State v. Hauser , 1925 Ohio Misc. LEXIS 1262 ( 1925 )

HAMILTON, J.

The State, in the relation of Arthur Erdman, brought this original suit in mandamus in the Court of Appeals, and Erdman prayed that a writ issue to George Hauser as building Commissioner of Cincinnati, directing him to issue to Erdman a building permit for the erection of a business structure in accordance with plans and specifications on file with said commissioner.

Hauser’s defense was that the city council, by motion directed him to refuse the permit until action by it on the Zoning Ordinance, then pending, and he further averred that the Zoning Ordinance was passed placing the property, on which the building in question was sought to be erected in . a residential district. The Court held:

1. The motion of the Council to refuse the permit was advisory only, and of no legal effect.

2. The constitutionality of the Zoning Ordinance is attacked by Erdman. The question of the constitutionality of Zoning Ordinances of the character of the one in question is pending before the Supreme court in several cases, and constitutionality of such ordinances is not discussed.

3. The action in refusing the permit was arbitrary, and an unreasonable interference with the property rights of Erdman.

4. Erdman is entitled to the relief prayed for and a mandatory writ may issue.