Newburgh Heights does not here contend that its zoning ordinance is constitutional with respect to the Kaufman parcel, but that Kaufman had no right to attack that constitutionality without first appealing to the board of zoning appeals. We disagree, and, therefore, affirm.
It is axiomatic that the doctrine of “failure to exhaust administrative remedies available” may be a defense to an action in mandamus (State, ex rel. Schindel, v. Rowe [1971],
Pursuant to R. C. 713.11, Newburgh Heights created an administrative board, entitled “Board of Zoning Appeals,”
However, Newburgh Heights chose to delegate to its board of zoning appeals only the power to “adopt such rules and regulations as it may deem necessary to carry into effect the provisions” of its zoning ordinance and “where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of [the zoning ordinance] ... in a specific case, to interpret any such provision in harmony with the general purpose and intent of . . . [the zoning ordinance] so that its public health, safety, and general welfare may be secured and so that substantial justice may be done.”
We cannot infer from that language an intent on the part of the legislative authority of the village that the board of zoning appeals should have power to permit exceptions to, and variations from, the regulations. (Cf. L. & M. Investment Co. v. Cutler [1932],
Therefore, no effectual or adequate administrative remedy being available to appellee, he was entitled to seek a declaratory judgment in an original action.
Judgment affirmed.