Opinion
No. 70-349
Decided February 3, 1971.
Zoning — Mandamus — Not available, when — To require issuance of building permit — In territory annexed by municipality — Applicability of municipal zoning ordinance — Administrative remedies not exhausted.
APPEAL from the Court of Appeals for Montgomery County.
Relator was denied a writ of mandamus by the Court of Appeals wherein relief was sought to require the Chief Building Inspector of Kettering to issue a building permit to construct an office building on relator's land.
Relator's land was annexed to the city of Kettering from Washington Township on November 12, 1968. Previously (1955), Kettering had enacted a zoning ordinance, Section 937.07 of which provides that property which has not been specifically included within a zoning district is declared to be in the R-1 (Residential) District, and that all property annexed to the city is classified "R-1," until otherwise classified. On January 3, 1969, relator applied for a building permit, which respondent, relying upon that ordinance, denied. Both before and after annexation, relator's land was zoned for residential use. Relator is before this court upon an appeal as of right, the case having originated in the Court of Appeals.
Messrs. Staley, Buechele Brown and Mr. Homer E. Lankford, for appellant.
Mr. John J. Adams, law director, for appellee.
Relator contends that his application for a permit was denied by respondent for the reason that the Kettering ordinance, supra, zoned his property "residential" without notice and that by virtue of such legislative action he was prohibited from taking an effective administrative appeal.
Relator made no application for a variance before filing this action. Because he did not exhaust the administrative remedies available to him, mandamus is not available.
R.C. 519.18 provides that upon annexation of township territory to an existing municipal corporation, the zoning regulations then in effect remain in full force until the legislative authority of the city adopts either the existing zoning regulations or new regulations. At no time, either before or after annexation, was the classification of relator's land modified from "R-1."
Further, relator has failed to show that the chief building inspector is under a clear legal duty to issue the building permit.
The judgment of the Court of Appeals, denying the writ of mandamus, is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, STEPHENSON, STERN and LEACH, JJ., concur.
STEPHENSON, J., of the Fourth Appellate District, sitting for CORRIGAN, J.