Opinion
No. 21490
Decided April 17, 1929.
Municipal corporations — Building inspector to issue building permit — Mandamus — Permit refused because building might conflict with future zoning ordinance.
ERROR to the Court of Appeals of Mahoning county.
This is a suit in mandamus and was instituted in the Court of Appeals of Mahoning county on October 16, 1928. The relator seeks a writ to require the respondent, as inspector of buildings for the city of Youngstown, to issue to it a permit to erect an ice plant in that city on a certain location described in the application. An alternative writ of mandamus was issued by the Court of Appeals October 16, 1928, and made returnable October 22, 1928. Later the case was submitted to the Court of Appeals upon an agreed statement of facts, in substance as follows:
The relator on August 28, 1928, made written application to the respondent for a permit to erect an ice plant at the specified location in said city, which comprises a complete city block; relator did not then have complete plans and specifications for its building, but did have and present to the inspector plans and specifications of similar buildings located elsewhere, and discussed with him the type, size, character, dimensions, and location of the proposed building, and thereupon said inspector issued a permit to erect the proposed building, as requested, and was paid the requisite fee therefor. Complete plans and specifications complying fully with the city requirements were to be furnished within a few days. Thereafter, on September 11, 1928, the relator completed the purchase of the lots constituting the location of the proposed building, which it had theretofore held under option, and paid the purchase price therefor, to wit, $28,500. Subsequently, to wit, September 28, 1928, the relator completed the construction of a switch track to and over said property at an expense of $1,500. On September 29, 1928, the respondent notified the relator in writing that said building permit was revoked on account of failure to submit plans for the proposed ice plant.
On October 1, 1928, there was introduced in the council of the city of Youngstown a certain zoning ordinance of an emergency character in form, which is referred to as a "stop gap" measure; its purpose being to retain the status quo of the building conditions in the city. Its passage was requested by the planning commission of the city as a temporary zoning ordinance, pending the preparation of a plan for the complete zoning of the city.
The relator on October 10, 1928, presented plans and specifications of the proposed building to the respondent and demanded a reissuance of its permit for the construction of said building at the specified location, as indicated in the plans and specifications, which was refused by the respondent in writing; the reason stated being "that the City Planning Commission has proposed a zoning plan, with which plan this building may conflict because of its character, but not because of the violation of the state or city building codes." Upon appeal from said refusal to the board of appeals, that body approved the action of the building inspector. The building inspector at the time of relator's first application was, and now is, of the opinion that the proposed building does not conflict with any law of the city or state.
On the 20th day of October, the city council of the city of Youngstown was called in special session, and the zoning ordinance, heretofore referred to, was passed under the suspension of rules as an emergency measure.
The Court of Appeals denied the application of the plaintiff for a peremptory writ of mandamus filed on October 16, 1928, and dismissed the petition. Whereupon error was prosecuted to this court.
Messrs. Henderson Kennedy, for plaintiff in error.
Mr. Carl Armstrong, director of law, Mr. J.P. Barrett, and Mr. R.R. Thombs, for defendant in error.
This action having been instituted on October 16, 1928, the question presented is whether the relator was then entitled to the writ of mandamus prayed for. If it was, any action thereafter taken by the municipal authorities, whether by so-called emergency ordinance or otherwise, cannot serve to defeat that right or affect the jurisdiction of the court to grant the remedy to which the relator was then entitled. It is to be borne in mind that the plan of the proposed structure is not in conflict with any laws of the city or state; that is conceded. The permit applied for was denied only upon the ground that the city planning commission had proposed a zoning plan with which the proposed building "may conflict because of its character, but not because of the violation of the state or city building codes." The denial of such permit was therefore based upon the possibility that such building constructed in accordance with the proposed plans would conflict with an ordinance theretofore introduced in the council of the city of Youngstown, in the event such ordinance should thereafter be enacted. It is therefore conceded that on the 10th day of October, when the relator's application for the permit was renewed, and also on the 16th of October, when relator's action in mandamus was instituted, there was neither any law nor ordinance which in any wise forbade the erection of such building in accordance with the proposed plans and specifications, or precluded the issuance of a permit therefor.
An inspector of buildings may not arbitrarily refuse the issuance of a building permit. It was quite recently held by this court in the case of State, ex rel. Gaede, v. Guion, Commr. of Bldgs., 117 Ohio St. 327, 158 N.E. 748, that under such circumstances the provisions of the so-called stop-gap zoning ordinance theretofore enacted, but the effective date of which had been suspended by a referendum petition, were not a valid defense in an action for mandamus to compel the issuance of such permit. In the present case, under the law in force at the time the application was made, the relator was concededly entitled to a permit, and under the law then in force and effect it was the duty of the inspector of buildings to issue the same, particularly in view of the large expenditures made by the applicant pursuant to the sanction and approval of the building inspector. Such right of a property owner is not subject to the mere whim or caprice of the official whose duty it is to issue a building permit, if the applicant has fully complied with the law. No presumption is indulged in favor of the restriction or limitation of an owner in the use of his premises. Statutes or ordinances which restrain the exercise of such right, or impose restrictions upon the use of private property, will always be strictly construed, and the scope of such statutes or ordinances cannot be extended to include limitations not therein clearly prescribed. State, ex rel. Moore Oil Co., v. Dauben, 99 Ohio St. 406, 124 N.E. 232. Certainly no effect can be given to the restrictive provisions of an ordinance which it is contemplated by the building inspector may be enacted at some time in the future.
Judgment reversed and writ allowed.
MARSHALL, C.J., KINKADE, ROBINSON, JONES, MATTHIAS and ALLEN, JJ., concur.