State ex rel. Thomas v. Ludewig

• Decision Date: 22 October 1962
• Citation: 116 Ohio App. 329,187 N.E.2d 170
• Parties: , 22 O.O.2d 179 STATE of Ohio ex rel. Victor H. THOMAS and Curtis L. Thomas, Plaintiff- Relators-Appellees, v. Frank M. LUDEWIG as Commissioner of Inspections of The City of Middletown, Ohio, Defendant-Respondent-Appellant.
• Court: Ohio Court of Appeals

Page 329

116 Ohio App. 329

187 N.E.2d 170, 22 O.O.2d 179

STATE of Ohio ex rel. Victor H. THOMAS and Curtis L. Thomas, Plaintiff- Relators-Appellees, v. Frank M. LUDEWIG as Commissioner of Inspections of The City of Middletown, Ohio, Defendant-Respondent-Appellant.

Court of Appeals of Ohio, First District, Butler County.

Oct. 22, 1962.

Tilmon A. Ellison and William Rathman, Middletown for defendant-appellant.

George H. Elliott and Clinton D. Boyd, Jr., Middletown, for plaintiffs-appellees.

FESS, Judge.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Butler County in an action in mandamus, in favor of relators, finding that the provisions of zoning ordinances of the City of Middletown insofar as they purport to prohibit the erection of a gasoline and oil service station on the premises of relators, are arbitrary, unreasonable and beyond the zoning power of such municipality, and that such prohibition has no tendency to promote the public health, safety, morals, convenience or general welfare and bears no reasonable relation thereto, and ordering respondent to issue to relators a building permit for the construction of such station in accordance with the application of relators previously made to respondent and refused.

The relators' property which is the subject of this litigation, consists of a triangular lot with an improved dwelling thereon, located at the northeast corner of the intersection of Vannest Street and Manchester Road in the City of Middletown, Butler County, Ohio. Relators acquired this property in October of 1956 from one John Brooks who, in turn, had acquired the property in either 1939 or 1940. Brooks completed the house which he erected on said lot in 1947. At that time, the property was not within the city and was unzoned. The zoning ordinance in effect prior to the annexation provided that territory subsequently annexed to the city should be regarded residential, unless otherwise specified. Prior to October 1956, when relators acquired the property, the territory had been annexed to the City, and amendments to the zoning ordinances applicable thereto had been adopted. At the time of the adoption of the amendments to the zoning ordinance, after annexation, the parcels were zoned in accordance with the then existing uses--B-1 (neighborhood business) and R-1 (single-family residence). Since a dwelling was already erected on relators' property, it was logical that it be zoned residential.

At the time relators acquired title to this property there was, as now, situated on the same a single-family, residential frame house. East of this property on Manchester Road, and north of Manchester Road, the area is zoned R-1 and is built up with residences similar to relators', some of which are less elaborate, but none more elaborate. North and east of relators' property on Vannest Street are similar houses, likewise in areas zoned R-1.

At the time Brooks purchased this lot, the neighborhood was substantially rural and the house he built upon the lot in question was the first new house completed after World War II. At that time the nearest commercial establishment was half a mile away. Thereafter, there was constructed a grocery store and what is designated as a Pony Keg. Then, a drive-in ice cream place was built to the west; later, a super service station was built at the southeast corner of Ellen Drive and Manchester Road, across such road from relators' premises. premises.

The lot in question comprises a triangle abutting on the northwest side of Vannest Street, which runs in a northwesterly direction from Manchester Road, and on the south side on Manchester Road running east and west. Relators' triangular lot runs 316.55 feet along Vannest Street, and 225.18 feet along Manchester Drive. The base of the triangle on the west is 227.16 feet. Across Vannest Street from relators' lot, there is an irregular area zoned B-1 running 241.55 feet along Vannest Street, and 390.45 feet along Manchester Road. Northeast of this commercial area along Vannest Street eight 50-foot lots are zoned as R-1, single-family residence. Across Manchester Road from the commercial area are three lots, one lot abutting the intersection of Vannest Street and Manchester Road, and another 87-foot lot across Manchester Road opposite relators' property, all zoned residential. Relators' property is at the southeasterly tip of a larger triangular area consisting of 15 lots zoned residential. On the south of Manchester Road is a rectangular area running 471.80 feet east from Ellen Drive, and 200 feet deep, zoned B-1 neighborhood business. Ellen Drive dead-ends on Manchester Road along relators' property. Approximately 40 feet of this latter commercial area is across the street opposite relators' premises.

On August 7, 1957, the City adopted Ordinance No. 3296 which, among other things, zoned relators' property as R-1 (single-family residence) along with all other areas in the vicinity, except for the area at the northwest corner of Vannest Street and Manchester Road, which was zoned as B-1 (neighborhood business). The area at the southeast corner of Manchester Road and Ellen Drive had been zoned as B-1 (neighborhood business) under the original zoning ordinance of the City, Ordinance No. 3122.

The two filling stations, the electric transformer station, the supermarket and the ice cream stand, all mentioned above, are the only commercial structures in the vicinity. All other properties in the vicinity are improved with residences, except for a few scattered unimproved lots.

Since the plaintiffs purchased the property, an addition was built to the McGee Grocery of about 65-foot frontage on Vannest Avenue, and a Mobil Service Station has been erected directly opposite this property to the west. There was likewise erected a substation of the Cincinnati Gas and Electric Company.

Since relators have acquired this property, there has been substantial growth out Manchester Road. New subdivisions have been built up and traffic has increased to a very considerable extent on Manchester Road. The highway has been changed. Vannest Street also has considerable traffic.

Prior to its sale, Brooks had applied to have this property zoned for business but he sold the same to relators before any action was taken on his application.

After their purchase of the property, relators prosecuted Brooks' application for a change of zoning. The city commission property B-1. Later, the commission reversed that decision and it was zoned R-1. that decision and it was zoned R-1. This property is now being rented and occupied as a residence, for which relators receive $100 per month rent.

Relators purchased this property and paid the sum of $18,500 therefor with the intention of building a filling station thereon. They value the property at $15,000 for residence purposes.

Appraisers for the Middletown Realty Board have appraised the property for R-1 purposes at $16,500, and for B-1 purposes at $22,500. The appraisers assert that this real estate is desirable as a business corner and that it has suffered a certain depreciation as a residence in the commercial area. The opinion of one of the appraisers is to the effect that the neighborhood is predominately commercial.

The evidence offered by the respondent is to the effect that the property is worth $16,500 as a residence and is suitable for that purpose. Relators admit and the court found that the lot is suitable for residential use.

On November 12, 1958, the respondent, the Commissioner of Inspections for the City, charged with the responsibility of enforcing the provisions of the zoning ordinance, refused relators' application for a permit to erect a filling station on their property. Thereafter, without applying to the Board of Zoning Appeals for a variance or other relief contemplated by the ordinance or taking an appeal to the Common Pleas Court pursuant to the provisions of Chapter 2506 of the Revised Code, relators filed the instant action for a writ of mandamus in the Common Pleas Court.

Appellant's third assignment of error is that the judgment of the Common Pleas Court is contrary to law in that it erred in holding that it was not necessary for the relators to exhaust the administrative remedy provided in the zoning ordinance before filing their action in mandamus. A majority of the members of this court, Judges Brown and Duffy, are of the opinion that a trial court does not abuse its discretion in allowing a writ of mandamus merely because the relator also has an adequate remedy in the ordinary course of the law and conclude that the third assignment of error is not sustained, upon authority of State ex rel. Killeen Realty Co. v. City of East Cleveland, 169 Ohio St. 375, 160 N.E.2d 1; State ex rel. Wesselman v. Board of Elections of Hamilton County, 170 Ohio St. 30, 33, 162 N.E.2d 118; State ex rel. Grant, Ex's v. Kiefaber et al., Montgomery County Planning Comm., 171 Ohio St. 326, 170 N.E.2d 848. The writer of this opinion disagrees for reasons stated in his dissenting opinion appended hereto.

Appellant also assigns as error:

1. The judgment of the trial court is contrary to law in that the court erred in holding that relators' property, though suitable for residential purposes for which it is zoned, is better suited for commercial purposes and, therefore, a permit for a gasoline filling station should be granted.

2. The evidence is not sufficient to sustain the judgment of the trial court.

In support of their respective contentions the parties approach their discussion from diametrically opposite aspects. Appellant asserts that to warrant the issuance of the writ of mandamus, the burden is on the relators to show the zoning ordinance to be clearly arbitrary and unreasonable and to have no substantial relation to the public health, safety, morals or general welfare, and that since the evidence discloses that the premises are 'suitable'...