Summary
In Spiccia, supra, 2 Ohio St.2d at 130, 31 O.O.2d at 228-229, 207 N.E.2d at 236, the Ohio Supreme Court held that a Dairy Queen-type restaurant, in which "all services to the purchasers are to take place inside the building, and where it is contemplated that much of the food will be eaten at tables provided for that purpose," was properly held to be a "restaurant" as opposed to a "drive-in restaurant," despite the fact that "much of the food may be carried to the parked cars and there eaten or carried out and eaten entirely off the premises."
Summary of this case from Elbert v. Bexley Planning CommOpinion
No. 38727
Decided May 5, 1965.
Zoning — Use of property for "restaurant" — As opposed to "drive-in restaurant" — Terms construed, how.
What constitutes a "restaurant" as opposed to a "drive-in restaurant" for the purpose of determining the permitted use of property under a zoning classification in which those terms are not otherwise defined is determined by considering the common and ordinary meaning of those terms, liberally construing them in favor of the permitted use so as not to extend the restrictions of the ordinance to any limitation of use not therein clearly prescribed.
APPEAL from the Court of Appeals for Cuyahoga County.
The relator petitioned the Court of Appeals for a writ of mandamus commanding the respondent Joseph Abate, Building Commissioner of the city of Richmond Heights, Ohio, to issue a permit for the erection of a Dairy Queen restaurant on a parcel of real estate in that city. The parcel in question is so classified in the zoning ordinances that a restaurant is permitted, a "drive-in" restaurant requires another classification. That court heard the matter upon the merits, found upon the evidence that the proposed use of the property constitutes a restaurant which is a permitted use under the applicable zoning classification and does not constitute a drive-in restaurant which is a prohibited use under the applicable zoning classification, and proceeded to issue the writ.
Mr. Sanford W. Likover, for appellee.
Mr. William H. Stein, director of law, and Mr. Charles E. Merchant, for appellants.
What constitutes a "restaurant" or a "drive-in restaurant" is not otherwise defined in the zoning ordinance, hence whether the proposed use constitutes one or the other was determined by considering the common and ordinary meaning of those terms. This was proper. Since the ordinance is a police regulation and imposes restrictions upon the use of property, the language defining a permitted use is required to be liberally construed in favor of permitting the use proposed by the property owner.
"Statutes or ordinances * * * which impose restrictions upon the use * * * of private property, will be strictly construed and their scope cannot be extended to include limitations not therein clearly prescribed." State, ex rel. Moore Oil Co., v. Dauben, Bldg. Inspr., 99 Ohio St. 406. See, also, State, ex rel. Ice Fuel Co., v. Kreuzweiser, Inspr. of Bldgs., 120 Ohio St. 352.
The proposed use of this property is for a Dairy Queen type restaurant in which, in addition to the usual products, sandwiches and french fries are to be prepared and sold, where all services to the purchasers are to take place inside the building, and where it is contemplated that much of the food will be eaten at tables provided for that purpose. This operation was properly held to be permitted by the ordinance, in spite of the fact that it is also contemplated that much of the food may be carried to the parked cars and there eaten or carried out and eaten entirely off the premises. This is particularly true when we consider the rule of construction applicable to the zoning ordinances.
The appellants' argument that the relief was improperly granted because the relator had an adequate remedy at law ignores the often stated proposition that the Court of Appeals has discretion to issue the writ of mandamus, although there exists a plain and adequate remedy at law. State, ex rel. Grant, Exr., v. Kiefaber et al., Montgomery County Planning Commission, 171 Ohio St. 326. This court will not interfere with exercise of such discretion by that court. State, ex rel. Wesselman, v. Board of Elections of Hamilton County, 170 Ohio St. 30; State, ex rel. Killeen Realty Co., v. City of East Cleveland, 169 Ohio St. 375.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., SMITH, MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.
SMITH, J., of the Sixth Appellate District, sitting for ZIMMERMAN, J.