Opinion
No. 80-446
Decided December 17, 1980.
Mandamus — Writ denied, when — Failure of planning commission to approve plats — Adequate remedy by way of declaratory judgment available.
APPEAL from the Court of Appeals for Lake County.
Relators, Nick J. Square and Jeanne R. Square, own a parcel of land in the village of Madison, Ohio. On March 6, 1978, they submitted a plan for a proposed subdivision of this land to appellee, the Planning Commission of the village of Madison. On August 17, 1978, more than five months later, when Mr. Square and the planning commission could not agree on placement of the water lines, relators demanded that the planning commission issue a certificate indicating that it had failed to take action on the proposal within 30 days after its submission as required by R.C. 711.09. The planning commission refused to issue a certificate. Relators then brought this original action in mandamus in the Court of Appeals, requesting that the planning commission be compelled to issue the requested certificate.
Both parties filed motions for summary judgment. The planning commission argued that relators had filed a "preliminary plan" and not a "final plat," and therefore the 30-day time limit in R.C. 711.09 was not applicable. The Court of Appeals agreed and granted summary judgment in favor of the planning commission.
The cause is now before this court on an appeal as of right.
Kohrman, Jackson Weiss Co., L.P.A., and Mr. John F. Ballard, for appellants.
Messrs. Baker, Hackenberg Haskell, Mr. I. James Hackenberg and Mr. George B. Haskell, for appellee.
"in order to grant a writ of mandamus, a court must find that the relator has a clear right to the relief prayed for, that the respondent is under a clear duty to perform the requested act, and that the relator has no plain and adequate remedy at law." State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 44. Relators have a plain and adequate remedy at law in the form of a declaratory judgment action. In P.H. English v. Koster (1980), 61 Ohio St.2d 17, this court affirmed the trial court's order that plats are approved by operation of law when a planning commission has failed to comply with its mandatory duty to approve or disapprove the preliminary and final plats within 30 days. P.H. English was brought as a declaratory judgment action.
Since relators have a plain and adequate remedy in the ordinary course of the law, the judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.