State ex rel. Killeen Realty Co. v. City of East Cleveland

169 Ohio St. (N.S.) 375
CourtOhio Supreme Court
DecidedJuly 1, 1959
DocketNo. 35867
StatusPublished

This text of 169 Ohio St. (N.S.) 375 (State ex rel. Killeen Realty Co. v. City of East Cleveland) 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. Killeen Realty Co. v. City of East Cleveland, 169 Ohio St. (N.S.) 375 (Ohio 1959).

Opinion

Peck, J.

It is the contention of the respondents that the relators have no right to maintain an action for a writ of mandamus but “could and should” have brought an action for a declaratory judgment to obtain a determination of the validity of the zoning of their property. Without here passing upon the propriety of the suggested declaratory judgment action, we find that the jurisdictional prerequisites to a mandamus suit exist.

The light to maintain such an action as the instant one has been determined in a long line of cases in which this court has consistently held that a writ of mandamus may be allowed to [378]*378compel the granting of building permits denied by local authorities on zoning grounds. Those cases include State, ex rel. Wiegel et al., Trustees, v. Randall, Dir., 160 Ohio St., 327, 116 N. E. (2d), 300; State, ex rel. Fairmount Center Co., v. Arnold, Dir., 138 Ohio St., 259, 34 N. E. (2d), 777, 136 A. L. R., 840; State, ex rel. Synod of Ohio of United Lutheran Church, v. Joseph et al., Comm. of Village, 139 Ohio St., 229, 39 N. E. (2d), 515, 138 A. L. R., 1274; Hauser, Commr. of Buildings, v. State, ex rel. Erdman, 113 Ohio St., 662, 150 N. E., 42; State, ex rel. Associated Land & Investment Corp., v. City of Lyndhurst, 168 Ohio St., 289, 154 N. E. (2d), 435; State, ex rel. Ice & Fuel Co., v. Kreuzweiser, Inspr. of Buildings, 120 Ohio St., 352, 166 N. E., 228; and State, ex rel. Gaede, v. Guion, Commr. of Buildings, 117 Ohio St., 327, 158 N. E., 748. Thus the right to maintain a mandamus action to compel the issuance of a building permit in a proper case is well established.

There remains, however, a consideration as to whether there has been such an exhausting of administrative remedies in the present situation as to make a writ of mandamus available as an avenue of relief. In this connection, it is argued vigorously by the respondents that, since no detailed plans and specifications have ever been presented to the respondents, there was never an application formally filed which could have been favorably acted on by respondents. On that point the Court of Appeals found the record to be “abundantly clear” that to have made such a formal filing of complete plans and specifications would have been “to perform a useless act,” and it is also obvious from the record that the preparation of such plans and specifications would have been an onerous and expensive undertaking. (The city Building Inspector testified that the cost of such preparation would have been about $14,000.) It is further noted from the record that the refusal of the respondents to grant the permit in question was never bottomed upon the absence of such plans and specifications from their files. Where the doing of an act which is a prerequisite to the performance of an assigned function of a municipal authority would be onerous and expensive, where it is clear that the doing of such act would be a vain thing, and where the failure to do such act is not the ground for refusal by the municipal author[379]*379ity to perform its assigned function, failure to do that act will not, as a matter of law, constitute a bar to an action in mandamus to compel the performance of such function.

Passing from the jurisdictional objections which the respondents have raised to the maintenance of a mandamus action, and before entering upon a consideration of the relators’ affirmative contentions, we feel it advisable to briefly review the historical background of the law of zoning. We do this because of the nature of the reasoning most heavily relied upon by the respondents in declining to grant the permits sought.

At the outset it must be recognized that zoning even in its least innocuous and most unrestricting form constitutes a limitation on the ownership of property. The time arrived generations ago1 when it was recognized, for example, that one could not construct and maintain a stockyard and abattoir on his property in an otherwise exclusive residential area, and when that day of recognition arrived the right of ownership of land without limitation passed (if, in fact, it ever existed). Once the validity and propriety of ruling out the more obnoxious of real estate uses were established, the next problem became obvious: What was to prevent absolute dictation of land use by governmental authority? In the United States, the answer was: The Constitution. Somewhere far short of absolute dictation of land use by the sovereign, the point is reached where control amounts to the taking of property without due process of law and without compensation.

This problem is considered in Constitutional Law in Community Planning, 20 Law and Contemporary Problems, 199, where it is observed:

“In view of the importance of the interests at stake in determining the kind of communities in which people reside, work, [380]*380rear their children and seek fulfillment of the whole range of human aspirations, it is appropriate to consider whether, and in what respects, the courts have failed to protect deserving interests with constitutional safeguards and, on the other hand, have erected unnecessary or unwise constitutional obstacles to effective action.

“Governmental regulation of economic activity and programs for economic and social betterment no longer are likely to face serious objections grounded in the United States Constitution. * * * However, it would be a mistake to assume that there are no important problems of constitutional law today in local planning activities. A dominant characteristic of such activities is the alteration of traditional concepts of real property ownership. There may be some basis for a belief that the range of the police power of the states is narrower when property is regulated than when freedom of enterprise is controlled. At some ^indefinable point, regulation of property shades into taking of property, which must be compensated, though it must be conceded that the instances in which the court [United States Supreme Court] has determined that this point was exceeded are rare, and that there have been some examples of extreme legislative encroachments upon property which have gone uncompensated.” (Emphasis added.)

In the case of Chicago Title & Trust Co. v. Village of Franklin Park, 4 Ill. (2d), 304, 122 N. E. (2d), 804, the plaintiff was the owner of a tract of land which was rezoned from' industrial to residential use. In passing upon the plaintiff’s complaint based on such rezoning, the court said:

“We are not unmindful that the zoning regulations are sheltered with the presumption of validity and that zoning for residential purposes is always impressed with the wholesome objective of protecting the civic and social values of the American home. Here, however, there is no proof that the residential properties adjacent to the instant tract of land will suffer if one more industrial operation is added to the great number that already abounds in that area. On the contrary, if only residential use was enforced, the damage to the plaintiff is appreciable and the effect is confiscatory.

“ * * * We here * '* * reach the same conclusion that the [381]*381trial court was correct in its determination that the property in question is wholly unsuited for residential purposes, that

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Bluebook (online)
169 Ohio St. (N.S.) 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-killeen-realty-co-v-city-of-east-cleveland-ohio-1959.