State ex rel. Trusz v. Village of Middleburg Heights

• Decision Date: 15 January 1960
• Parties: , 82 Ohio Law Abs. 481, 16 O.O.2d 24 STATE of Ohio ex rel. Stella TRUSZ et al., Plaintiffs-Relators, v. VILLAGE OF MIDDLEBURG HEIGHTS, et al., Defendants-Respondents.
• Court: Ohio Court of Appeals

Page 87

112 Ohio App. 87

163 N.E.2d 778, 82 Ohio Law Abs. 481, 16 O.O.2d 24

STATE of Ohio ex rel. Stella TRUSZ et al., Plaintiffs-Relators, v. VILLAGE OF MIDDLEBURG HEIGHTS, et al., Defendants-Respondents.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 15, 1960.

Marston G. Bergmann, Cleveland, for plaintiffs-relators.

Carney & Carney, Howard W. Broadbent, Cleveland, for defendants-respondents.

SKEEL, Judge.

This is an original action filed in this court wherein the relator seeks a writ of mandamus ordering the defendants, the Building Inspector of Middleburg Heights, the members of the Zoning Board of Appeals, the Mayor of said Village, and the Village of Middleburg Heights, to issue a building permit in accord with an application filed with the Village, to build a gasoline station on the southwest corner of East Bagley Road and West 130th Street in said Village. The defendants have filed a demurrer wherein it is claimed that the petition does not state a cause of action.

The petition, after describing the property as located in the Village of Middleburg Heights, and alleging her ownership thereof, and also identifying the several defendants in their official capacities with the Village, and describing the Village as a defendant, alleges that the property on all four corners at the intersection of East Bagley Road and West 130th, including plaintiff's property, is vacant land and that the plaintiff's property is zoned for residence purposes. It is further alleged that the property on all four corners is located in an area lower than the residential properties and/or homes surrounding the area. The land to the rear of the parcel concerned and as above described and facing on East Bagley Road has recently been zoned semi-commercial for church purposes.

It is alleged that the plaintiff on May 1, 1959 filed a written application with the Building Commissioner of the Village as required by the Village Building Code, and on the form prescribed therefor, to erect a gasoline service station on her property, which application was accompanied by a detailed set of plans and specifications which it is alleged conformed in all respects with the building regulations of the Village. (The allegation that such application conformed to zoning regulations is clearly a misstatement of fact). It is alleged that the application was denied by the Building Commissioner 'solely on the basis of zoning regulations of the Village of Middleburg Heights, Ohio, under Village Ordinance No. 1955.41, which restricts said location to residential use.' It is alleged that upon appeal and hearing before the legally constituted Zoning Board of Appeals in which administrative procedure was fully complied with, the Board approved the ruling of the Building Inspector and Planning Commission and denied the application on the basis that the same was contrary to the zoning ordinance of the Village of Middleburg Heights, Ohio.

It is further alleged that the village ordinance which restricts the use of relator's property to residential use is unlawful and invalid for the reason that it constitutes an unlawful delegation of legislative powers to an administrative body, to-wit: the Zoning Board of Appeals, because there is no criteria properly established on the basis of which the Zoning Board of Appeals may exercise its discretion except as provided in Subsection (h) of Section 22 of Ordinance No. 1955-41, which states:

'Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this ordinance, the Board of Appeals shall have power to vary the application of any provision in harmony with the general purpose and intent of this ordinance, so that the public health, safety, morals, and general welfare may be secured and substantial justice done, and may order a public notice and hearing before acting.

'Variations in specific cases of practical difficulty or unnecessary hardship, in addition to other proper variations, shall include the following:

'2. Permit in any district such modifications of the requirements of this ordinance as said Board may deem necessary to secure an appropriate development of a lot or parcel where adjacent to such lot or parcel there are buildings or uses which do not conform to the regulations of this ordinance, provided that the Board shall find no material damage or depreciation in value will result to neighboring properties.

'6. Permit in a use district any use deemed by the Planning Commission in general keeping with the uses authorized in such district.'

It is further alleged that the decision of the Board of Appeals was whimsical and arbitrary and that it abused its discretion in denying relator's application. Also, it is alleged that the Board failed to set up standards to guide its action or that of property owners under the terms of the ordinance. It is alleged that the sections of Ordinance No. 1955-41, here involved, are arbitrary, unreasonable, confiscatory and deprive relators of their property without due process of law in violation of the Constitution of the United States, Amendment XIV, and Article 1, Sections 16 and 19 of the Constitution of Ohio, and that such ordinance is discriminatory on its face and deprives relators of their right to equal protection of the law under the Constitution of the United States, Amendment XIV, and Article 1, Section 2, of the Constitution of Ohio. The prayer is for a writ directing the defendants to issue a building permit to build a gasoline service station pursuant to relators' application.

The demurrer presents two questions:

1. Whether under R.C. §§ 2506.01 to R.C. 2506.04, inclusive, providing for an appeal from all orders of all administrative agencies, the relators are, in fact, afforded an adequate remedy at law so that an action in mandamus cannot be maintained on the facts pleaded, and 2) whether or not (even if such action is proper) as a matter of law, the allegations of the petition are sufficient to state a cause of action entitling the relators to the writ prayed for.

Revised Code, § 2731.01 provides:

'Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, a board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.'

Revised Code, § 2731.05 provides:

'The writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law.'

In considering the first question presented by the demurrer as to whether the relator can seek relief in mandamus where an appeal from the final decision of the Zoning Board of Appeals is, at least, possible, under Chapters 2505 and 2506 of the Revised Code, the answer must be that in a proper case, mandamus is available. The deciding factor is as to whether or not such an appeal provides an adequate remedy in the ordinary course of the law. There are many cases where such an appeal will not afford an adequate legal remedy where the relator is, upon the undisputed facts, clearly entitled to the relief asked and the processes of appeal would be subject to unreasonable delay in affording relief. The selection of remedies is to be determined by a consideration of the purposes to be accomplished, based on the facts involved.

It has been said many times that mandamus cannot be used as a substitute for an appeal. In the case of State ex rel. Brammer v. Hayes, 164 Ohio St. 373, 130 N.E.2d 795, an action in mandamus was filed seeking to direct the Clerk of the Court of Common Pleas to issue an execution to the Sheriff on the property of the defendant to satisfy a judgment for relator rendered in an action in which the relator was plaintiff and the Allied Chemical & Dye Corp. was the defendant, and wherein the plaintiff had recovered damages upon the verdict of a jury. Upon an appeal by the defendant, the Court of Appeals reversed the judgment as against the weight of the evidence. The journal entry returned to the trial court reversing such judgment showed that two of the judges of the Court of Appeals voted for such reversal and one judge dissented. It was the claim of the relator that the judgment of the Court of Appeals, by reason of the constitutional provision requiring all three members of the Court of Appeals to agree upon the reversal of a judgment on the weight of the evidence when entered upon the verdict of a jury, was void as a matter of law so that the judgment of the trial court was valid, unreversed and, therefore, enforceable. In denying the writ, the Supreme Court held that the plaintiff had an adequate remedy at law, that is by appeal. This case clearly sets out the rule denying the right to the use of an extraordinary writ, such as mandamus, to correct an erroneous use of the judicial process in the trial of a case where the court was acting within its jurisdiction.

In the case of Eggers v. Morr, 162 Ohio St. 521, 124 N.E.2d 115, an action seeking to enjoin the county commissioners from enforcing a resolution to effect a zoning amendment changing the use classification of certain property from residential to industrial, it was claimed that the Board of County Commissioners acted arbitrarily, unreasonably and capriciously and that the change would result in congestion of population, increased traffic problems, overcrowded schools, destruction of the privacy of plaintiffs, creation of noise and confusion, lessening of property values, and harm to the county zoning plan. It is evident from the foregoing claims that the passing of the resolution was clearly a legislative matter subject to the exercise of legislative judgment. Under Chapters 2505 and 2506 of the Revised Code, there could be no doubt but that an appeal to the Court of Common Pleas was available to any interested party who felt aggrieved by the action of the county commissioners. The court held:

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