Opinion
No. 19197
Decided December 15, 1925.
Municipal corporations — Zoning ordinance pending — Mandamus to compel building commissioner to issue permit.
On January 31, 1924, the relator filed with the building commissioner an application for a permit with plans attached, to which no objection was made on the ground that the plans did not conform to the state and city building codes. There was pending at the time a zoning ordinance passed by the city council on April 1, 1924, but which did not become effective until May 4, 1924, two days after relator's petition for mandamus was filed and the alternative writ issued and served. Since under Section 452-90 of that ordinance, permits "issued before the passage" thereof were exempt from its provisions as therein provided, it became the duty of the building commissioner to issue the permit on relator's application, and the performance of that duty may be enforced by mandamus.
ERROR to the Court of Appeals of Hamilton county.
This action originated in the Court of Appeals. Erdman, the relator, sought a writ of mandamus, compelling the respondent, Hauser, as commissioner of buildings, to issue him a building permit. The case having been heard upon the pleadings and an agreed statement of facts, a peremptory writ of mandamus was issued to the relator by the Court of Appeals.
The pertinent facts agreed to are as follows: Prior to June 2, 1923, the relator presented to the respondent an application for a permit to build a business building in the city of Cincinnati. This application was not formally filed at the time, but at the suggestion of the building commissioner was referred to the city planning commission. On June 2, 1923, the planning commission, duly constituted under the city charter, adopted a resolution recommending that no permission be granted, for the reason that the location was "entirely residential and should not be invaded by business." Later, on November 1, 1923, the city planning commission adopted a resolution recommending the issuance of the permit to the relator herein, but the commission did not notify the respondent of its action in recommending the issuance of such permit. Thereupon the relator, relying upon such resolution, purchased the property which he had theretofore contracted for with the right of purchase.
The council of the city of Cincinnati had under consideration a certain zoning ordinance, which had been submitted to a committee for public hearings. Prior to the passage of this ordinance, viz., January 15, 1924, the council of the city of Cincinnati adopted a resolution directing the commissioner of buildings to refuse a permit for the erection of a business building until it had finally acted on the building zone ordinance pending before it. On January 31, 1924, the relator again filed his application for a permit with the building commissioner, who refused the application. He made no examination whatever with regard to whether or not the plans were in accordance with the laws of the state and the ordinance of the city pertaining to the construction of buildings, but the relator was willing at all times to comply therewith, and, if the plans did not conform, was willing to make the same conform to all the laws and ordinances before erection of the building.
Thereafter, on April 1, 1924, the council of the city of Cincinnati passed the zoning ordinance, the effect of which was to make the erection of a business building at the location applied for unlawful and violative of its provisions. The zoning ordinance passed on April 1, 1924, did not become effective until May 4, 1924. This zoning ordinance contained the following subsection:
"Sec. 452-90. Nothing herein contained shall require any change in the plan, construction, size or designated use of a building, for which a building permit has been issued before the passage of this ordinance, provided construction, under such permit, shall be started within six months and the ground story frame work including the second tier of beams shall have been completed within one year and the entire building completed within two years after the date of such permit."
Prior to the effective date of the ordinance, to wit, on May 2, 1924, this relator filed his petition for a writ of mandamus in the Court of Appeals. That court, on consideration, allowed an alternative writ to issue against the respondent, returnable on the 12th day of May, 1924, ordering the respondent forthwith upon receipt of the writ to "issue a building permit to relator herein, or appear before this court on the 12th day of May, 1924, at 9:30 a. m. and show cause why they have not done so." The alternative writ was issued and served on the respondent on May 2, 1924. On April 14, 1925, a peremptory writ was issued by the Court of Appeals, and from this judgment error is prosecuted to this court.
Mr. Frank K. Bowman, city solicitor, and Mr. Landon L. Forchheimer, assistant city solicitor, for plaintiff in error.
Messrs. Bolsinger Benham, and Mr. L.M. Levinson, for defendant in error.
The agreed statement of facts discloses that the relator filed his application for a permit with the commissioner of buildings on January 31, 1924, and that this officer made no examination whether or not the plans attached thereto conformed to the state and city building codes; that if they did not so conform the relator was then, and has since been, willing to conform to all the laws and ordinances before commencing the erection of the building. The entire record also discloses that the specific reason why the plans were not accepted and the permit issued was that a zoning ordinance was then pending, although this ordinance did not become effective until May 4, 1924, more than three months after the relator filed his application for a permit.
On May 2, 1924, relator instituted this suit in mandamus and caused an alternative writ to be issued and served on the same day. After hearing, a peremptory writ was awarded to the relator on April 14, 1925.
The claim of the building commissioner now is that, because of his own nonaction and dereliction of duty, in refusing a permit on January 31, 1924, this writ should not issue on April 14, 1925, at which time the final decree was made by the Court of Appeals, for the reason that a zoning ordinance previously adopted, and effective May 4, 1924, prohibited the issuance of a permit for a business building in the specified location; that consequently no duty could be enjoined upon the commissioner at the date of the final decree, because a permit to construct a business building in a residential district would, at that time, have been violative of the zoning ordinance, and the erection of such building would have been a misdemeanor thereunder.
The contention of the building commissioner is not tenable. Section 452-90 of the zoning ordinance excepted from its operation changes in plans, construction, size, or designated uses of buildings "for which a building permit has been issued before the passage of this ordinance," provided construction under such permit was started within six months and the entire building was "completed within two years after the date of such permit."
The zoning ordinance was passed April 1, 1924. Had the building commissioner issued the permit on January 31, 1924, as he was required to do under the facts agreed to, the relator would have had an opportunity to fully comply with the provisions of Subsection 452-90 of the ordinance, above quoted, pertaining to the starting and completion of the building within the time limit authorized therein. Because of the refusal of the officer to issue the permit on the date prior to the passage of the ordinance, the relator was threatened with the loss of a valuable right later recognized and protected by the zoning ordinance thereafter adopted. He had fully complied with the state and city building codes when he filed his application for a permit, and there seems to have been no reason why it was refused other than the insistence that a zoning ordinance was pending at the time.
Counsel for both sides have called our attention to a Duttenhofer ordinance, said to have been adopted by the city council on September 2, 1924. That ordinance has not been made a part of this record, and therefore we do not consider it here except to say that if this cause were remanded the relator would have the opportunity of seeking relief under that ordinance, as construed by this court in State ex rel. Bolce et al. v. Hauser, Commissioner of Buildings, 111 Ohio St. 402, 145 N.E. 851.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., MATTHIAS, DAY, ALLEN and KINKADE, JJ., concur.