State ex rel. Adams v. Pendleton

• Decision Date: 16 May 1955
• Citation: 135 N.E.2d 458,100 Ohio App. 1
• Parties: , 59 O.O. 443 The STATE ex rel. ADAMS, Appellant, v. PENDLETON et al., Appellees.
• Court: Ohio Court of Appeals

Page 1

100 Ohio App. 1

135 N.E.2d 458, 59 O.O. 443

The STATE ex rel. ADAMS, Appellant, v. PENDLETON et al., Appellees.

Court of Appeals of Ohio, Wood County.

May 16, 1955.

Syllabus by the Court.

1. A board of appeals, created under a municipal zoning ordinance to hear and decide appeals from and review orders, etc., made by the administrative official charged with the enforcement of such ordinance, has no authority to change or alter by regulation or rule the requirements regulating the setback lines applicable to commercial buildings to be erected in the commercial zone of a city as fixed by ordinance which was duly passed by the council of the city and in effect on the date on which such regulation or rule of the board was adopted.

2. A writ of mandamus will lie to compel the issuance of a building permit, where the permit applicant has complied with all the requirements of such ordinance, including the requirements set out therein regarding building setback lines as opposed to the requirements of a regulation by such board.

Moses Lane, Bowling Green, for appellant.

L. S. Middleton, Bowling Green, for appellees.

DEEDS, Judge.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Wood County, entered in determining that the relator was not entitled to the issuance of a writ of mandamus requiring respondents to issue a building permit to the relator.

The case is presented to this court for review upon a transcript of the proceedings in the Court of Common Pleas, bill of exceptions, and the briefs and oral arguments of counsel for the parties.

The relator, appellant herein, is the owner of a lot consisting of a portion of a city block situated in the district zoned for commercial purpose pursuant to an ordinance in the city of Bowling Green, Wood County.

The respondents are the service director and the members of the Board of Appeals of the City of Bowling Green.

The proceeding was instituted in the Court of Common Pleas by the filing, by the relator, of a petition in which she alleges the ownership by her of certain real estate as described, such real estate being situated, as she alleges, within an area known as the commercial zone of the city, as zoned pursuant to an ordinance which had been duly passed by the council of the city of Bowling Green. Relator alleges that she filed an application in the office of the respondent service director, pursuant to the requirements of the law and ordinances of the city, for a permit authorizing the construction of a commercial building to be constructed adjacent to and bordering on the sidewalk line of Prospect Street, within the commercial zone of the city; that the permit was refused by respondent; and that, thereafter, upon appeal to the respondents, constituting the board of appeals, they affirmed the action of the service director and declined to order the issuance of a building permit authorizing relator to construct a commercial building upon her property, unless the building line fronting on Prospect Street would be 50 feet from the center line of the street, as required by a regulation theretofore adopted by the board.

The relator, in the prayer of her petition, prayed that a writ of mandamus be allowed, requiring the respondents to issue to the relator a building permit authorizing her to construct the building as specified in her application, which was filed as described according to the requirements of the law.

The answer of the respondents admits that the property of the relator, as described, is situated within the commercial zone of the city and alleges 'that they [respondents, as the Board of Appeals] have established a setback line on * * * Prospect Street for commercial buildings a distance of 50 feet from the center line of the street and that if said relator complies with the said rule and regulation that said permit will be granted.' Respondents pray that the proceeding be dismissed.

The reply of the relator restates a part of the allegations of the petition and denies the affirmative allegations of the answer of the respondents.

The authority of the respondents is derived from certain provisions of the Revised Code of Ohio and from ordinances of the city of Bowling Green, adopted pursuant to the law and Constitution of the state.

The sections of the Revised Code of Ohio pertinent to a determination of this appeal are as follows:

'Section 713.10. 'The districting or zoning of any municipal corporation or part thereof may be based upon any combination of two or more of the purposes described in sections 713.07 to 713.09, inclusive, of the Revised Code. In the determination and establishment of such districts buildings and other structures may be classified on the basis of the nature or character of trade, industry, profession, or other activity conducted or to be conducted therein, the number of persons, families, or other group units to reside in or use them, the public, quasi-public, or private nature of the use thereof, or upon any other basis relevant to the promotion of the public safety, health, morals, convenience, prosperity, or welfare.

'The legislative authority of such municipal corporation may amend or change the number, shape, area, or regulations of or within any district, but no such amendment or change shall become effective unless the ordinance proposing it is first submitted to the planning commission, board, or officer for approval, disapproval, or suggestions and the commission, board, or officer is allowed a reasonable time, not less than thirty days, for consideration and report.' (Emphasis added.)

'Section 713.11. 'The legislative authority of a municipal corporation may create an administrative board to administer the details of the application of the regulations under sections 713.06 to 713.12, inclusive, of the Revised Code, and may delegate to such board, in accordance with general rules and regulations to be set forth in the districting ordinances and regulations the power to hear and determine appeals from refusal of building permits by building commissioners or other officers, to permit exceptions to and variations from the district regulations in the classes of cases or situations specified in the regulations, and to administer the regulations as specified therein. Such administrative powers and functions may be delegated by the legislative authority to the planning commission or board.'

'Section 713.12. 'Before any ordinance, measure, or regulation authorized by sections 713.07 to 713.11, inclusive, of the Revised Code, may be passed, the legislative authority of the municipal corporation shall hold a public hearing thereon, and shall give thirty days' notice of the time and place thereof in a newspaper of general circulation in the municipal corporation. During such thirty days the text or copy of the text of such ordinance, measure, or regulation, together with the maps or plans or copies thereof forming part of or referred to in such ordinance, measure, or regulation and the maps, plans, and reports submitted by the planning commission, board, or officer shall be on file, for public examination, in the office of the clerk of the legislative authority or in such other office as is designated by the legislative authority. No such ordinance, measure, or regulation which violates, differs from, or departs from the plan or report submitted by the commission, board, or officer shall take effect unless passed or approved by not less than three fourths of the membership of the legislative authority.'

Section 713.13. 'No person shall erect, construct, alter, repair, or maintain any building or structure or use any land in violation of any zoning ordinance or regulation enacted pursuant to sections 713.06 to 713.12, inclusive, of the Revised Code, or Section 3 of Article XVIII, Ohio Constitution. In the event of any such violation, or imminent threat thereof, the municipal corporation, or the owner of any contiguous or neighboring property who would be especially damaged by such violation, in addition to any other remedies provided by law, may institute a suit for injunction to prevent or terminate such violation.'

On April 1, 1946, the council of the city of Bowling Green passed an ordinance known as 'Ordinance No. 1145 Zoning Ordinance of Bowling Green, Ohio.' Zoning Ordinance No. 1145 provides, in part, as follows:

'2. Explanation And Purpose. It is an ordinance requiring permits for the erection of buildings and structures as well as permits for the uses of land and the buildings located thereon. It divides the city into districts, regulates the uses permitted in such districts, specifies minimum plot sizes, setbacks and side yards and maximum building heights near airports or landing fields. It requires approved water supply and sewage disposal facilities and parking areas and provides for appeals and the imposing of penalties for violation of the ordinance.

'Its purpose is to promote the public health, safety, morals, comfort and general welfare and to conserve the...