Opinion
No. 35544
Decided November 19, 1958.
Building permits — Application for, refused — Zoning ordinance restrictions — Remedies — Applicant's failure to exhaust administrative remedies — Mandamus not available, when.
APPEAL from the Court of Appeals for Portage County.
This action in mandamus was instituted in the Court of Appeals by a landowner against the township trustees of Mantua Township, Portage County, and the township zoning inspector in charge of issuing building permits.
The petition alleges that relator is the owner of about five acres of vacant farm land located in the township; that he "presented plans and specifications to build a building and use the aforesaid land for the sale of wholesale hardware and lumber"; that the inspector refused to issue a permit on the ground that, by zoning resolution, use of the land is limited to residential purposes only; that the zoning resolution is illegal, unconstitutional and void; and that relator has no plain and adequate remedy in the ordinary course of law.
The prayer is for a writ ordering the respondents to issue a permit for the use of relator's land and construction of buildings as aforesaid, for damages, and for a declaration that the zoning resolution and its amendments are unconstitutional and void.
The answer alleges that relator has failed to allege a cause of action; that relator had a plain and adequate remedy at law by appeals from the zoning inspector's administrative decision to the township Board of Zoning Appeals and from the board's decision to the Common Pleas Court; that the zoning inspector has exercised, in his discretion, his powers as to the application for a building and use permit, pursuant to the zoning resolution, and a writ from a court to compel the exercise of discretion would be a vain thing; and that respondent township trustees have performed all the duties incumbent on them under the zoning resolution.
The Court of Appeals denied the writ.
An appeal as of right brings the cause to this court for review.
Mr. Irwin Greene and Mr. Walter L. Greene, for appellant.
Mr. Robert E. Cook, for appellees.
Section 2731.01, Revised Code, provides that mandamus is a writ issued to command the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station, and relator is asking the court for such a writ to compel respondents to issue to relator a building and use permit, and at the same time claims that the zoning resolution enjoining the duty is unconstitutional. Relator did not appeal to the Board of Zoning Appeals from the decision of the zoning inspector refusing the permit.
"An applicant for a building permit, whose application is refused because of the provisions of a zoning ordinance, cannot secure a writ of mandamus, compelling the issuance of such permit on the ground that the ordinance as a whole is unconstitutional, without first exhausting administrative remedies provided by such ordinance if such administrative remedies might enable such applicant to secure the permit." State, ex rel. Lieux, v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414.
The record fails to disclose a refusal to perform an act specially enjoined upon respondents as a duty resulting from an office, trust or station. On relator's application for a permit, the zoning inspector did render a decision refusing to issue it. No further duty remained to be done by him. There is no duty enjoined by law upon the respondent township trustees to issue zoning permits, and relator makes no such claim.
"To entitle a relator to a writ of mandamus the evidence must show a refusal to perform an act which the law specially enjoins as a duty resulting from an office, trust or station." State, ex rel. Vaad Hachinuch Hacharedi, v. Baxter et al., Cleveland Heights City Planning and Zoning Commission, 148 Ohio St. 221, 74 N.E.2d 242.
Relator has not made out a case warranting the issuance of a writ of mandamus. The judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS, BELL and HERBERT, JJ., concur.
TAFT, J., not participating.