Carl Meier and Marie Meier v. City of Avon Lake Zoning Board of Appeals, Planning Commission and Kenneth Grano
| Decision Date | 22 October 1986 |
| Docket Number | 4044,86-LW-2863 |
| Parties | Carl MEIER, Jr. and Marie Meier, Plaintiffs-Appellants, v. CITY OF AVON LAKE ZONING BOARD OF APPEALS, PLANNING COMMISSION and Kenneth Grano, Defendants-Appellees. |
| Court | Ohio Court of Appeals |
APPEAL FROM JUDGMENT
ENTERED IN THE COMMON PLEAS COURT
COUNTY OF LORAIN, OHIO
John F Mackin, Avon Lake, for plaintiffs.
Russell Provenza, Avon Lake, for defendants.
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Petitioners-appellants, Carl and Pearl Meier, appeal the trial court's order granting summary judgment to respondents-appellees, City of Avon Lake and Kenneth Grano, the City building inspector, on the Meiers' petition for a writ of mandamus.
This is the second time the parties in this case have been before this court. A chronological summary of the events leading up to this appeal is necessary to a full understanding of the case.
Sept. 7, 1983: The Meiers sent a letter to the Avon Lake Planning Commission informing it that they intended to construct a storage garage on their residential property.
Sept. 13, 1983: The Planning Commission held a regular meeting where they treated the Meiers' letter as a request for a zoning permit. After some debate, the Commission voted to deny the zoning permit request.
Sept. 19, 1983: The Meiers submitted a form application for a building permit to Avon Lake building inspector Kenneth Grano.®1¯ This one-page document also contained sections for application for a zoning permit and occupancy permit.
Sept. 27, 1983: Grano sent a letter to the Meiers informing them that he could not issue a building permit for the proposed garage for the reason that the Planning Commission had denied their request for a zoning permit.
Sept. 30, 1983: The Meiers sent a letter to the "Board of Building Code Appeals" notifying that body that they were appealing from Grano's rejection of their building permit. (They enclosed a check for $25.) Plaintiff's Exhibit 4.
Oct. 4, 1983: The Planning Commission approved its minutes of their September 13, 1983 meeting at which they denied the Meiers a zoning permit.
Oct. 6, 1983: Building Inspector Grano sent a letter to the Meiers informing them that the Planning Commission's decision denying their request for a zoning permit was not within the jurisdiction of the Board of Zoning Appeals and was therefore not appealable. The letter went on to say that the appeal would not be considered by the Zoning Board of Appeals on the advice of the City Legal Department. Grano returned the Meiers' $25 filing fee. Plaintiffs' Exhibit 5.
Oct. 7, 1983: The Meiers sent a letter to Grano requesting that he issue a zoning permit.
Oct. 31, 1983: Grano sent a letter to the Meiers which recited that it was in reference to their building permit application. The text of the letter merely referred the Meiers to a copy of Grano's October 6, 1983 letter.
Nov. 9, 1983: The Meiers filed two separate actions in the Court of Common Pleas. One was a notice of appeal of Grano's October 3, 1983 "decision" denying their application for a "Zoning-Building Permit". The second was complaint in mandamus praying that Grano issue a zoning permit. The trial court later consolidated the two actions.
Sept. 17, 1984: The trial court dismissed the consolidated action. It found that the October 31, 1983 letter from Grano was not a final order pursuant to R.C. 2506.01 and was therefore not appealable. The court went on to say that the Meiers were really appealing the September 13, 1983 decision of the Planning Commission which became final on October 4, 1983. Because the Meiers filed their appeal on November 9, 1983, it was untimely under R.C. 2505.07.
Apr. 3, 1984: This court affirmed the trial court's decision to dismiss the Meiers' administrative appeal, but remanded the cause back to the trial court for further proceedings on the mandamus complaint. Meier v. City of Avon Lake (Apr. 3, 1985), Lorain App. No. 3770, unreported.
Apr. 25, 1986: On summary judgment motions, the trial court denied the petition for a writ of mandamus. The court found that Grano's September 27, 1983 denial of the Meiers' application for a building permit was " * * * not an issue for mandamus, but rather one for appeal."
Because this court finds that the summary judgment of the trial court must be reversed on the basis of the Meiers' second assignment of error, it is not necessary to address the Meiers' other assignments of error.
"The plaintiffs-appellant do not have to do a vain act, so the court errs in holding that the appellant, in this case, must originally appeal to the Board of Zoning and Building Appeals and no timely appeal was made."
R.C. 2731.05 recites that:
"The writ of mandamus must not be issued when there is plain and adequate remedy in the ordinary course of the law."
The phrase "plain and adequate remedy in the ordinary course of law" has been interpreted as encompassing administrative appeals. State ex rel. Ronald, Inc. v. Willoughly (1959), 170 Ohio St. 39. Thus, failure to exhaust administrative remedies provided by an ordinance or statute usually precludes the issuance of a writ of mandamus. Id. This is true even if, absent other circumstances, the pursuit of the administrative remedy would encompass more delay and inconvenience than seeking a writ of mandamus in the first instance. State, ex rel. Willis, v. Sheboy (1983), 6 Ohio St.3d 167. However, our Supreme Court has recognized that there are situations where an administrative remedy does not provide a plain and adequate remedy in the ordinary course of law.
"Where the doing of an act which is a prerequisite to the performance of an assigned function of a municipal authority would be onerous and expensive and the doing of which act would be vain a thing, and where the failure to do such act is not the ground for refusal by the municipal authority to perform its assigned function, failure to do that act will not constitute a bar to an action in mandamus to compel the performance of such function upon the subsequent doing of such act." State, ex rel. The Killeen Realty Co. v. City of East Cleveland (1959), 169 Ohio St. 375, paragraph two of the syllabus. (Emphasis added.)
In Killeen Realty, a building inspector for the City of East Cleveland had refused to issue a building permit to the petitioners. The petitioners had failed to pursue their administrative remedies. On appeal of the issuance of the mandamus writ in the Supreme Court, respondents contended that petitioners had a plain and adequate remedy at law in the form of an administrative appeal. The respondents in Killeen Realty argued that the failure of the petitioners to exhaust their administrative remedies precluded the issuance of the writ. The Supreme Court rejected the respondents' contention finding it "abundantly clear" that the pursuit of the administrative remedy in question would have been "to perform a useless act." Id. at 378.
A case which is on all fours with the instant one is State, ex rel. Cubbon v. Winterfeld (1957), 104 Ohio App. 260. There, the respondents argued that petitioners had failed to exhaust their administrative appeal to the Board of Zoning Appeals and were precluded from obtaining a writ of mandamus. The court in Cubbon addressed this argument by noting the peculiar set of facts then before it.
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