DocketNumber: No. 60797.
Citation Numbers: 594 N.E.2d 116, 72 Ohio App. 3d 157
Judges: <italic>Per Curiam.</italic>
Filed Date: 1/14/1991
Status: Precedential
Modified Date: 1/13/2023
Relator, Burger King Corporation ("Burger King"), is seeking a writ of mandamus to compel respondents, the village of Oakwood and Lila Mae Lumpkins, Helen Alexander, Edna Maresh, Corinne Curtis and Carmella Morganti, as members of the village of Oakwood Board of Zoning Appeals (collectively the "board"), to hear its appeal on the merits from the decision of the village council ("council") granting a similar use permit to a land developer. The similar use permit allowed the construction of a solid waste transfer station and recycling facility on land now owned by intervenor, Mid-American Waste Systems of Ohio, Inc. ("Mid-American"), which is adjacent to Burger King's food distribution warehouse. The board denied Burger King's appeal, stating it had no jurisdiction to review a decision of council. For the following reasons, we grant a writ of mandamus and order the board to accept jurisdiction of Burger King's appeal.
The extraordinary writ of mandamus is available only when the usual forms of procedure are incapable of affording relief.State, ex rel. Woodbury, v. Spitler (1973),
Burger King has a clear legal right to have its appeal heard on the merits and the board has a clear legal duty to hear Burger King's appeal pursuant to the Charter of the Municipality of Oakwood Village, Ohio (the "charter") and the Codified Ordinances of Oakwood. Article X, Section 10.03(C) of the charter, which specifies the jurisdiction of the board, provides in part that "[t]he Board shall hear and decide all appeals from decisions of the Building Commissioner or Inspector concerning permits and appeals from decisions of the officers enforcing zoning regulations or issuing zoning or use permits." Pursuant to Oakwood Ordinances Section 1139.04, only the Planning Commission and council may authorize similar use permits. Oakwood Ordinances Section 1143.03 provides that "[t]he Board of Zoning Appeals shall adopt such rules and regulations as may be necessary to carry into effect the powers and jurisdiction conferred upon it as follows: (a) To hear and determine appeals from decisions made by the Building and Zoning Inspector, the Planning Commission, or any administrative officer on matters relating to this Zoning Code, or amendments thereto, for relief from any * * * determination, including the refusal, granting or revocation of permits * * *." Further, provided the designated procedural rules are followed, Oakwood Ordinances Section 1143.04 states that "[a]n appeal shall be entertained by the Board of Zoning Appeals only if formal action has been taken by the Building and Zoning Inspector and the Planning Commission, or other officials with regard to an application for a building permit * * * or some similar action * * *."
The board and Mid-American contend that these charter provisions and ordinances do not give Burger King a right of appeal to the board because, according to the charter and ordinances, the board is authorized to hear appeals from decisions of only the Building and Zoning Inspector, the Planning Commission, and officers or administrative officers. The board and Mid-American argue that council is not comprised of officers of the village and therefore is not a designated body from which an appeal to the board may lie. Several charter provisions, however, belie this contention. Article III, Sections
In addition, although council is primarily a legislative body, council may act administratively when executing or administering an ordinance already in existence. See State, exrel. Srovnal, v. Linton (1976),
The board and Mid-American also contend the board cannot hear an appeal from a decision of council regarding a similar use permit because council sits as a superior tribunal of review for decisions of the board pursuant to Section 10.03(C) of the charter. Article X, Section 10.03(C) of the charter provides in relevant part that "Council by ordinance may provide for affirmance, reversal or modification by it of any decisions of the Board and a hearing by the Council before any decision becomes effective." Although council has been given this authority if it so chooses, neither the board nor Mid-American has cited any ordinances enacted by council to implement this appeal procedure. Consequently, this issue is not ripe for review and we make no determination as to its outcome. Accordingly, pursuant to Article X, Section 10.03(C) and Oakwood Ordinances Sections 1143.03 and 1143.04, the board is under a clear legal duty to hear Burger King's appeal.
Last, Burger King has established that it has no adequate remedy in the ordinary course of law. R.C. Chapter 2506 provides for an appeal to the common pleas court from decisions of administrative tribunals. R.C.
Writ granted.
FRANCIS E. SWEENEY, P.J., DYKE and NAHRA, JJ., concur.