variance. 11 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 14 of 31 (Transcript at 56-57). The Board, based on Mr. Bolden’s motion, then voted unanimously to deny the Appellants’ request for a variance. At its next meeting, the Board approved the Minutes for the January 30, 2019 Meeting (the “Minutes”), which stated, “The Board * * * was of the opinion that this use would be detrimental to the surrounding neighborhood * * *” and, therefore, denied the Appellants’ requested variance. (Minutes at 15). From the statements of Mr. Bolden, which the Board as a whole ratified by passing his motion to deny the variance, it is clear that the Board found that the requested variance constituted a campground and that a campground in a single-family district was not “harmonious with and in accordance with the general objectives of the City’s Comprehensive Plan.” A.C.O. § 153.474(A). Put another way, the Board found that Appellants have failed to put forth adequate evidence to show that their proposed campground at the Property would be “harmonious with and in accordance with the general objectives of the City’s Comprehensive Plan.” Id. The meeting minutes, which were approved by the Board, also found that the proposed campground would be hazardous to the surrounding neighborhood—i.e., that Appellants had failed to set forth adequate evidence to show that the campground would “not be hazardous or disturbing to existing or future neighboring uses.” A.C.O. § 153.474(C). Appellants argue that the Board needed to do or say more to support its decision, suggesting that they do not know what the Board’s rationale for denying their requested variance was. The statements of Mr. Bolden and the meeting minutes leave no doubt, however. The Board found Appellants’ proposed campground to be inconsistent with the City’s Zoning Code and Comprehensive Plan and was detrimental to the 12 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 15 of 31 surrounding uses. Both of these factual findings were procedurally fatal to the Appellants’ variance request as they were prerequisites for the Board to even considering granting the request. See A.C.O. § 153.404. Accordingly, the record before this Court contains sufficient findings by the Board to show its reasons for denying the requested variance. Accord. Concerned Richfield Homeowners, 2010- Ohio-4095, at ¶ 10. APPELLANTS CANNOT RAISE AN AS-APPLIED CHALLENGE Appellants argue that they should be permitted to supplement the record of the proceedings before the Board because they intend to raise an as-applied challenge to the City’s Zoning Code. (Appellants’ Motion at 5-9). Specifically, Appellants assert that they “intend to argue that Appellant Lewis has constitutional rights under the Ohio Constitution to use his property to rescue people from severe peril, and, as applied to the facts of this case, the BZA decision deprives him of those rights.” (Motion at 5). Appellants also assert that “Appellant The Homeless Charity, on behalf of its members who are homeless, intends to argue that the BZA decision violates the expressly enumerated right in the Ohio Constitution to seek and obtain happiness and safety.” 6 (Motion at 5-6). Appellants are barred from making those arguments by the doctrine of res judicata and have also waived the arguments by not raising the issues before the Board. 6 For the record, the Board does not concede that Appellant The Homeless Charity has standing to make this argument. 13 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 16 of 31 1. Appellants’ Constitutional Arguments are Barred by Res Judicata. “ ‘[T]he doctrine of res judicata provides 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.” ’ ” Brunswick Hills Twp. Bd. of Trustees v. Ludrosky, 972 N.E.2d 132, 2012-Ohio-2556, ¶ 8 (9th Dist.), quoting Perrine v. Patterson, 9th Dist. Summit No. 22993, 2006-Ohio-2559, ¶ 22, quoting Grava v. Parkman Twp., 73 Ohio ST.3d 379, 653 N.E.2d 226 (1995), syllabus. “Res judicata applies to administrative actions, where a party has failed to properly appeal the administrative ruling under R.C. 2506.01.” Id. “ ‘The doctrine of res judicata encompasses the two related concepts of claim preclusion, also known as res judicata or estoppel by judgment, and issue preclusion, also known as collateral estoppel.’ ” Strebler v. Morgan Stanley & Co., Inc., 9th Dist. Summit No. 27721, 2015- Ohio-4034, ¶ 9, quoting O’Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007- Ohio-1102, ¶ 6. Claim preclusion “ ‘prevents subsequent actions, by the same parties, or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action.’ ” Id., quoting O’Nesti at ¶ 6. “ ‘[T]he previous action is conclusive for all claims that were or that could have been litigated in the first action.’ ” (Emphasis added.) Id., quoting State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009–Ohio–1704, ¶ 27. As noted in Appellants’ Brief, this is not the first time Appellants have sought an exception to the City’s Zoning Code to operate a campground on the Property. See (Appellants’ Motion at 4, fn.4) (asserting that Appellants are separately litigating the 14 Sandra Kurt, Summit County Clerk of Courts CV-2019-02-0684 FLAGG LANZINGER, JILL 04/29/2019 21:37:20 PM RESP Page 17 of 31 denial of their request for a conditional use permit7). Appellants previously applied for a conditional use to operate a campground at the Property and City Council denied Appellants’ petition. Appellants did not perfect a timely appeal of the denial, and their attempted appeal was dismissed. See (February 15, 2019 Order in Summit C.P. No. CV-2018-10-4270, a certified copy of which is appended to this Memorandum). Thus, because the parties are exactly the same in this matter as in Appellants’ conditional use matter, the doctrine of res judicata does not permit Appellants to raise any “ ‘claims that were or that could have been litigated in’ ” that action. Strebler at ¶ 9, quoting Schachter at ¶ 27. In other words, Appellants’ proposed constitutional claims are barred by res judicata.8 Accord. Ludrosky at ¶ 8 (“Res judicata applies to administrative actions, where a party has failed to properly appeal the administrative ruling under R.C. 2506.01.”). Although Appellants attempt to frame their challenge as an as-applied challenge to the Board’s decision, it is apparent from their Motion that their proposed constitutional challenges do not go to the factual findings of the Board. They do not suggest that the Board’s findings that Appellants had failed to establish that their requested variance was harmonious with the City’s Comprehensive Plan and not detrimental to the existing or 7 Appellants attempt to characterize their petition for a conditional use as being “to determine whether the [C]ity deemed the use of [the Property] as a zoning code violation.” (Appellants’ Motion at 4, fn.4). Appellants’ characterization, however, is, at best, misleading because a conditional use permit would be unnecessary if the proposed use was already permitted. The fact that the operation of a campground on the Prop