State ex rel. Cubbon v. Winterfeld
| Decision Date | 07 October 1957 |
| Citation | 104 Ohio App. 260,148 N.E.2d 523 |
| Parties | , 4 O.O.2d 407 STATE ex rel. CUBBON, Jr., et al. v. WINTERFELD et al., Board of Trustees. |
| Court | Ohio Court of Appeals |
1. A court may, in the exercise of sound discretion, grant a writ of mandamus if the available ordinary legal remedy is not plain and adequate.
2. A person has a clear legal right to a certificate of occupancy on an existing nonconforming residential use under a township zoning resolution providing for the issuance of a certificate of occupancy on such a lawful nonconforming use and Section 519.19 of the Revised Code.
3. Section 519.12, Revised Code, providing for appeals to the Common Pleas Court, and Section 519.15, Revised Code, providing for appeals to the Board of Zoning Appeals and thence to the Common Pleas Court, do not afford a plain and adequate remedy where there is a clear legal right to a certificate of occupancy under a nonconforming use.
4. Restrictive generalization of the function of the writ of mandamus cannot become the absolute criterion of its proper application to the particular facts in each case.
Cubbon & Rice, Toledo, for relators.
Harry Friberg, Pros. Atty., and Ben A. Neidlinger, Toledo, for respondents.
This is an action originating in this court on a petition in mandamus for a writ compelling the Board of Trustees of Adams Township, Lucas County, Ohio, respondents, to issue to relators a certificate of occupancy of their land in the township. Application for alternative writ was granted ordering respondents to show cause why a writ of mandamus should not be allowed. The case is submitted and considered on the petition, the answer of respondents, stipulation of the parties, the zoning regulations in the township, and briefs and arguments of counsel. Counsel agreed that the case be heard on its merits, and therefore, the motion to dismiss the petition and demurrer thereto filed by respondents was overruled.
The petition alleges and the answer and stipulation admit that relators are the owners in fee of lot No. 663 in Westhaven Third, an addition in Adams Township, Lucas County, Ohio; that relators James R. Doran and Nancy L. Doran are vendees of a land contract dated January 22, 1957, whereby they are purchasing the aforesaid premises; that on the premises is a building approximately 20 feet by 24 feet in dimension, which has been continuously occupied as a residence since approximately 1928 and most recently occupied from the early part of 1954 continuously until May 30, 1956, by one Gilford W. Coolidge and his wife, Marian D. Coolidge, and has been vacant from that date to the date of filing the petition.
It is alleged further in the petition and admitted by the answer that there was enacted in May of 1956, a comprehensive zoning plan for Adams Township in Lucas County, Ohio, and that such comprehensive plan went into effect during May, 1956; and that the following sections and pertinent parts thereof provide as follows:
Section 15 A-1. 'No occupancy * * * shall take place on any parcel or in any building until a certificate of occupancy therefor shall have been issued by the Board of Township Trustees * * *.'
Subsection 3: 'Written application for a certificate of occupancy shall be made to the Board of Township Trustees * * *.'
Subsection 4: 'Every certificate of occupancy shall state that the building or the proposed use of a building or land complies with all provisions of this resolution * * *.'
Subsection 5: 'The fee for the certificate of occupancy shall be two dollars ($2.00) payable to the Township Clerk.'
Further it is admitted that additional sections of the comprehensive zoning plan provide, among other things, numerous rules, specifications and regulations regarding hight, width, living area, etc. concerning buildings, and also rules and regulations concerning the use of parcels of land; and that section 13, subsection B-1a of the zoning plan, dealing with the continuance of a nonconforming use provides as follows:
'The lawful use of any building existing at the time of the adoption of this resolution may be continued, although the use of such building does not conform to the regulations of the zoning district in which such building is located * * *.'
Relators Frank W. Cubbon, Jr., and Barbara D. Cubbon, it is admitted, during May of 1957, pursuant to the aforesaid applicable sections of the zoning plan, made application for a certificate of occupancy for the premises accompanied by the required fee and therein advised that the building in question has been occupied as a residence for many years and specifically was so occupied during all of 1955 and up until May 30, 1956. The Board of Trustees, respondents herein, considered same and passed a resolution dated May 21, 1957, as follows:
The petition alleges further, and the answer admits, that section 14 of the zoning plan provides for the creation of a Board of Zoning Appeals, setting forth the membership requirements and the jurisdictional limits under subsection B of section XIV, and that, pursuant thereto, Frank W. Cubbon, Jr., and Barbara D. Cubbon filed an appeal from the resolution of the Board of Trustees to the Board of Zoning Appeals; that such appeal by written application was accompanied by the required fee of $25; and that on July 10, 1957, the board met to consider the appeal and at the time refused to pass on the granting of a certificate of occupancy for a previously existing nonconforming use on the basis that the Board of Appeals was without jurisdiction to reverse the ruling of the Board of Trustees, respondents herein.
The foregoing admitted and undisputed facts show clear legal right in relators to the remedy in mandamus. On the effective date of the...
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...remedy of mandamus where the only issue is a showing of a clear right to the order sought. In the case of State ex rel. Cubbon v. Winterfeld, 104 Ohio App. 260, 148 N.E.2d 523, 524, a writ of mandamus was ordered, directing the Board of Trustees of Adams Township to issue a certificate of o......
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