Summary
In Bloom, we stated, "Where the term `owner' is employed with reference to land or buildings, it is commonly understood to mean the person who holds the legal title."
Summary of this case from Performing Arts Sch. of Metro. Toledo v. WilkinsOpinion
No. 34359
Decided July 27, 1955.
Building permits — Application for and issuance of — Application and permit must show name of owner — Mandatory ordinance requirements not complied with — Action to enjoin construction of building — Parties plaintiff — Construction enjoined where ordinance requirements disregarded.
1. Interested and affected owners of residential real property may maintain an action to enjoin the construction of a building on nearby premises, to be used for a mechanized car wash, upon the allegations that neither the application for the building permit nor the permit issued pursuant thereto complies with the mandatory requirements of municipal ordinances that the application must be made by the owner or by his authorized agent, that it must contain the full name and address of the owner, and that the permit itself must show the owner's name.
2. Where upon the trial of such action it is shown that such ordinance requirements have been disregarded in the essential details above described, the plaintiffs are entitled to an injunction restraining the construction of such building.
APPEAL from the Court of Appeals for Hamilton County.
Laurence P. Bloom, Jr., and Harry Bloom, owners of an apartment building situated on Reading Road, north of Avon Drive, in the city of Cincinnati, instituted an action in the Court of Common Pleas of Hamilton County on behalf of themselves and other owners of real property in the vicinity to enjoin the issuance of a building permit for and the construction on nearby premises of a building to be used for the operation of a mechanized "minute car wash."
Named as defendants were Helen Wides and Bessie Pockros, owners of the property where the car wash is to be established, Philip M. Shaw, who applied for the building permit, Ben Wides, who is to operate the car-wash business, Fred F. McMinn, Commissioner of Buildings of the City of Cincinnati, who issued the building permit after the commencement of the present action, and the city of Cincinnati.
The amneded petition in the trial court alleged that the proposed building to be used for the purpose described will be in violation of the zoning ordinance of the city of Cincinnati, will constitute a nuisance because of noise, vibration and traffic congestion and will be extremely detrimental to surrounding property occupied for residence purposes.
A joint answer was filed by Helen Wides, Bessie Pockros, Ben Wides and Philip M. Shaw, and an answer was also filed by the city of Cincinnati. The cause then came on for hearing on the pleadings, evidence and the written and oral arguments of counsel.
The trial court found that the proposed structure and its use would violate certain sections of the Cincinnati zoning ordinance. A permanent injunction was issued restraining the construction of the building for the operation of a car wash, and it was further ordered that the permit issued authorizing such construction and use be cancelled for the reason that it is null and void.
An appeal on questions of law and fact was taken to the Court of Appeals where new pleadings were filed in the form of an amended petition, the joint answer of Helen Wides, Bessie Pockros, Ben Wides and Philip M. Shaw, and a reply. In the amended petition the question of the validity of the application for the building permit and the validity of the permit issued pursuant to such application is raised.
Plaintiffs were again successful in the Court of Appeals, and that court entered a decree similar to the one entered by the court below.
The allowance of a motion to require the Court of Appeals to certify its record brings the cause here for review on its merits.
Mr. Milton H. Schmidt and Mr. Harry Kasfir, for appellees.
Mr. Nathan Solinger, Mr. Louis Weiland, Mr. Henry M. Bruestle, city solicitor, and Mr. Edgar W. Holtz, for appellants.
It is earnestly contended by the plaintiffs, appellees in this court, that the judgment of the Court of Appeals should be affirmed on the basis that the permit for the construction of the building to accommodate the car-wash business was not applied for by and was not issued to the "owner" in accordance with the Code of Ordinances of the City of Cincinnati, and that it is a nullity.
Section 1121 of the building code is headed, "Application for Permits."
Subdivision (a) thereof provides that the application shall be made by the owner of the building involved, or by his authorized agent, architect, engineer or contractor employed in connection with the proposed work.
Subdivision (b) of the same section contains the mandate that the written application for a building permit shall contain the full names and addresses of the owner, applicant and contractor and a statement in behalf of the owner that the proposed work and occupancy will comply with all applicable laws and ordinances.
Section 1130 of the building code relates to permit fees and includes the statement that each permit issued by the Commissioner of Buildings shall show the owner's name.
In the Court of Appeals the opposing parties by their counsel entered into an "agreed stipulation of facts" and a "supplemental stipulation of facts." Item 10 of the supplemental stipulation reads:
"Defendant, Ben Wides, did not, at the time of applying for the building permit, have title to the subject real estate, title thereto being in Helen Wides and Bessie Pockros. By virtue of the understanding among Ben Wides, Helen Wides, and Bessie Pockros, Ben Wides was to construct and finance the proposed building and was to operate the proposed mechanized car-wash business under a long term lease entered into with him by Helen Wides and Bessie Pockros as lessors. Such a written lease, or a written agreement therefor, has as yet not been prepared or executed among Ben Wides, Helen Wides and Bessie Pockros."
An examination of the written application for the building permit shows that it was made by "Phil M. Shaw," without further description. Such application states the owner's name as "Ben Wides." No reference whatsoever is made to Helen Wides or Bessie Pockros.
The building permit issued by Fred F. McMinn, Commissioner of Buildings, recites:
"Owner Ben Wides is hereby granted this permit to erect 1 St. Conc. Block Steel building at 4449 Reading Rd. to be used as car wash."
It is, therefore, apparent that neither the application for the building permit nor the permit itself complies with ordinance requirements. We are of the opinion that both are fatally defective and that no authority exists to proceed with the construction of the building.
Under the precise wording of the controlling ordinances, it was essential that the written application for the building permit be made by the owner, or that it appear that such application was being made for and on the owner's behalf. Not only was this requirement ignored, but there is no reference at all to the owner. Besides, the building permit issued pursuant to such faulty application wholly fails to meet mandatory ordinance requirements.
Where the term, "owner," is employed with reference to land or buildings, it is commonly understood to mean the person who holds the legal title. And, in using that term in the ordinances under examination, it can hardly be supposed that the council of the city of Cincinnati had in mind anyone except the person holding the legal title.
Although our approach to this matter has been different from that taken by the lower courts, the final result reached is the same. We are of the opinion, in the circumstances described, that plaintiffs as interested and affected persons had the right to attack the validity of the application for the building permit and the permit issued pursuant to the application by seeking injunctive relief, and that the courts below properly granted such relief.
The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART, BELL and TAFT, JJ., concur.