State ex rel. Killeen Realty Co. v. City of East Cleveland

• Decision Date: 01 July 1959
• Docket Number: No. 35867,35867
• Citation: 160 N.E.2d 1,8 O.O.2d 409,169 Ohio St. 375
• Parties: , 8 O.O.2d 409 STATE ex rel. KILLEEN REALTY CO. et al., Appellees, v. CITY OF EAST CLEVELAND et al., Appellants.
• Court: Ohio Supreme Court

Page 375

169 Ohio St. 375

160 N.E.2d 1, 8 O.O.2d 409

STATE ex rel. KILLEEN REALTY CO. et al., Appellees, v. CITY OF EAST CLEVELAND et al., Appellants.

No. 35867.

Supreme Court of Ohio.

July 1, 1959.

Syllabus by the Court.

1. An action in mandamus will lie to compel designated municipal officials to issue a building permit in accordance with the municipality's zoning ordinances.

2. 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, the doing of which act would be a vain 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.

3. Where a municipality's zoning ordinances authorize the granting of a variance in hardship cases, where it is shown that a proposed use of the land in question is in harmony with the needs and nature of the community, and where no economically feasible use of such land may be made under the existing zone designation, it is an abuse of discretion on the part of the municipality's officials possessing the discretionary power to do so to refuse to grant a variance.

4. Where an isolated parcel of land is similarly zoned as are parcels with which it is contiguous on one side but it extends into and is surrounded on the three other sides by an area of land zoned for less restricted uses, where no feasible economic use of the former land can be made under the present zoning, and where a reduction to the next less restricted use is in harmony with the needs and nature of the neighborhood, the refusal by municipal authorities to extend the less restricted use to such property constitutes a taking of it without due process, resulting in its confiscation.

This action originated in the Court of Appeals for Cuyahoga County, wherein the relators seek the issuance of a writ of mandamus. The petition alleges the ownership of certain property (a portion of the land hereinafter referred to as 'the Walworth Tract') to be in certain individuals, alleges that relator The Killeen Realty Company is a lessee of such property with option to purchase, and sets forth the fact that the other relators are suing individually. The respondents are the city of East Cleveland, its Board of Zoning, Building Code and Fire District Appeals, the secretary of such board, the Commission of the city (which is the legislative body under the municipality's charter), the clerk of the Commission, and the Building Inspector of the city.

The prayer of the petition is for a peremptory writ of mandamus requiring the issuance of a building permit or authorizing the relators to proceed with the preparation of detailed plans for the construction of a supermarket and accessory parking facilities on the Walworth Tract and for an alternative writ that the respondents show cause why they should not be ordered and compelled to issue or to cause to be issued the permit described. Following the issuance of such alternative writ and various filings by the parties and rulings by the court, the peremptory writ was allowed.

The zoning ordinance of the city of East Cleveland (ordinance No. 4761, effective November 17, 1953) establishes and designates, as follows, the three zones with which we are concerned: Class U-2 (apartment house), class U-3 (retail), and class U-4 (commercial). At the present time, various portions of the Walworth Tract are in each of these three zones.

A portion of the tract (the total area of which is about five acres) lying along Euclid Avenue is zoned as U-4. Immediately west of that portion is another segment, also fronting on Euclid Avenue and having a depth of 140 feet, which is zoned U-3. The portion here in controversy lies immediately to the rear of this 140-foot strip and is zoned U-2. The only means of access to the U-2 portion of the property, comprising some three acres, is through or over this 140-foot segment. (The city owns a 22-foot strip extending from a point near the rear of the tract westerly to the next street west. This strip is designated on the city zoning map as Eastham Place, but the record discloses it to be 'an unpaved court.' The city owns another 50-foot strip roughly opposite this narrow strip and extending from the east boundary of the tract to the next street east, but the Court of Appeals found as a matter of fact that there is 'considerable doubt' as to whether this could ever be depended on as a means of ingress and egress.) The rear of the tract is bounded by the right of way of the Nickel Plate Railroad which parallels Euclid Avenue. With the exception of the 22-foot strip above referred to, the entire westerly area is composed of properties used variously for industrial and residential purposes and is zoned U-4. All the property abutting east of the tract, with a certain exception, is zoned U-2 and, for present purposes, may be said to be devoted to apartmenthouse use. Except for two old residence buildings of no present significance, the property here in issue is unimproved.

The record discloses that extensive negotiations and discussions were conducted in an attempt by the relators to cause the Walworth Tract to be rezoned U-3. Following these informal discussions and negotiations, formal application for such rezoning was made, and this application was denied. That denial occasioned the instituting of this action. The respondents have appealed to this court as a matter of right from the allowance by the Court of Appeals of a peremptory writ of mandamus in effect ordering issuance of a building permit to use the portion of the Walworth Tract involved for retail-business purposes upon compliance with lawful regulations of the city building code relative to U-3 zones.

Stanley G. Webster, Director of Law, and Roland A. Baskin, Cleveland, for appellants.

Arter, Hadden, Wykoff & Van Duzer, Thomas V. Koykka and William S. Burton, Cleveland, for appellees.

PECK, Judge.

It is the contention of the respondents that the relators have no right to maintain an action for a writ of mandamus but 'could and should' have brought an action for a declaratory judgment to obtain a determination of the validity of the zoning of their property. Without here passing upon the propriety of the suggested declaratory judgment action, we find that the jurisdictional prerequisites to a mandamus suit exist.

The right to maintain such an action as the instant one has been determined in a long line of cases in which this court has consistently held that a writ of mandamus may be allowed to compel the granting of building permits denied by local authorities on zoning grounds. Those cases include State ex rel. Wiegel v. Randall, 160 Ohio St. 327, 116 N.E.2d 300; State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777, 136 A.L.R. 840; State ex rel. Synod of Ohio of United Lutheran Church in America v. Joseph, 139 Ohio St. 229, 39 N.E.2d 515, 138 A.L.R. 1274; Hauser v. State ex rel. Erdman, 113 Ohio St. 662, 150 N.E. 42; State ex rel. Associated Land & Investment Corp. v. City of Lyndhurst, 168 Ohio St. 289, 154 N.E.2d 435; State ex rel. Ice & Fuel Co. v. Kreuzweiser, 120 Ohio St. 352, 166 N.E. 228, and State ex rel. Gaede v. Guion, 117 Ohio St. 327, 158 N.E. 748. Thus the right to maintain a mandamus action to compel the issuance of a building permit in a proper case is well established.

There remains, however, a consideration as to whether there has been such an exhausting of administrative remedies in the present situation as to make a writ of mandamus available as an avenue of relief. In this connection, it is argued vigorously by the respondents that, since no detailed plans and specifications have ever been presented to the respondents, there was never an application formally filed which could have been favorably acted on by respondents. On that point the Court of Appeals found the record to be 'abundantly clear' that to have made such a formal filing of complete plans and specifications would have been 'to perform a useless act,' and it is also obvious from the record that the preparation of such plans and specifications would have been an onerous and expensive undertaking. (The city Building Inspector testified that the cost of such preparation would have been about $14,000.) It is further noted from the record that the refusal of the respondents to grant the permit in question was never bottomed upon the absence of such plans and specifications from their files. 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, where it is clear that the doing of such act would be a vain 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, as a matter of law, constitute a bar to an action in mandamus to compel the performance of such function.

Passing from the jurisdictional objections which the respondents have raised to the maintenance of a mandamus action, and before entering upon a consideration of the relators' affirmative contentions, we feel it advisable to briefly review the historical background of the law of zoning. We do this because of the nature of the reasoning most heavily relied upon by the respondents in declining to grant the permits sought.

At the outset it must be recognized that zoning even in its least innocuous and most unrestricting form constitutes a limitation on the ownership of property. The time arrived generations ago ¹ when it was recognized, for example, that one could not construct and maintain a stockyard and abattoir on his property in an otherwise exclusive residential area, and when that day of...