State ex rel. Associated Land & Investment Corp. v. City of Lyndhurst

168 Ohio St. (N.S.) 289
CourtOhio Supreme Court
DecidedNovember 26, 1958
DocketNo. 35492
StatusPublished

This text of 168 Ohio St. (N.S.) 289 (State ex rel. Associated Land & Investment Corp. v. City of Lyndhurst) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Associated Land & Investment Corp. v. City of Lyndhurst, 168 Ohio St. (N.S.) 289 (Ohio 1958).

Opinion

Herbert, J.

Respondents contend that the Court of Appeals erred in failing to dismiss relator’s petition for the reasons that (a) it fails to state a cause of action and (b) it does not set forth a clear right to the remedy of mandamus. Following their own argument, reason (a) must fail since all the pertinent facts are supplied by the two pleadings, and the only disputed fact is as to whether the relator’s proposal provided for 23 parking spaces as alleged in the petition or 21 as alleged in the answer. This variation is not controlling, as will appear hereinafter. Coming to reason (b), the very provisions of Article V of the Lyndhurst zoning ordinance, as quoted in respondents ’ brief, establish that relator has no other available remedy.

The zoning ordinance confers upon the building inspector [293]*293the duty of administering and enforcing its provisions and provides for an appeal from his decision to the Board of Zoning Appeals. The pleadings establish that such procedure was followed in this case.

Section 5 (d) 2 of Article V, dealing with variances and which is cited and quoted in part in respondents’ brief, gives the board power to modify in certain applications. The last sentence of that paragraph reads:

‘ ‘ Such variance or modification shall be confirmed by resolution of the council of the village before becoming effective.”

The applicability of this provision to the instant facts is doubtful but, for the purpose of this opinion, it is assumed.

It may be noted further that Section 5 (d) 6 of Article Y, which establishes the procedure before the Board of Zoning Appeals, contains a subparagraph which concludes: “such decisions shall be confirmed by the council of the village before becoming effective. ’ ’

It would appear, therefore, that the intent of the city council is to require approval by that body of decisions of the Board of Zoning Appeals before such decisions become effective. The pleadings bn their face establish the fact that in this instance the city council has not approved any recommended decision of the board which admittedly does not (and need not) conform to the decision of the building inspector. To summarize factually, the building inspector insisted upon off-street parking spaces for 30 vehicles whereas the decision of the board would have granted the building permit provided the relator would “guarantee that the permanent users of said proposed building would not exceed 35 employees by deed restrictions or other form of covenants satisfactory to the city.” The joint answer then states that “the council refused the permit and upheld the decision of the inspector of buildings by the unanimous vote of all its members for the reason that insufficient parking was provided as required by the zoning ordinance of the city.”

The relator here certainly exhausted its administrative remedies and, in our opinion, had no remedy left except mandamus.

This then brings us to the real question presented which

[294]*294is limited in scope. Although the petition alleges that the provisions of Section 1 (a)-(f), Article IV, are vague, uncertain, discriminating and unreasonable, the relator’s demurrer and arguments are confined to its claim that Section 1 (e), Article IV of the Lyndhurst zoning ordinance, is unconstitutional. Relator admits that its application for a building permit falls within the category of this section which relates to “other buldings or uses.”

Section 1 (e), Article IV, reads as follows:

“Each building or use other than those enumerated above in this section shall have off-street parking space sufficient in capacity for the parking at one time of at least one automobile per five persons engaged on the premises as employees or owners, and in addition parking space reasonably adequate for the commercial vehicles necessary to carry on the business of the .occupants of the premises and for the normal volume of car parking by persons coming to the premises on matters incidental to the uses thereof. Any parking area which is used in whole or in part to meet the requirements of this paragraph and which exceeds ten car parking spaces in total capacity shall be improved as specified in Article IV, Section 1 (a) above.”

Section 1 (a), referred to in the above-quoted provision, contains three numbered subdivisions, is general in nature, and provides in substance (so far as consideration here is necessary) that no building shall be erected, remodeled or altered to provide for a greater degree or intensity of use unless the requirements of the ordinance are fulfilled for off-street garaging or parking of motor vehicles of the occupants, employees, patrons or guests and for off-street loading and unloading. It defines one-car parking space as “not less than eight feet six inches in width, nor less than twenty feet in length, abutting on a driveway adequate in width for the angle of parking for which the car-parking area is designed and clearly marked; and ‘off-street parking’ is such car-parking spaces and such abutting driveway both entirely off the right of way of any public street. ’ ’ Further requirements are provided as to grading, surfacing, draining, and lighting.

Section 1 (b), not in issue here, requires storage for at least one passenger automobile for each dwelling unit.

[295]*295Section 1 (c), captioned ‘‘ Churches, Theatres, and Assembly Halls,” provides a requirement for off-street parking-space on the basis of one automobile per six seats of planned seating capacity.

Section 1 (d) provides that each building containing banks, retail stores or shops having floor space in excess of 1,000 square feet shall have a parking lot sufficient to provide one car-parking space for each 200 square feet on the ground or basement floor, and for each 300 feet (the ordinance as contained in the third amended answer does not include the word, “square,” following the figure, “300”) on any floor above the ground floor.

It will be noted that subdivisions (b), (c), and (d) have fixed standards and criteria to guide the building inspector and Board of Zoning Appeals in the administration of the zoning ordinance. Where specificity is required, subdivision (a), although general in its nature, also meets this test.

The general power of a municipality to include in its comprehensive zoning ordinance requirements that applicants for building permits provide off-street parking space for the occupants of the premises and for those coming onto the premises for purposes in connection with the businesses being carried on therein does not seem to be questioned by the relator here, but such power is inferentially involved in the question before us. A discussion of this subject is found in 2 Yokley Zoning Law and Practice (2 Ed.), 82, Section 210. Therein we find that various municipalities have approached their respective parking problems in different ways, some having confined themselves to provisions relative to dwellings, some having included hotels and hospitals, and some having extended programs relating to numerous and various types of business buildings.

The problem of off-street parking is relatively new, and provisions for such parking are not as yet found in all municipal zoning ordinances but certainly it is a proper municipal concern as traffic conditions in municipalities become more and more complex. This court has already held in State, ex rel. Gordon, City Atty., v. Rhodes, Mayor, 156 Ohio St., 81, 100 N. E.

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Bluebook (online)
168 Ohio St. (N.S.) 289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-associated-land-investment-corp-v-city-of-lyndhurst-ohio-1958.