166 N.E. 228 | Ohio | 1929
This action having been instituted on October 16, 1928, the question presented is whether the relator was then entitled to the writ of mandamus prayed for. If it was, any action thereafter taken by the municipal authorities, whether by so-called emergency ordinance or otherwise, cannot serve to defeat that right or affect the jurisdiction of the court to grant the remedy to which the relator was then entitled. It is to be borne in mind that the plan of the proposed structure is not in conflict with any laws of the city or state; that is conceded. The permit applied for was denied only upon the ground that the city planning commission *355 had proposed a zoning plan with which the proposed building "may conflict because of its character, but not because of the violation of the state or city building codes." The denial of such permit was therefore based upon the possibility that such building constructed in accordance with the proposed plans would conflict with an ordinance theretofore introduced in the council of the city of Youngstown, in the event such ordinance should thereafter be enacted. It is therefore conceded that on the 10th day of October, when the relator's application for the permit was renewed, and also on the 16th of October, when relator's action in mandamus was instituted, there was neither any law nor ordinance which in any wise forbade the erection of such building in accordance with the proposed plans and specifications, or precluded the issuance of a permit therefor.
An inspector of buildings may not arbitrarily refuse the issuance of a building permit. It was quite recently held by this court in the case of State, ex rel. Gaede, v. Guion,Commr. of Bldgs.,
Judgment reversed and writ allowed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS and ALLEN, JJ., concur.