State ex rel. Cities Service Oil Co. v. Orteca ( 1980 )

Paul W. Brown, J.,

concurring in part and dissenting in part. Although mandamus is normally used to compel the exercise of discretion and not to control it, an exception is recognized to prevent an abuse of discretion. Bd. of Education of Sycamore v. State, ex rel. Wickham (1909), 80 Ohio St. 133. The Court of Appeals found that appellants abused their discretion regarding appellee’s building permit applications and that appellants failed to comply with the first order of the Court of Appeals.

There is ample evidence in the record which demonstrates that the appellants never properly considered appellee’s building permit application. The majority opinion, in effect, overlooks appellants’ behavior during the lengthy period of time in the processing of appellee’s application. I would affirm the Court of Appeals since there was an abuse of discretion on the part of appellants and, therefore, mandamus lies to prevent the further abuse of that discretion.