Opinion
No. 38409
Decided December 18, 1963.
Precedendo — Remedy not available where adequate remedy by appeal — Board of Zoning Appeals — Appeal to Common Pleas Court — Remand to board for specific finding of facts and final order — Appeal from order of court available.
IN PROCEDENDO.
The Brooklyn Planning Commission refused to approve relator's application for a certificate of occupancy and other permits necessary to enable relator to make a certain storeroom ready for occupancy and to use it as a restaurant in which to serve food and intoxicating liquor, upon finding that relator did not provide adequate parking space for the operation of his contemplated business.
The Brooklyn Board of Zoning Appeals, on appeal, affirmed the decision of the commission.
The order of the board was appealed from to the respondent Court of Common Pleas pursuant to Chapter 2506, Revised Code. The court found that the decision of the commission was based on Section 4 (E) of the zoning ordinance, relating to parking facilities, and that the section was invalid. The court found also that relator had a D-5 liquor permit, that there was a valid city ordinance (No. 1956.74) relating to off-street parking for places selling intoxicating liquor for consumption on the premises, and that the cause should be remanded to the Board of Zoning Appeals with instruction to enter an order referring the matter to the planning commission for specific finding of facts and a final order granting or denying the permits after considering all applicable valid ordinances and statutes.
The relator then requested the respondent court to either affirm, reverse, vacate or modify the order of the board and to then make an order of remand accordingly. Upon respondent court's refusal to so do, relator instituted this action in procedendo in this court, praying for a writ requiring respondent court "to either affirm, reverse, vacate or modify the order of the said Brooklyn Board of Zoning Appeals, and to then make an order of remand accordingly, as provided by Section 2506.04, Revised Code."
A demurrer has been filed to the petition on the ground that it does not state facts which show a cause of action.
Mr. Alan Meltzer, for relator.
Mr. John T. Corrigan, prosecuting attorney, and Mrs. Gertrude B. Mahon, for respondents.
Section 2506.04, Revised Code, a section of the chapter on appeals from orders of administrative agencies, provides:
"The court may find that the order * * * is unconstitutional * * * unreasonable, or unsupported by the preponderance of * * * evidence * * *. Consistent with its findings, the court may affirm, reverse, vacate, or modify the order * * * or remand the cause to the officer or body appealed from with instructions to enter an order consistent with the findings or opinion of the court. The judgment of the court may be appealed by any party on questions of law pursuant to Sections 2505.01 to 2505.45, inclusive, of the Revised Code."
If, as relator contends, the court could not render the judgment which it proposes to render, the relator is afforded an adequate remedy in the ordinary course of the law by way of appeal from that judgment.
The demurrer to the petition is sustained, and a writ of procedendo is denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.