Neithamer v. Heyer

The facts are stated in the opinion. WILLIAMS, J. This cause comes into this court on appeal. Plaintiff, Fred Neithamer, is the owner of a dwelling ho«fse and lot at 1324 Yates Street, Toledo, Ohio, and the defendant, Albert Heyer, is the owner of a newly constructed dwelling house situated on a lot adjoining that of plaintiff on the south. The defendant, The Banner Lumber Company, constructed the dwelling house of AÍ-' bert Heyer under contract, after securing a permit from the building inspector to do so. *442 Section 10 of the zoning ordinance of the city of Toledo, passed September 10th, 1923, (provides that where a building is erected upon a lot which is less than forty- feet in width, a side yard shall be left on each side of the building not leás than three feet in width. This court finds from the evidence that a permit was given to build a house of the width of' twenty-four feet on the lot of' the defendant, Heyer, allowing for side yards three feet in width; that the defendants constructed a building with a bay wirjdow on the northerly side next to the property of the plaintiff which extended eighteen inches into Heyer’s three-foot side yard and a gable roof that extended to the line between the two properties, and that the plaintiff promptly and persistently protested to the defendants and the building commissioners of the city of Toledo against the construction of any part Of said building or bay window upon the three-foot side yard. It appears, therefore, that the plaintiff is entitled to a mandatory injunction to compel the removal of ithe. -whole of the bay window and gable roof over it. It is claimed, however, that an appeal . was taken to the board of zoning appeals and that the action of that board allowed ,‘a side yard of 2.85 feet and, in accordance ■’with, paragraph 6, Section 17, of the zon'ing ordinance, approved the request of the applicant. The request w,as for a variation of the application of the zoning ordinance ’toy premitting the construction of a “bay In side yard”. This appeal was taken after the bay window had been constructed. Paragraph 6 of Section 17 reads as follows: “Where there are practical difficulties , , or unnecessary hardships in the way of carrying out the strict letter of the provisions of this ordinance, the board of zoning appeeals shall have the power in a specific case to vary any such pro- , vision in harmony with its general purpose, and intent so that the public ..-health, safety and general welfare may be secured and substantial justice done.” In our judgment the action of the board in grantihg the application, so far as it related to the bay window, was an abuse of discretion. A mandatory injunction should therefore be granted and a decree entered ih favor of the plaintiff substantially as in the court of common pleas. Lloyd and Richards, JJ, concur.