163 N.E.2d 778 | Ohio Ct. App. | 1960
This is an original action filed in this court wherein the relators seek a writ of mandamus ordering the respondents, the Building Inspector of Middleburg Heights, the members of the Zoning Board of Appeals, the Mayor of the village, and the village of Middleburg Heights, to issue a building permit in accord with an application filed with the village, to build a gasoline station on the southwest corner of East Bagley Road and West 130th Street in that village. The respondents have filed a demurrer wherein it is claimed that the petition does not state a cause of action.
The petition, after describing the property as located in the village of Middleburg Heights and alleging relators' ownership thereof, and also identifying the several respondents in their official capacities with the village and describing the village as a respondent, alleges that the property on all four corners at the intersection of East Bagley Road and West 130th, including relators' property, is vacant land and that the relators' property is zoned for residence purposes. It is further alleged that the property on all four corners is located in an area lower than the residential properties and homes surrounding the area. The land to the rear of the parcel concerned and as above described and facing on East Bagley Road has recently been zoned semicommercial for church purposes.
It is alleged that the relators, on May 1, 1959, filed a written application with the Building Commissioner of the village as required by the village Building Code and on the form prescribed therefor, to erect a gasoline service station on their property, which application was accompanied by a detailed set of plans and specifications which, it is alleged, conformed in all respects with the building regulations of the village. (The allegation that such application conformed to zoning regulations is clearly a misstatement of fact.) It is alleged that the application was denied by the Building Commissioner "solely on the basis of zoning regulations of the village of Middleburg Heights, Ohio, under village Ordinance No. 1955-41, which restricts said location to residential use." It is alleged that upon appeal and hearing before the legally constituted Zoning Board of Appeals, in which administrative procedure was fully complied with, the board approved the ruling of the Building Inspector and Planning *89 Commission and denied the application on the basis that the same was contrary to the zoning ordinance of the village of Middleburg Heights, Ohio.
It is alleged further that the village ordinance which restricts the use of relators' property to residential use is unlawful and invalid for the reason that it constitutes an unlawful delegation of legislative powers to an administrative body, to wit, the Zoning Board of Appeals, because there is no criteria properly established on the basis of which the Zoning Board of Appeals may exercise its discretion except as provided in Subsection (h) of Section 22 of Ordinance No. 1955-41, which states:
"Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this ordinance, the Board of Appeals shall have power to vary the application of any provision in harmony with the general purpose and intent of this ordinance, so that the public health, safety, morals, and general welfare may be secured and substantial justice done, and may order a public notice and hearing before acting.
"Variations in specific cases of practical difficulty or unnecessary hardship, in addition to other proper variations, shall include the following:
"2. Permit in any district such modifications of the requirements of this ordinance as said board may deem necessary to secure an appropriate development of a lot or parcel where adjacent to such lot or parcel there are buildings or uses which do not conform to the regulations of this ordinance, provided that the board shall find no material damage or depreciation in value will result to neighboring properties.
"* * *
"6. Permit in a use district any use deemed by the Planning Commission in general keeping with the uses authorized in such district."
It is alleged further that the decision of the Board of Appeals was whimsical and arbitrary and that it abused its discretion in denying relators' application. Also, it is alleged that the board failed to set up standards to guide its action or that of property owners under the terms of the ordinance. It is alleged that the sections of Ordinance No. 1955-41, here involved, are *90
arbitrary, unreasonable, confiscatory and deprive relators of their property without due process of law in violation of Article XIV, Amendments, of the Constitution of the United States, and Sections
The demurrer presents two questions:
(1.) Whether, under Sections
Section
"Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station."
Section
"The writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law."
In considering the first question presented by the demurrer as to whether the relators can seek relief in mandamus where an appeal from the final decision of the Zoning Board of Appeals is, at least, possible, under Chapters 2505 and 2506 of the Revised Code, the answer must be that in a proper case mandamus is available. The deciding factor is whether such an appeal provides an adequate remedy in the ordinary course of the law. There are many cases where such an appeal will not afford an adequate legal remedy, where the relator is, upon the undisputed facts, clearly entitled to the relief asked and the processes of appeal would be subject to unreasonable delay in *91 affording relief. The selection of remedies is to be determined by a consideration of the purposes to be accomplished, based on the facts involved.
It has been said many times that mandamus cannot be used as a substitute for an appeal. In the case of State, ex rel.Brammer, v. Hayes, Clerk of Courts,
In the case of Eggers v. Morr et al., County Commrs.,
"1. Where an administrative agency has jurisdiction to make an order in a matter pending before it, and a right of appeal from such order to the Court of Common Pleas is provided by law to any person adversely affected thereby, such person is not authorized to bring an independent action in equity to enjoin the carrying out of such order, where the grounds relied upon in seeking the injunction are such as could be fully litigated in the appeal authorized by law.
"2. Mere inconvenience in complying with the necessary steps in taking such an appeal does not constitute an excuse for resorting to an independent action for an injunction in lieu of taking the appeal."
While the Eggers case is one in equity and an action in mandamus is an action at law, yet, because mandamus is a high prerogative writ, limited in its use to clear necessity within statutory limitations, the principles used in the decision in that case (Eggers) are applicable to an action in mandamus. Those cases represent the clear trend of the law denying mandamus where there is an adequate remedy in the ordinary course of the law. Also, in such actions, mandamus cannot be used as a substitute for appeal even when on the face of the record the action of the court was clearly against the law. See, also, State, ex rel. City of Cincinnati, v. Moulton et al.,Public Utilities Comm.,
In volume 168 of the Ohio State Reports, the Supreme Court reports its decisions of the following cases in which it was clear the relators did not have a clear right to the relief prayed for, and, therefore, mandamus was denied.
State, ex rel. Bd. of Edn. of Miami Trace Local School Dist., *93 Fayette County, v. Thompson, Clerk,
State, ex rel. Iaus, v. Carlton,
State, ex rel. Oliver, v. State Civil Service Comm.,
State, ex rel. Schafer, v. Citizens Natl. Bank of Ironton,
State, ex rel. DeVille Photography, Inc., v. McCarroll,Judge,
State, ex rel. General Contractors Assn. of Akron andVicinity, v. Wait, Dir.,
State, ex rel. Hauck, v. Bachrach,
State, ex rel. Ristine, v. Haines, Dir.,
On the other hand, the courts have on many occasions held that mandamus is a proper remedy where, under the undisputed facts, it is the clear duty of the respondent to perform the act demanded by the relator even though there might have been provided as a part of the rules of the administrative agency involved procedure by which an appeal might ultimately be carried to the highest court of the state. In the case ofState, ex rel. Killeen Realty Co., v. City of East Cleveland,
"An action in mandamus will lie to compel designated municipal officials to issue a building permit in accordance with the municipality's zoning ordinances."
And, on pages 377 and 378 of the opinion, the court said:
"The right to maintain such an action as the instant one has been determined in a long line of cases in which this court has consistently held that a writ of mandamus may be allowed to compel the granting of building permits denied by local authorities on zoning grounds. Those cases include State, exrel. *95 Wiegel et al., Trustees, v. Randall, Dir.,
It must be concluded that Sections
In the case of State, ex rel. Cubbon, v. Winterfeld et al.,Bd. of Trustees,
"1. A court may, in the exercise of sound discretion, grant *96 a writ of mandamus if the available ordinary legal remedy is not plain and adequate.
"2. A person has a clear legal right to a certificate of occupancy on an existing nonconforming residential use under a township zoning resolution providing for the issuance of a certificate of occupancy on such a lawful nonconforming use and Section
"3. Section
In the case of State, ex rel. Emmich, v. IndustrialCommission,
"1. Section 12287, General Code [now Section
In the case of State, ex rel. Selected Properties, Inc., v.Gottfried,
"1. If a zoning ordinance of a municipality does not contain sufficient criteria or standards to guide the administrative officer or tribunal in the exercise of the discretion vested in it, such enactment is unconstitutional and invalid.
"2. A municipal zoning ordinance which provides merely that the use of property for a gasoline and oil filling station in a retail business district is allowed only in accordance with the provisions of a variance permit issued by the Board of Appeals is unconstitutional and void for want of standards or criteria for the guidance of such administrative tribunal and for the protection of citizens.
"3. Under the common law, as restated in Section
The propriety of the relator in the Gottfried case, supra,
seeking redress by a writ of mandamus to override the decision of a municipal officer or board must have been before the court as is clearly evident from a reading of the dissenting opinion of Judge Taft. However, on page 477, Judge Taft, in considering and quoting Section
"`The writ of mandamus must not be issued when there is a plain and adequate remedy [not merely `at law' but] in the ordinary course of the law.' (Emphasis added.)
"Of course, this statute cannot limit the jurisdiction of this court in mandamus, because that jurisdiction is conferred upon the court by the Constitution. The jurisdiction in mandamus so conferred upon this court is the common-law jurisdiction as it was exercised in this state in 1851 when first conferred upon the court by the Constitution. State, ex rel. Moyer, v.Baldwin, supra [
This same principle must apply to the Court of Appeals whose jurisdiction to try a petition seeking a writ of mandamus in the exercise of its original jurisdiction is derived from the Constitution. Not only is Section
"1. The `adequate remedy' factor in the rule that a writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of law, means a remedy complete in its nature, beneficial and speedy.
"2. When a suit of mandamus seeks to require a public officer to perform a duty imposed upon such officer by law, a relator has no adequate remedy in the ordinary course of law unless a legal remedy, other than mandamus, will require the officer to perform, in effect, the specific act the law requires of the officer."
In the case of State, ex rel. Associated Land InvestmentCorp., v. City of Lyndhurst,
"A provision in a comprehensive municipal zoning ordinance, which requires that buildings, other than dwellings, churches, theatres, assembly halls, retail stores and shops, thereafter erected or remodeled or altered shall have `parking space reasonably adequate for commercial vehicles necessary to carry on the business of the occupants of the premises and for the normal volume of car parking by persons coming to the premises on matters incidental to the uses thereof,' does not contain sufficient criteria or standards to guide the administrative officer or tribunal in the exercise of the discretion vested in it and is unconstitutional and invalid. * * *"
From the foregoing discussion, we must conclude that the tests to be applied to the relators' petition are, first, Is he clearly and legally entitled to the relief prayed for? This question is not answered by the possibility that the performance of the act prayed for might be determined as established by the greater weight of the evidence in a trial of the facts. It must be an act to which the relator is entitled as a matter of law. And, second, is there an adequate remedy in the course of the law, taking into consideration the nature of the act required, and whether the benefits to be derived by the performance of the act will be destroyed by delay, or otherwise impaired when relief is sought by other legal or equitable remedies?
The allegations of the relators' petition, as herein set out, do not meet the tests when applied to the facts pleaded. The relators' land is in an area only partially developed with no indication whatever that the legislative judgment as to the relators' *100 claims are not in all respects correct or that they are in fact not necessary for the protection of the public morals, health, safety and for the good of the proper development of the surrounding territory. The facts pleaded show no clear right to the relief prayed for. The demurrer must, therefore, be sustained.
Demurrer sustained.
HURD, P. J., and KOVACHY, J., concur.