Opinion
No. 36675
Decided November 30, 1960.
Mandamus — Not available as substitute for appeal — Plats — Refusal of county planning commission to approve — Township zoning — Minimum size of lots.
APPEAL from the Court of Appeals for Montgomery County.
This action in mandamus was brought in the Court of Appeals to require the Montgomery County Planning Commission to approve a proposed plat of approximately 400 acres of land situated in Washington Township, Montgomery County. Washington Township was given leave to intervene as a respondent.
The petition alleges that relator desires to plat the land in question into lots of a minimum of 20,000 square feet each; that as a condition precedent to the recording of the plat it must be approved by the respondent planning commission; and that such respondent has stated that its approval will not be given to a plat with 20,000 square feet minimum lot sizes, on the ground that such plat would violate the Washington Township zoning ordinance which specifies that each of the lots in that area must be not less than 80,000 square feet.
Relator alleges further that the provision of the ordinance which requires lots of a minimum size of 80,000 square feet is an unreasonable and confiscatory exercise of the police power, and that the planning commission is refusing to perform an act which the law specially enjoins as a duty resulting from its office.
The prayer is for the issuance of a writ commanding the planning commission to forthwith approve a plat of the property having 20,000 square feet minimum lot sizes.
A demurrer to the petition was overruled and an answer was filed.
The Court of Appeals found that relator had "available an adequate remedy by way of appeal to the Common Pleas Court as well as by way of declaratory judgment and injunctive relief and that a writ of mandamus should be denied upon such ground."
An appeal as of right brings the cause to this court for review.
Messrs. Coolidge, Wall Wood and Mr. Robert B. Womsley, for appellant.
Mr. Mathias H. Heck, prosecuting attorney, Mr. William L. Falknor, Messrs. Landis, Ferguson, Beiser Greer and Mr. Edward L. Shank, for appellees.
Section 711.10, Revised Code, provides, inter alia, that within 60 days after the refusal of approval by a county planning commission of any plat submitted, the person submitting such plat may file a petition in the Court of Common Pleas of the proper county and the proceeding thereon shall be governed by the provisions of Section 711.09, Revised Code, as in the case of the refusal of a municipal planning authority to approve a plat. Also, Section 711.09 provides that "the judgment or order of the court may be appealed by either party on questions of law as in other civil cases."
This court has often stated and held that it will ordinarily, in the exercise of its discretion, deny a writ of mandamus where the relator has or had a plain and adequate remedy in the ordinary course of the law, including an equitable remedy. State, ex rel. Libbey-Owens-Ford Glass Co., v. Industrial Commission, 162 Ohio St. 302. However, this court has recognized that it has the power to allow such a writ even in such an instance. See State, ex rel. Wesselman, v. Board of Elections, 170 Ohio St. 30, 33.
The Court of Appeals has the same discretionary power with respect to allowance of a writ of mandamus in such a case originating in that court, as does this court. Hence, where the Court of Appeals in such a case has refused to allow a writ of mandamus on the ground that the relator has or had a plain and adequate remedy in the ordinary course of the law, even though an equitable remedy, this court has affirmed such judgment. State, ex rel. Lorain County Savings Trust Co., v. Board of County Commissioners, ante, 306. On the other hand, where a Court of Appeals, in the exercise of its discretion, allows a writ of mandamus to a relator who has or had an adequate remedy in the ordinary course of the law, this court has been reluctant to and has declined to interfere with such exercise of discretion by that court. State, ex rel. Wesselman, v. Board of Elections, supra. See, also, State, ex rel. Killeen Realty Co., v. City of East Cleveland, 169 Ohio St. 375.
Relator had an adequate remedy at law by way of appeal. The judgment of the Court of Appeals, since it purports to be based upon that determination, is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, HERBERT and PECK, JJ., concur.
Even though an adequate remedy at law existed, the Court of Appeals, in the exercise of its discretion, may have allowed a writ of mandamus in this case, and this court would undoubtedly have declined to interfere with such exercise of discretion. State, ex rel. Wesselman, v. Board of Elections, 170 Ohio St. 30, 162 N.E.2d 118.
The Court of Appeals, although holding that there was an adequate remedy at law which would preclude the remedy of mandamus, nevertheless considered the merits of the case and decided it adversely to the relator. It would seem to me that, in the light of this exercise of discretion on the part of the Court of Appeals, it would better serve the ends of justice by preventing the repetition of a lengthy trial and the making of a voluminous record if this court exercised a similar discretion and considered the case, as did the Court of Appeals, on its merits.