Opinion
No. 73-405
Decided December 19, 1973.
Building permits — Mandamus — Not available to compel issuance of permit, when — Ordinance requirements not complied with — No application by owner or person legally acting for owner.
Where an applicant for a building permit fails to fulfill an essential element required by a city ordinance, i.e., that the permit "has been applied for and received by the owner of the premises or a person legally acting under written authority of such owner," the writ of mandamus may not be granted to compel issuance of the permit.
APPEAL from the Court of Appeals for Cuyahoga County.
Multiplex, Inc., relator-appellee, entered into a written agreement with the owners to purchase land, on the condition that:
"In the event that buyer has not been issued a building permit by March 15, 1973, then buyer shall have five (5) days thereafter in which to notify sellers whether it elects to complete this transaction or to terminate the same. * * *"
In April 1972, Multiplex submitted an application for a building permit, accompanied by the necessary information and plans to the building commissioner of the city of South Euclid. The permit application was then referred to the city planning commission. On May 23, 1972, the planning commission, having considered the application and having been assured by the city engineer that the proposed grading and sewerage system conformed with the city's standards, approved Multiplex's application.
Five months elapsed without further action being taken by the city on the application. In November 1972, Multiplex applied to the Court of Appeals for Cuyahoga County for a writ of mandamus compelling the city to rule on the permit application. The court continued the case for hearing to give the city an opportunity to rule on issuance of the permit. The permit was then denied. That decision was appealed to the city zoning board of appeals, which ruled for Multiplex. The board did not, however, direct the building commissioner to issue the permit; it only found that:
"* * * the building commissioner did not have the authority to refuse a permit to the appellant [Multiplex] based solely on the failure of the appellant to comply with deed restrictions."
The building commissioner persisted in his refusal to approve the permit application and informed Multiplex of his decision in a letter, dated January 25, 1973, citing two grounds for his denial: (1) that the application did not provide information that Multiplex was the record owner or legally acting under authority of the owner, and (2) that the commission had not approved the proposed traffic control.
Multiplex then instituted this mandamus action in the Court of Appeals to compel the city and the building commissioner to issue the permit. The writ of mandamus was allowed on March 23, 1973, in a journal entry, with no opinion.
The appeal is now before this court as of a matter of right.
Mr. Robert E. Jaffe, for appellee.
Mr. Earl T. Longley, director of law, and Messrs. Hardesty Callard, for appellants.
App. R. 12(A), providing that "all errors assigned and briefed shall be passed upon by the court in writing, stating the reasons for the court's decision," is not applicable to this case, since the cause is one of first instance brought under Section 3, Article IV of the Ohio Constitution; nevertheless, the Court of Appeals could have immeasurably aided this court by providing its reasons for granting the writ.
Appellants contend that, since Multiplex did not comply with the literal provisions of the city's ordinance in submitting its application for a building permit, the building commissioner need not issue the permit.
Section 762.01 of the Codified Ordinances of the city of South Euclid, applying to permit applications, provides:
"(a) No excavation or site improvements shall be started nor shall any building or structure be erected, altered or moved until a building permit has been applied for and received by the owner of the premises or a person legally acting under written authority of such owner, and issued by the commissioner of building." (Emphasis added.)
When Multiplex applied for the building permit in April 1972 it was not the owner of the premises where the proposed building would be constructed. It had entered into a contract of purchase with the owners, conditioned upon its obtaining a building permit. There is no evidence in the record that the owners had given written authority to Multiplex to legally act on their behalf, nor is there any evidence of cooperation between the two parties. Notably absent from the record is a copy of the permit application.
So, since Multiplex was not the owner of the premises, and was not legally acting under written authority of the owners, it did not fulfill an essential requirement of the ordinance.
In Bloom v. Wides (1955), 164 Ohio St. 138, 141, this court authorized the issuance of an injunction to restrain the construction of a building because the permit application was improperly filled out. There, the Cincinnati ordinance provided that the application must be made by the owner or by his authorized agent. The applicant had no title to the property, and Judge Zimmerman, in construing the ordinance, ruled that:
"* * * 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."
Similarly, in the instant case, since Multiplex did not comply with an essential element of the ordinance — that application be made by the owner or by one acting under his written authority — the commissioner was justified in not granting the permit. On the other hand, let no one misunderstand the court's holding here and construe it as approving the apparent dilatory tactics of the commissioner in handling the application.
Multiplex relies upon the case of State, ex rel. Sun Oil Co., v. Euclid (1955), 164 Ohio St. 265. The first paragraph of the syllabus provides:
"Although the building code of a municipality provides that a building permit shall be issued to the owner of the site of the proposed building for which the permit is sought, a person having a contract of purchase of such site from the owner thereof may, with the approval and participation of such owner, lawfully make application for such building permit."
In the Sun Oil case, the permit application was signed by the applicant as well as the record owner of the property. Such active participation by the record owner distinguishes Sun Oil from the instant case.
The burden is on the person submitting the application for a building permit to fulfill all the requirements of the ordinance. Where one of the requirements is written authority of the owner, as in this case, such authorization must accompany the application. Here, Multiplex failed to include such authorization in its application for the permit; and therefore it did not meet its burden of proof.
Accordingly, we hold that the Court of Appeals erred in issuing the writ of mandamus. Therefore the judgment of the Court of Appeals is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and P. BROWN, JJ., concur.