399 N.E.2d 81 (Ohio 1980), 79-284, State ex rel. Westchester Estates, Inc. v. Bacon

Docket Nº79-284.
Citation399 N.E.2d 81, 61 Ohio St.2d 42
Opinion JudgeCELEBREZZE, C.J.
Party NameThe STATE ex rel. WESTCHESTER ESTATES, INC., Appellee, v. BACON, Appellant.
AttorneyPetersen & Pasqualone, Jerry A. Petersen and Terry G. Pasqualone, Chardon, for appellee., John F. Norton, Pros. Atty., and Richard J. Makowski, Chardon, for appellant. Messrs. Petersen & Pasqualone, Mr. Jerry A. Petersen and Mr. Terry G. Pasqualone, for appellee., Mr. John F. Norton, prosecuting ...
Case DateJanuary 09, 1980
CourtSupreme Court of Ohio

Page 81

399 N.E.2d 81 (Ohio 1980)

61 Ohio St.2d 42



BACON, Appellant.

No. 79-284.

Supreme Court of Ohio.

January 9, 1980

Syllabus by the Court

1. In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law. (State ex rel. Harris v. Rhodes, 54 Ohio St.2d 41, 374 N.E.2d 641.)

2. Where there has been a change in the facts since a decision was rendered in an action, which either raises a new material

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issue or which would have been relevant to the resolution of a material issue involved in the earlier action, neither the doctrine of Res judicata nor the doctrine of collateral estoppel will bar litigation of that issue in a later action.

In 1964, Bainbridge Township amended its zoning ordinance to permit the use of Planned Unit Developments (PUDs). The purpose of a PUD is to allow the development of a clustered residential community. Because of the need for flexibility, the township decided that it was necessary to allow such developments to be planned outside the usual rigid zoning requirements in the township's zoning ordinance. In lieu of the rigid ordinance, a PUD had to be planned to provide a large amount of acceptable open space per unit. The amount of space was greater for single family units than it was for townhouses.

Westchester Estates, Inc., together with P. H. English, Inc., proceeded to develop a PUD called Tanglewood, which was to be located around a golf course in Bainbridge Township and consisted of four parcels of property totaling 440 acres. The four parcels were made a part of a deed restriction covering the entire subdivision. [61 Ohio St.2d 43]

The final 43 acres to be developed, known as the Harris property, had been laid out in townhouses with the open spaces required in a PUD plan under the 1964 regulation. Zoning permits were obtained for this parcel in 1972; however, these permits were not used within the required one-year period. Upon re-application in 1974, Westchester's request was denied on the basis of a zoning regulation change made in 1971.

Westchester appealed the decision of the Board of Zoning Appeals to the Court of Common Pleas of Geauga County pursuant to R.C. 2506.01. The court affirmed the decision of the board. On appeal, the Court of Appeals, in Westchester Estates v. Bainbridge Zoning Board of Appeals (April 5, 1976), case No. 654, unreported, reversed the trial court. The court held that R.C. 519.14(B) required the granting of a variance when unnecessary hardship would result from literal enforcement of the ordinance. Because the court determined that Westchester had relied on the earlier PUD regulation in planning the development, which would return a profit only due to sales of the last units, the court found that denial of the variance had been arbitrary and unreasonable.

Between March 30, 1978, and April 5, 1978, P. H. English, on behalf of P. H. English, Inc., and Westchester Estates, Inc., completed and filed with Robert Bacon, zoning inspector for Bainbridge Township, a number of applications for zoning certificates, seeking certificates for townhouses on the Harris property. Bacon has refused to issue the certificates.

Westchester Estates, Inc., then filed this action in mandamus in the Court of Common Pleas of Geauga County to compel Bacon to issue the zoning certificates, contending that the judgment in the earlier Court of Appeals case, being Res judicata, entitled it to the certificates. Since the Court of Appeals' decision, Westchester had altered its plans, dividing the 43 acres into 28 acres of single family housing and 14 acres of townhouses (one acre being for roads). Westchester argued that the fact that the 43 acres had been so divided did not alter the effect of...

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  • Abuse of power: disregarding traditional legal principles to invalidate tort reform.
    • United States
    • Defense Counsel Journal Vol. 67 Nbr. 4, October 2000
    • October 1, 2000
    ...at 1116. (47.) State ex rel. Ellis v. McCabe, 35 N.E.2d 571, 572 (Ohio 1941). (48.) State ex tel. Westchester Estates Inc. v. Bacon, 399 N.E.2d 81, 83 (Ohio (49.) State ex rel. Pressley v. Ind. Comm'n of Ohio, 228 N.E.2d 631 (Ohio 1967). See also State ex rel. Fenske v. McGovern, 464 N.E.2d......