THE STATE EX REL. SPENCER, APPELLANT, v. EAST LIVERPOOL PLANNING COMMISSION, APPELLEE.
No. 99-52
SUPREME COURT OF OHIO
Submitted May 26, 1999—Decided June 23, 1999.
85 Ohio St.3d 678 | 1999-Ohio-334
APPEAL from the Court of Appeals for Columbiana County, No. 95-CO-17.
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{¶ 1} The Columbiana County Port Authority owned 27.54 acres of property in the city of East Liverpool. In September 1992, the port authority transferred a parcel of 20.80 acres to Waste Technologies Industries (“WTI“) by general warranty deed and assignment of lease. The deed and assignment, which referred to several easements of access, were filed with the Columbiana County Recorder. Appellee, East Liverpool Planning Commission, did not pre-approve the conveyance.
{¶ 2} In 1995, appellant, Alonzo Spencer, filed a complaint in the Court of Appeals for Columbiana County for a writ of mandamus to compel the planning commission to institute an action under East Liverpool Codified Ordinances 1159.01 to strike from the records of the county recorder as illegal the plat of the property conveyed in September 1992. Section 1159.01 provides:
“No plat of any subdivision shall be entitled to record in the office of Recorder of Columbiana County or have any validity until it has been approved in the manner prescribed herein. In the event any such unapproved plat is recorded, it shall be considered invalid, and the Planning Commission shall institute
proceedings to have the plat stricken from the records of Columbiana County.” (Emphasis added.)
{¶ 3} In 1997, the court of appeals granted the planning commission‘s motion for summary judgment and denied the writ. State ex rel. Spencer v. E. Liverpool Planning Comm. (Jan. 31, 1997), Columbiana App. No. 95-CO-17, unreported, 1997 WL 52892.
{¶ 4} On appeal, we reversed the judgment of the court of appeals. State ex rel. Spencer v. E. Liverpool Planning Comm. (1997), 80 Ohio St.3d 297, 685 N.E.2d 1251. We found that Spencer had standing to bring the mandamus action, that the action was not barred by laches, and that the challenged conveyance created new easements of access.1 Id. In addition, we held that there remained a genuine issue of material fact regarding whether a plat had been recorded, and remanded the cause to the court of appeals to conduct further proceedings. 80 Ohio St.3d at 301, 685 N.E.2d at 1254-1255. We stated that “if no plat was recorded, Section 1159.01 [of the East Liverpool Codified Ordinances], which Spencer is seeking to enforce via mandamus, does not apply.” Id. at 301, 685 N.E.2d at 1254.
{¶ 5} On remand, the parties filed memoranda and evidence in support of their motions for summary judgment. Spencer contended that a plat had been recorded, while the planning commission claimed that no plat of the property conveyed in September 1992 had ever been recorded. The planning commission submitted evidence that in August 1998, the original general warranty deed was presented to and approved by the planning commission, which stamped on the deed, “Approved by the East Liverpool Planning Commission; No Plat Required,” and
{¶ 6} The court of appeals granted the planning commission‘s motion for summary judgment and denied the writ, holding that the “issue of whether the original plat was approved prior to being recorded is now moot since that deed was submitted and approved by the Planning Commissioner in August of 1998 and re-recorded” pursuant to
{¶ 7} This cause is now before the court upon an appeal as of right.
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Betras, Maruca & Kopp, LLC and David J. Betras, for appellant.
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Per Curiam.
{¶ 8} Spencer asserts in his propositions of law that the court of appeals erred in denying the requested writ to compel the planning commission to strike the unapproved plat under East Liverpool Codified Ordinances 1159.01.
{¶ 9} In his first proposition of law, Spencer contends that because the property conveyed had never been platted, as required by
{¶ 10} Spencer erroneously relies on
{¶ 11} In addition, because Spencer now concedes for the first time on appeal that the property was never platted, he cannot obtain a writ of mandamus to strike a plat that does not exist. Mandamus will not issue to compel an impossible act. State ex rel. Newell v. Cuyahoga Cty. Court of Common Pleas (1997), 77 Ohio St.3d 269, 270, 673 N.E.2d 1299, 1300.
{¶ 12} Finally, we need not consider the merits of Spencer‘s second proposition of law, which challenges the constitutionality of
{¶ 13} Based on the foregoing, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.
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