State ex rel. Multiplex, Inc. v. City of South Euclid, 73-405
| Decision Date | 19 December 1973 |
| Docket Number | No. 73-405,73-405 |
| Citation | 304 N.E.2d 906,65 O.O.2d 383,36 Ohio St.2d 167 |
| Parties | , 65 O.O.2d 383 The STATE ex rel. MULTIPLEX, INC., Appellee, v. CITY OF SOUTH EUCLID et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where an applicant for a building permit fails to fulfill an essential element required by a city ordinance, i. e., that the permit 'has been applied for and received by the owner of the premise or a person legally acting under written authority of such owner,' the writ of mandamus may not be granted to compel issuance of the permit.
Multiplex, Inc., relator-appellee, entered into a written agreement with the owners to purchase land, on the condition that:
'In the event that buyer has not been issued a building permit by March 15, 1973, then buyer shall have five (5) days thereafter in which to notify sellers whether it elects to complete this transaction or to terminate the same. * * *'
In April 1972, Multiplex submitted an application for a building permit, accompanied by the necessary information and plans to the building commissioner of the city of South Euclid. The permit application was then referred to the city planning commission. On May 23, 1972, the planning commission, having considered the application and having been assured by the city engineer that the proposed grading and sewerage system conformed with the city's standards, approved Multiplex's application.
Five months elapsed without further action being taken by the city on the application. In November 1972, Multiplex applied to the Court of Appeals for Cuyahoga County for a writ of mandamus compelling the city to rule on the permit application. The court continued the case for hearing to give the city an opportunity to rule on issuance of the permit. The permit was then denied. That decision was appealed to the city zoning board of appeals, which ruled for Multiplex. The board did not, however, direct the building commissioner to issue the permit; it only found that:
'* * * the building commissioner did not have the authority to refuse a permit to the appellant (Multiplex) based solely on the failure of the appellant to comply with deed restrictions.'
The building commissioner persisted in his refusal to approve the permit application and informed Multiplex of his decision in a letter, dated January 25, 1973, citing two grounds for his denial: (1) that the application did not provide information that Multiplex was the record owner or legally acting under authority of the owner, and (2) that the commission had not approved the proposed traffic control.
Multiplex then instituted this mandamus action in the Court of Appeals to compel the city and the building commissioner to issue the permit. The writ of mandamus was allowed on March 23, 1973, in a journal entry, with no opinion.
The appeal is now before this court as of a matter of right.
Robert E. Jaffe, Cleveland, for appellee.
Earl T. Longley, director of law, Cleveland, and Hardesty & Callard, Columbus, for appellants.
App.R. 12(A), providing that 'all errors assigned and briefed shall be passed upon by the court in writing, stating the reasons for the court's decision,' is not applicable to this case, since the cause is one of first instance brought under Section 3, Article IV of the Ohio Constitution; nevertheless, the Court of Appeals could have immeasurably aided this court by providing its reasons for granting the writ.
Appellants contend that, since Multiplex did not comply with the literal provisions of the city's ordinance in submitting its application for a building permit, the building commissioner need not issue the permit.
Section 762.01 of the Codified Ordinances of the city of South Euclid, applying to permit applications, provides:
'(a) No excavation or site improvements shall be started nor shall any building or structure be erected, altered...
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