Opinion
No. 36464
Decided November 23, 1960.
Mandamus — Not available where adequate remedy by appeal — Zoning ordinance restrictions — Building permit denied — Right of appeal — Section 2506.01, Revised Code.
IN MANDAMUS.
By this proceeding in mandamus, originating in this court, relator seeks a writ directing respondents, the village of Solon, its mayor and its building commissioner, to issue to relator a building permit for the erection of a gasoline service station on property owned by relator in a U-3 zoning district of the respondent village, which district is zoned for "any and all kinds of retail business." The zoning ordinance proscribes as a prohibited use, in a U-3 district, gasoline service stations "except upon a special permit of the Zoning Board of Appeals after public notice and hearing confirmed by resolution of council upon findings that the proposed station is not less than 500 feet from any residence, church, theatre, school, public building or another gasoline service station and is not otherwise detrimental to the public health, safety and welfare." The permit was refused on the ground that "many homes are located within 500 feet of the proposed gasoline service station." After setting forth the above facts in the petition, relator alleges that the above-quoted restriction is arbitrary, unreasonable and invalid.
Relator alleges further "that the provision for an appeal to the Zoning Board of Appeals is a vain act, since the board is without authority to grant a permit by reason of the arbitrary prohibition of a gasoline service station within a distance of 500 feet from any residence"; that his property is more than 500 feet from any residence, church, theatre, school, public building or another gasoline service station, measured along the line of travel on public roadways, but is within 500 feet, measured from his property through the rear lot lines to a secondary street, residential in character; that the ordinance is a gross abuse of discretion; that it fails to set up standards and regulations; and that the provisions above referred to are discriminatory, arbitrary, illegal, confiscatory, unreasonable and prejudicial.
The prayer of the petition is for a writ requiring respondents to issue the permit.
Respondents demurred to the petition on the ground that it does not state facts which show a cause of action.
Mr. Frank V. Opaskar and Mr. Joseph M. Carmosino, for relator.
Messrs. Walter Haverfield and Mr. Loyal V. Buescher, for respondents.
Chapter 2506, Revised Code, provides a remedy by judicial review of final orders of administrative boards of municipalities. Relator had an adequate remedy at law by way of appeal to test the claimed invalidity of the zoning ordinance.
The demurrer to the petition is sustained and, it being agreed that such a ruling on the demurrer would be dispositive of the case, the writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.
Concurs on the additional important ground that the relator did not file a notice of appeal with the Zoning Board of Appeals or otherwise comply with the provisions of Chapter 2506, Revised Code, providing for appeals from orders of administrative officers and agencies.
Under the provisions of Section 2731.05, Revised Code, "the writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law."