State ex rel. Schindel v. Rowe, 70-349

• Decision Date: 03 February 1971
• Docket Number: No. 70-349,70-349
• Citation: 25 Ohio St.2d 47,266 N.E.2d 569,54 O.O.2d 173
• Parties: , 54 O.O.2d 173 The STATE, ex rel. SCHINDEL, Appellant, v. ROWE, Chief Building Inspector, City of Kettering, Appellee.
• Court: Ohio Supreme Court

Page 47

25 Ohio St.2d 47

266 N.E.2d 569, 54 O.O.2d 173

The STATE, ex rel. SCHINDEL, Appellant, v. ROWE, Chief Building Inspector, City of Kettering, Appellee.

No. 70-349.

Supreme Court of Ohio.

Feb. 3, 1971.

Relator's land was annexed to the city of Kettering from Washington Township on November 12, 1968. Previously (1955), Kettering had enacted a zoning ordinance, Section 937.07 of which provides that property which has not been specifically included within a zoning district is declared to be in the R-1 (Residential) District, and that all property annexed to the city is classified 'R-1,' until otherwise classified. On January 3, 1969, relator applied for a building permit, which respondent, relying upon that ordinance, denied. Both before and after annexation, relator's land was zoned for residential use. Relator is before this court upon an appeal as of right, the case having originated in the Court of Appeals.

Staley, Buechele & Brown and Homer E. Lankford, Dayton, for appellant.

John J. Adams, law director, Cleveland, for appellee.

PER CURIAM.

Relator contends that his application for a permit was denied by respondent for the reason that the Kettering ordinance, supra, zoned his property 'residential' without notice and that by virtue of such legislative action he was prohibited from taking an effective administrative appeal.

Relator made no application for a variance before filing this action. Because he did not exhaust the administrative remedies available to him, mandamus is not available.

R.C. § 519.18 provides that upon annexation of township territory to an existing municipal corporation, the zoning regulations then in effect remain in full force until the legislative authority of the city adopts either the existing zoning regulations or new regulations. At no time, either before or after annexation, was the classification of relator's land modified from 'R-1.'

Further, relator has failed to show that the chief building inspector is under a clear legal duty to issue the building permit.

The judgment of the Court of Appeals, denying the writ of mandamus, is affirmed.

Judgment affirmed.

O'NEILL, C. J., and SCHNEIDER, HERBERT, DUNCAN, STEPHENSON, STERN and LEACH, JJ., concur.

STEPHENSON, J., of the Fourth Appellate District, sitting for CORRIGAN, J.