Summary
In Johnson v. United Enterprises, Inc. (1957), 166 Ohio St. 149, 1 O.O. 2d 402, 140 N.E.2d 407, we held that while an injunction will not ordinarily issue if the person seeking the injunctive relief has an adequate remedy at law, the person seeking the injunction need not establish the lack of an adequate remedy where a statute specifically allows an injunction in response to certain circumstances.
Summary of this case from State, ex Rel. Hastings v. MerillatOpinion
No. 34605
Decided February 13, 1957.
Zoning ordinance — Building erected in violation of ordinance — Contiguous property owner damaged thereby — Remedies — Injunction — Special statute — Section 713.13, Revised Code — Right of appeal to Common Pleas Court.
Section 713.13, Revised Code, is a special statute applying only to a situation where a claim is made that a building or structure is being erected, constructed, altered, repaired, or maintained or land is being used in violation of a zoning ordinance or regulation enacted pursuant to Sections 713.06 to 713.12, inclusive, Revised Code, or Section 3 of Article XVIII of the Ohio Constitution, and any person coming within the terms of Section 713.13 may avail himself of its provisions, even though he may have other remedies.
APPEAL from the Court of Appeals for Mahoning County.
Walter O.R. Johnson and Fred W. Zimmerman, hereinafter designated plaintiffs, instituted an action for injunctive relief in the Court of Common Pleas of Mahoning County against United Enterprises, Incorporated (now known as Shutrump United Enterprises, Incorporated), Robert Findlay, Chief Building and Zoning Inspector of the City of Youngstown, and Charles Shutrump Sons Company. United Enterprises, Incorporated, is hereinafter designated defendant.
In their petition plaintiffs allege that they are the owners of certain land zoned as residential "A" under the zoning ordinance of the city of Youngstown; that defendant is the owner of land located in a commercial "A" zoned district, which land abuts for its full width upon the land of plaintiffs; that on July 21, 1954, defendant applied to Robert Findlay, Chief Building and Zoning Inspector of the City of Youngstown, for a permit to erect a store building on its property; that a permit was issued to defendant, but, shortly thereafter, Findlay made an examination of the premises and served notice upon defendant and defendant's contractor that, if defendant's proposed building is erected, such erection will be in violation of the zoning ordinance of the city of Youngstown; that, therefore, the building permit was withdrawn; that, thereupon, in accordance with the provisions of the zoning ordinance, defendant appealed to the Board of Zoning Appeals from the refusal of the building inspector to issue the permit; that on September 15, 1954, the Board of Zoning Appeals ordered the issuance of a permit for the construction of a store building on defendant's land, with the following variations from the regulations in the zoning ordinance covering commercial "A" zone, (1) the elimination of any rear yard, (2) the extension of offstreet parking into a portion of the property which was in residence "A" district, and (3) the permitting of the use of the property for vehicle parking within the setback space required by the zoning ordinance; that Charles Shutrump Sons Company is the general contractor of defendant for the construction of such building; that its representatives and employees are now working and shall, unless enjoined, continue to work upon the erection of such building, in violation of the Youngstown zoning ordinance; that the Board of Zoning Appeals was without legal authority to authorize the issuance of the building permit to defendant; and that the construction by defendant and its contractor of the building on the former's premises in the manner authorized by the Board of Zoning Appeals will cause the plaintiffs irreparable harm, and they have no adequate remedy at law.
Plaintiffs pray that the building permit be declared void and of no effect and ordered cancelled, and that defendant and its contractor, or each of them, be perpetually enjoined from proceeding with or completing the construction of such building, and for such other and further relief in law and equity to which the plaintiffs may be entitled.
Answers to the petition were filed, and a trial was had upon the issues joined.
The trial court granted the prayer of plaintiffs' petition and allowed a permanent injunction against defendant and its contractor from proceeding with or completing the construction of defendant's building in violation of the zoning ordinance of Youngstown in the respects found by the court.
Defendant and its contractor appealed to the Court of Appeals on questions of law and fact. In that court defendant and its contractor moved for leave to withdraw their answer and file a demurrer to plaintiffs' petition, which motion was granted, and a demurrer was filed on the grounds that the trial court had no jurisdiction of the subject matter of the action, that the action was not brought within the time limited for the commencement of such action, and that the petition does not state facts which show a cause of action.
The Court of Appeals found in favor of the plaintiffs upon the first two grounds of the demurrer but sustained it upon the third ground, upon the authority of Eggers v. Morr et al., Commrs., 162 Ohio St. 521, 124 N.E.2d 115. The court held that, since plaintiffs had an adequate remedy at law by appeal, they were not entitled to relief by way of injunction.
Plaintiffs not desiring to plead further, judgment was rendered for defendant.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Johnson Johnson, for appellants.
Mr. Patrick J. Melillo, for appellees.
The sole question which we are called upon to decide is whether plaintiffs, assuming the facts stated in their petition to be true, as we must do upon demurrer, are entitled to injunctive relief.
Section 713.13, Revised Code, reads as follows:
"No person shall erect, construct, alter, repair, or maintain any building or structure or use any land in violation of any zoning ordinance or regulation enacted pursuant to Sections 713.06 to 713.12, inclusive, of the Revised Code, or Section 3 of Article XVIII, Ohio Constitution. In the event of any such violation, or imminent threat thereof, the municipal corporation, or the owner of any contiguous or neighboring property who would be especially damaged by such violation, in addition to any other remedies provided by law, may institute a suit for injunction to prevent or terminate such violation."
Plaintiffs claim that their rights to injunction flow directly from this statute. Their petition states that defendant and its contractor are guilty of the violation or imminent threat thereof, that plaintiffs are the owners of contiguous property and will be irreparably harmed by such violation, and that, therefore, the statute squarely covers their situation.
Defendant contends, however, and the Court of Appeals agrees with it, that the Eggers case, supra ( 162 Ohio St. 521), is authority for the proposition that, since plaintiffs had a right of appeal from the order of the Youngstown Zoning Board of Appeals to the Court of Common Pleas, they were not authorized to bring an independent action to enjoin the carrying out of the order of the board.
We are of the opinion that the Eggers case has no application to the situation presented in the instant case.
In the Eggers case the county commissioners of Hamilton County passed a rural zoning resolution which was submitted to the voters of the townships and favorably voted upon by the voters of Sycamore Township. The county and townships were divided into districts, including residential "A," residential "B," residential "C," retail business "D," light industry "F," heavy industry "G," and resort "H."
An application for a zone change was filed with the Zoning Commission, seeking a change of certain property from the original residential classification to industrial "G." Hearings were held in accordance with law, and the application came before the county commissioners with recommendations from the Zoning Commission and the Hamilton County Regional Planning Commission. A hearing on the application was held by the county commissioners and they passed a resolution approving the change. Thereupon an action for injunction was brought against the county commissioners with the claim that they acted arbitrarily and capriciously, and that unless the court intervened the zoning amendment would become effective.
There was no question in the Eggers case concerning the erecting, constructing, altering, repairing or maintaining of any building or structure or the use of any land in violation of any zoning ordinance or regulation, and, therefore, the provisions of Section 713.13, Revised Code, were not involved. The action was based upon a claimed right to general equitable relief by injunction.
This court held that, since there was a special statute — Section 2461, General Code (Section 307.56, Revised Code) — which provides that a person aggrieved by the decision of the county commissioners in any case may appeal to the Court of Common Pleas, and since all the questions with which the plaintiffs were concerned could be determined in such an appeal under the special statute providing for it, that statute furnished the exclusive remedy available to such plaintiffs.
The first paragraph of the syllabus in that case reads as follows:
"Where an administrative agency has jurisdiction to make an order in a matter pending before it, and a right of appeal from such order to the Court of Common Pleas is provided by law to any person adversely affected thereby, such person is not authorized to bring an independent action in equity to enjoin the carrying out of such order, where the grounds relied upon in seeking the injunction are such as could be fully litigated in the appeal authorized by law."
In the present case, the claim of plaintiffs is that the Youngstown Board of Zoning Appeals had no jurisdiction to make the order which it did, and that, since, as a result of such order, there is being erected a building in violation of the Youngstown zoning ordinance, and since the plaintiffs, as owners of contiguous property, will be irreparably damaged by such violation, and since Section 713.13, Revised Code, under such circumstances, gives plaintiffs a remedy by an action for injunction, in addition to any other remedies provided by law, such section constitutes a special statute which applies to the specific subject matter with which plaintiffs are concerned and, therefore, they may proceed under it.
The Court of Appeals held that plaintiffs are not entitled to bring an action for injunctive relief, for the reason that they could have appealed under the general appellate statutes.
Section 2505.03, Revised Code, the statute relied upon as providing an adequate remedy at law for plaintiffs, reads as follows:
"Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as provided in Sections 2505.04 to 2505.45, inclusive, of the Revised Code, unless otherwise provided by law * * *."
Sections 2505.04 to 2505.45 provide the manner of prosecuting an appeal. They are general statutes covering appeals from judgments of courts and orders of administrative bodies.
It has many times been held by this court that a special statutory provision which applies to specific subject matter constitutes an exception to a general statutory provision covering other subject matter as well as the specific subject matter. State, ex rel. Steller et al., Trustees, v. Zangerle, Aud., 100 Ohio St. 414, 126 N.E. 413; State, ex rel. Elliott Co., v. Connar, Supt., 123 Ohio St. 310, 175 N.E. 200; Acme Engineering Co. v. Jones, Admr., 150 Ohio St. 423, 83 N.E.2d 202.
We are of the opinion that, since Section 2505.03 provides for an appeal from every final order, judgment, or decree of a court and from a final order of any administrative tribunal, unless otherwise provided by law, and since Section 713.13, Revised Code, is a provision of law, otherwise provided, with reference to the erection of a building in violation of a zoning ordinance, and since such section is a special statute covering the particular situation with which the present case is concerned and, therefore, applicable over any general statute, plaintiffs are entitled to proceed thereunder.
It follows that the judgment of the Court of Appeals must be, and it hereby is, reversed, and the cause is remanded to that court with directions to overrule the demurrer and proceed with a trial de novo on the appeal from the Court of Common Pleas.
Judgment reversed and cause remanded.
WEYGANDT, C.J., ZIMMERMAN, BELL, TAFT, MATTHIAS and HERBERT, JJ., concur.