State ex rel. Lieux v. Village of Westlake
| Decision Date | 10 January 1951 |
| Docket Number | No. 32222,32222 |
| Citation | 154 Ohio St. 412,96 N.E.2d 414 |
| Parties | , 43 O.O. 343 STATE ex rel. LIEUX v. VILLAGE OF WESTLAKE et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Constitutional questions will not be decided until the necessity for their decision arises.
2. An applicant for a building permit, whose application is refused because of the provisions of a zoning ordinance, cannot secure a writ of mandamus, compelling the issuance of such permit on the ground that the ordinance as a whole is unconstitutional, without first exhausting administrative remedies provided by such ordinance if such administrative remedies might enable such applicant to secure the permit.
3. The efforts of such applicant, merely to exhaust the administrative remedies provided by such zoning ordinance, will not operate to prejudice such applicant in questioning later the constitutional validity of any part of the ordinance.
Ruth Lieux, herein referred to as relator, instituted a mandamus action in the Court of Appeals to compel the village of Westlake and its building commissioner to issue to her a building permit for the construction of a commercial greenhouse on her property in the village. The commissioner refused to issue the permit on the ground that the issuance would violate the zoning ordinance of the village. The Court of Appeals issued a writ of mandamus ordering the commissioner to issue the permit.
The case is here on appeal as a matter of right from the judgment of the Court of Appeals, the case being one originating in the Court of Appeals.
Richard S. Weygandt, Westlake, for appellants.
William C. Bracken, Bay Village, and Roland A. Baskin, Cleveland, for appellee.
In Village of Westlake v. Elrick, Ohio App., 83 N.E.2d 646, 648, the Cuyahoga county Court of Appeals held that this ordinance 'as applied to the facts in' that case and to the conviction there involved was 'invalid and a violation of' certain constitutional provisions. However, that case did not involve violation of those provisions of the zoning ordinance which are involved in the instant case. The opinion of the Court of Appeals shows that the ordinance was held invalid only as it applied to the facts in that case.
The zoning ordinance of the village divided the village into 'A' residence districts, 'B' residence districts, 'C' residence districts, local business districts, main business districts and industrial districts, as delineated on the zoning map which was made a part of the zoning ordinance. However, as to the portions of the village designated on that map as 'A' and 'B' residence districts, it is impossible to determine what portions are only 'A' residence districts and what portions are only 'B' residence districts; and, as to the portions designated as local and main business districts, it is impossible to determine from the map what portions are only local business districts and what portions are only main business districts.
Obviously, where provisions of the zoning ordinance apply only to an 'A' residence district, it is impossible, from an examination of the map, to determine the applicability of such provisions to any portion of the village. The same is true with respect to provisions made applicable by the terms of the ordinance only to a 'B' residence district, provisions made applicable only to local business districts, and provisions made applicable only to main business districts.
However, the provisions of the ordinance, relied upon by the building commissioner in denying the permit to relator, prohibit a commercial greenhouse in both 'A' and 'B' residence districts. It is conceded that the property, upon which relator seeks to construct a commercial greenhouse, is located in territory designated on the zone map as in an 'A' and 'B' residence district. There is, therefore, no difficulty in determining, in the instant case, that the zoning ordinance does prohibit a commercial greenhouse in the territory where relator seeks to construct such a greenhouse.
The zoning ordinance provides in part:
It is admitted that relator did not apply to the Board of Appeals for the special permit authorized by the foregoing-quoted portion of the ordinance.
It is a fundamental principle of law that constitutional questions will not be decided until the necessity for their decision arises. State ex rel. Herbert v. Ferguson, Aud., 142 Ohio St. 496, 52 N.E.2d 980; Village of Strongsville v. McPhee, 142 Ohio St. 534, 53 N.E.2d 522; Rucker v. State, 119 Ohio St. 189, 162 N.E. 802. In the instant case, if the relator had followed the administrative remedy provided for in the ordinance, the village Board of Appeals might have given her a special permit. If such special permit were given to relator, then relator would not be prejudiced by the zoning ordinance which she seeks to have declared unconstitutional. Whether it will ever be necessary for this court to consider the constitutionality of this zoning ordinance, in order to determine relator's right to a building permit, cannot be determined until relator has exhausted the administrative remedies provided for by that ordinance. Cf. Belden v. Union Central Life Ins. Co., 143 Ohio St. 329, at page 352, 55 N.E.2d 629; State ex rel. Kittel, a Taxpayer, v. Bigelow, 138 Ohio St. 497, 37 N.E.2d 41; State ex rel. Marcolin, v. Smith, Secy....
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