Opinion
No. 36496
Decided November 30, 1960.
Mandamus — Not available where adequate remedy by appeal — Zoning ordinance restrictions — Building permit denied — Right of appeal.
APPEAL from the Court of Appeals for Cuyahoga County.
The relator owns unimproved property in the village of Beachwood, Cuyahoga County. This property, originally zoned for retail business use, has been rezoned for residential use only. Relator requested the village authorities to change the zoning of his property to a business use and to grant to him a permit to construct a gasoline service station. This request was refused. No appeal was taken under Chapter 2506, Revised Code, but relator brought the instant action in mandamus in the Court of Appeals to compel the granting of the requested building permit.
Relator contends that the zoning ordinance, so far as it restricts his property, is an improper exercise of the police power because the restrictions bear no reasonable relationship to the public health, safety, morals and general welfare, and that the ordinance is void and of no effect because it was not validly enacted.
The Court of Appeals denied the writ and dismissed the petition.
An appeal as of right brings the cause to this court for review.
Mr. Sydney S. Friedman, for appellant.
Mr. Roland A. Baskin, for appellees.
Relator had an adequate remedy by way of appeal under authority of Chapter 2506, Revised Code, providing for a judicial review of final orders of administrative boards of municipalities, to test the validity of the zoning ordinance.
Relator failed to employ that remedy, and this court is of the opinion that the Court of Appeals did not abuse its discretion in denying the writ. State, ex rel. Lorain County Savings Trust Co., v. Board of County Commrs. of Lorain County, ante, 306; State, ex rel. Gund Co., v. Village of Solon, ante, 318; State, ex rel. Grant, Exr., v. Kiefaber et al., Montgomery County Planning Comm., ante, 326.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.