Opinion
No. 37091
Decided November 22, 1961.
Zoning — Ordinance provision — That property not within a district shall be in residence district — Owner not entitled to erect business building thereon, when.
APPEAL from the Court of Appeals for Butler County.
The agreed statement of facts reveals the following:
When relators purchased their property in February 1947, there were no zoning regulations restricting the use thereof. In December 1954, a petition was filed for annexation of 560 acres to the city of Middletown, which 560 acres included the property owned by relators. Relators joined in the petition for annexation. The annexation proceedings were concluded in May 1955.
In July 1955, a comprehensive zoning ordinance was adopted by the city of Middletown, which ordinance includes the following provision, designated as Section 1125.03, Codified Ordinances of the City of Middletown:
"In any case where property has not been specifically included within a district, such property shall be considered to be in the `R-1' residence district until otherwise classified. All property hereafter annexed to the city shall be in the `R-1' residence district until and unless otherwise changed."
In January 1960, relators applied for a building permit to construct a business building on their property. The permit was refused by the commissioner of inspection, and the board of zoning appeals affirmed the decision of the commissioner.
This action in mandamus was then instituted in the Court of Appeals, which court denied the writ.
The cause is before this court on appeal from such denial.
Mr. George H. Elliott and Mr. Ben M. Kitchen, for appellants.
Mr. Tilmon A. Ellison, director of law, Mr. William E. Rathman and Mr. C.R. Greathouse, Jr., for appellees.
A review of the pleadings and the agreed statement of facts reveals that all the legal and necessary administrative steps were taken by the planning commission preparatory to submitting a comprehensive zoning ordinance to the legislative authority of the city of Middletown, and that such legislative authority duly approved the zoning ordinance in question.
It is stipulated in the agreed statement of facts that the property of relators was not specifically included within any district set out in the zoning ordinance.
The terms of Section 1125.03, a part of the validly enacted zoning ordinance, clearly apply to the relators' property, which, not being included specifically within a district, "shall be in the `R-1' residence district until and unless otherwise changed."
It follows that the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
ZIMMERMAN, acting C.J., RADCLIFF, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.
ZIMMERMAN, J., sitting in the place and stead of WEYGANDT, C.J.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of ZIMMERMAN, J.