Bloom v. Wides, 34359
| Decision Date | 27 July 1955 |
| Docket Number | No. 34359,34359 |
| Citation | 128 N.E.2d 31,164 Ohio St. 138,57 O.O. 132 |
| Parties | , 57 O.O. 132 BLOOM et al., Appellees, v. WIDES et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Interested and affected owners of residential real property may maintain an action to enjoin the construction of a building on nearby premises, to be used for a mechanized car wash, upon the allegations that neither the application for the building permit nor the permit issued pursuant thereto complies with the mandatory requirements of municipal ordinances that the application must be made by the owner or by his authorized agent, that it must contain the full name and address of the owner, and that the permit itself must show the owner's name.
2. Where upon the trial of such action it is shown that such ordinance requirements have been disregarded in the essential details above described, the plaintiffs are entitled to an injunction restraining the construction of such building.
Laurence P. Bloom, Jr., and Harry Bloom, owners of an apartment building situated on Reading Road, north of Avon Drive, in the city of Cincinnati, instituted an action in the Court of Common Pleas of Hamilton County on behalf of themselves and other owners of real property in the vicinity to enjoin the issuance of a building permit for and the construction on nearby premises of a building to be used for the operation of a mechanized 'minute car wash.'
Named as defendants were Helen Wides and Bessie Pockros, owners of the property where the car wash is to be established, Philip M. Shaw, who applied for the building permit, Ben Wides, who is to operate the car-wash business, Fred F. McMinn, Commissioner of Buildings of the City of Cincinnati, who issued the building permit after the commencement of the present action, and the city of Cincinnati.
The amended petition in the trial court alleged that the proposed building to be used for the purpose described will be in violation of the zoning ordinance of the city of Cincinnati, will constitute a nuisance because of noise, vibration and traffic congestion and will be extremely detrimental to surrounding property occupied for residence purposes.
A joint answer was filed by Helen Wides, Bessie Pockros, Ben Wides and Philip M. Shaw, and an answer was also filed by the city of Cincinnati. The cause then came on for hearing on the pleadings, evidence and the written and oral arguments of counsel.
The trial court found that the proposed structure and its use would violate certain sections of the Cincinnati zoning ordinance. A permanent injunction was issued restraining the construction of the building for the operation of a car wash, and it was further ordered that the permit issued authorizing such construction and use be cancelled for the reason that it is null and void.
An appeal on question of law and fact was taken to the Court of Appeals where new pleadings were filed in the form of an amended petition, the joint answer of Helen Wides, Bessie Pockros, Ben Wides and Philip M. Shaw, and a reply. In the amended petition the question of the validity of the application for the building permit and the validity of the permit issued pursuant to such application is raised.
Plaintiffs were again successful in the Court of Appeals, and that court entered a decree similar to the one entered by the court below.
The allowance of a motion to require the Court of Appeals to certify its record brings the cause here for review on its merits.
Nathan Solinger, Louis Weiland, Henry M. Bruestle, city solicitor, and Edgar W. Holtz, Cincinnati, for appellants.
Milton H. Schmidt and Harry Kasfir, Cincinnati, for appellees.
It is earnestly contended by the plaintiffs, appellees in this court, that the judgment of the Court of Appeals should be affirmed on the basis that the permit for the construction of the building to accommodate the car-wash business was not applied for by and was not issued to the 'owner' in accordance with the Code of Ordinances of the City of Cincinnati, and that it is a nullity.
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