State ex rel. Spiccia v. Abate
| Decision Date | 05 May 1965 |
| Docket Number | No. 38727,38727 |
| Citation | 207 N.E.2d 234,2 Ohio St.2d 129,31 O.O.2d 228 |
| Parties | , 31 O.O.2d 228 The STATE ex rel. SPICCIA, Appellee, v. ABATE, Bldg. Commr., et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
What constitutes a 'restaurant' as opposed to a 'drive-in restaurant' for the purpose of determining the permitted use of property under a zoning classification in which those terms are not otherwise defined is determined by considering the common and ordinary meaning of those terms, liberally construing them in favor of the permitted use so as not to extend the restrictions of the ordinance to any limitation of use not therein clearly prescribed.
The relator petitioned the Court of Appeals for a writ of mandamus commanding the respondent Joseph Abate, Building Commissioner of the city of Richmond Heights, Ohio, to issue a permit for the erection of a Dairy Queen restaurant on a parcel of real estate in that city. The parcel in question is so classified in the zoning ordinances that a restaurant is permitted, a 'drive-in' restaurant requires another classification. That court heard the matter upon the merits, found upon the evidence that the proposed use of the property constitutes a restaurant which is permitted use under the applicable zoning classification and does not constitute a drive-in restaurant which is a prohibited use under the applicable zoning classification, and proceeded to issue the writ.
Sanford W. Likover, Cleveland, for appellee.
William H. Stein, Director of Law, and Charles E. Merchant, Cleveland, for appellants.
What constitutes a 'restaurant' or a 'drive-in restaurant' is not otherwise defined in the zoning ordinance, hence whether the proposed use constitutes one or the other was determined by considering the common and ordinary meaning of those terms. This was proper. Since the ordinance is a police regulation and imposes restrictions upon the use of property, the language defining a permitted use is required to be liberally construed in favor of permitting the use proposed by the property owner.
'Statutes or ordinances * * * which impose restrictions upon the use * * * of private property, will be strictly construed and their scope cannot be extended to include limitations not therein clearly prescribed.' State ex rel. Moore Oil Co. v. Dauben, Bldg. Inspr., 99 Ohio St. 406, 124 N.E. 232. See, also, State ex rel. Ice & Fuel Co. v. Kreuzweiser, Inspr. of Bldgs., 120 Ohio St. 352, 166 N.E....
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Ben Lomond, Inc. v. City of Idaho Falls
...liquor store and many more of the sixty-two businesses permitted in B-2 districts.' (at 619) Similarly in State ex rel. Spiccia v. Abate, 2 Ohio St.2d 129, 207 N.E.2d 234 (1965), the plaintiff's land was zoned for use as a restaurant. Drive-in restaurants were specifically zoned to another ......
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Jones v. Chagrin Falls
...according to the common and approved usage of the language." The Ohio Supreme Court decision in State ex rel. Spiccia v. Abate (1965), 2 Ohio St.2d 129, 31 O.O.2d 228, 207 N.E.2d 234, syllabus, likewise gives emphasis to the rule in interpreting terms not defined in zoning "What constitutes......
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Elbert v. Bexley Planning Comm., s. 95APE04-451
...v. Dauben (1919), 99 Ohio St. 406, 124 N.E. 232, paragraph one of the syllabus; see, also, State ex rel. Spiccia v. Abate (1965), 2 Ohio St.2d 129, 130, 31 O.O.2d 228, 228-229, 207 N.E.2d 234, 236, overruled on other grounds, 7 Ohio St.2d 85, 36 O.O.2d 75, 218 N.E.2d 428; In re Univ. Circle......
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State ex rel. Sibarco Corp. v. City of Berea
...also has an adequate remedy in the ordinary course of the law.' (Emphasis added.) In State ex rel. Spiccia v. Abate, Bldg. Com'r (1965), 2 Ohio St.2d 129, at page 130, 207 N.E.2d 234, at page 236, in the opinion, the court 'The appellants' argument that the relief was improperly granted bec......