Chapel v. City of Solon

Douglas, J. Appellant contends that it has a clear legal right to site approval and a building permit because churches are permissible in the requested area. It contends that appellees have a legal duty to issue both. We disagree. To entitle a relator to a writ of mandamus, it must be shown “ ‘(1) that he has a clear legal right to the relief prayed for, (2) that respondents are under a clear legal duty to perform the acts, and (3) that relator has no plain and adequate remedy in the ordinary course of the law.’ ” State, ex rel. Berger, v. McMonagle (1983), 6 Ohio St. 3d 28, 29, 6 OBR 50, 51, 451 N.E. 2d 225, 226. A writ of mandamus must not issue when there is a plain and adequate remedy at law. State, ex rel. Middletown Bd. of Edn., v. Butler Cty. Budget Comm. (1987), 31 Ohio St. 3d 251, 31 OBR 455, 510 N.E. 2d 383. Appellant has a clear remedy at law because the denial of a building permit by an official should be appealed to the court of common pleas under R.C. Chapter 2506. State, ex rel. Federal Homes Properties, Inc., v. Singer (1967), 9 Ohio St. 2d 95, 38 O.O. 2d 227, 223 N.E. 2d 824. The proper procedure to test an official’s refusal to issue a building permit is by way of appeal to the court of common pleas after all administrative remedies of appeal, if any, are exhausted. R.C. 2506.01. Additionally, appellant does not have a clear legal right to a building permit since it failed to follow Solon’s procedures for procuring such a permit, which procedures are codified in Solon Building Code Sections 1303.03 and 1305.01 and Chapter 1307. Appellant disagrees and cites State, ex rel. Killeen Realty Co., v. East Cleveland (1959), 169 Ohio St. 375, 8 O.O. 2d 409, 160 N.E. 2d 1, which found that in a proper case, a writ of mandamus may be issued to compel the granting of a building permit denied by the local authorities. However, Killeen is factually inapposite to this case. In Killeen, a writ of mandamus was issued to compel a city official to rezone and issue a building permit for property which was an isolated parcel of land surrounded on three sides by land zoned for less restricted uses and which would be in harmony with the needs and nature of the community. In the case before us, zoning is not an issue. A church is a permitted use in the zoning district in which the property is located. However, absent construction of the church, The Chapel’s accessory buildings, which are to be built first, are not allowed uses. In addition, The Chapel did not attempt to resolve problems with soil erosion, drainage and traffic enumerated by [5] the planning commission. Given a resolution of the problems concerning land use and the sequence of construction, plan approval and a building permit could issue. Based on these distinctions, Killeen does not apply here. Since appellant does not have a clear legal right to site plan approval or a building permit, it follows that appellees do not have a clear legal duty to issue same. Furthermore, appellant has an adequate remedy at law. Therefore, the writ of mandamus will not issue. Accordingly, the judgment of the court of appeals is affirmed. Judgment affirmed. Moyer, C.J., Sweeney, Holmes and H. Brown, JJ., concur. Locher and Wright, JJ., dissent.