Kaufman v. Village of Newburgh Heights, 70-221

• Decision Date: 23 June 1971
• Docket Number: No. 70-221,70-221
• Citation: 55 O.O.2d 462,271 N.E.2d 280,26 Ohio St.2d 217
• Parties: , 55 O.O.2d 462 KAUFMAN, Trustee, Appellee, v. VILLAGE OF NEWBURGH HEIGHTS et al., Appellants.
• Court: Ohio Supreme Court

Page 217

26 Ohio St.2d 217

271 N.E.2d 280, 55 O.O.2d 462

KAUFMAN, Trustee, Appellee, v. VILLAGE OF NEWBURGH HEIGHTS et al., Appellants.

No. 70-221.

Supreme Court of Ohio.

June 23, 1971.

Syllabus by the Court

1. The doctrine of 'failure to exhaust administrative remedies available' may be a defense to an original action to review an action of an administrative officer only if interposed and if there is remedy which is effectual to afford the relief sought.

2. Where an ordinance grants the power to interpret zoning regulations to a municipal board of zoning appeals, such power does not include the power to permit exceptions to and variations from the regulations, which power is authorized to be delegated to such a board by R.C. 713.11.

Elliott M. Kaufman purchased a vacant parcel of land located at the northwest corner of Harvard Avenue and East 49th Street in Newburgh Heights, a nonchartered municipal corporation. Kaufman's application for a permit to build a gasoline service station thereon was rejected by the village building commissioner for the reason that it would have violated the municipal zoning code.

Although the Harvard Avenue frontage is zoned for retail business which would permit the service station, this zone extends less than one-third of the property depth along the East 49th Street curb line and as little as 15 feet at the west boundary. Thus, the entire parcel is, for all practical purposes, restricted to residential uses.

Harvard Avenue, within the village of Newbrugh Heights, is a heavily travelled four-lane highway and, excluding a municipally-owned park area, both sides of the right of way are zoned for retail or commercial uses to a depth of at least 100 feet except the corner parcel belonging to Kaufman. The other three corners of the Harvard Avenue and East 49th Street intersection are occupied by the village hall, including the police and fire departments with appropriate parking facilities, the city of Cleveland automotive repair yards, and a retail gasoline service station.

An intersection traffic count prepared by the Cuyahoga County Engineer's office shows that over 20,000 vehicles have used the Harvard Avenue-East 49th Street intersection during a given 12-hour period.

The adjacent property to the north of the intersection is residential and so zoned on the west side of East 49th Street. On the opposite side is a publicly owned park including the village hall. The street is a four-lane thoroughfare carrying southbound truck, bus and auto traffic from Willow Freeway to Harvard Avenue.

Before the building permit was requested, Kaufman's application to the village council for a change of the residential portion of the property to retail zoning had been unanimously rejected.

After the refusal of his building permit and without appealing to the Newburgh Heights Board of Zoning Appeals, Kaufman filed this declaratory judgment action in the Court of Common Pleas, alleging unconstitutionality of the zoning ordinance as applied to his corner location, and sought a mandatory injunction against the building commissioner. The Common Pleas Court held for the village, finding the zoning ordinance reasonable, valid and constitutional.

The Court of Appeals reversed, holding that the zoning ordinance was unconstitutional as applied to the property in question, and that an exhaustion of administrative remedies was not a prerequisite to the declaratory judgment action in this case.

Charles E. Merchant, Cleveland, for appellee.

Arthur P. Lambros, Rocky River, for appellants.

SCHNEIDER, Justice.

Newburgh Heights does not here contend that its zoning ordinance is constitutional with respect to the Kaufman parcel, but that Kaufman...