State, ex rel. Partis, v. Warren City Bd. of Health - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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The State, ex rel. Partis et al., Appellants, v. Warren
City Board of Health et al., Appellees.

[Cite as State, ex rel. Partis, v. Warren City Bd. of
Health (1992), Ohio St. 3d .]
Mandamus to compel city board of health to issue occupancy
permits to allow property to be rented as a triplex -- Writ denied,
when -- Failure to prove any of the criteria necessary for the issuance
of the writ.

(No. 91-987 -- Submitted March 16, 1992 -- Decided June 10,
1992.)

Appeal from the Court of Appeals for Trumbull County,
No. 90-T-4377.

In 1983, relators-appellants, Harry Partis and
Chryssanthi Partis, purchased a single-family dwelling in Warren,
Ohio, located in a "Residential A" district. Without obtaining a
use variance or building permit, they converted the property into
a triplex multi-family dwelling.

Warren City Ordinance Section 1139.01 defines
"Residental A Uses" as single-family dwellings; Section 1307.20
prohibits a more restricted use in a less restricted use area
unless a variance is granted by city council and a building
permit issued; Section 1307.19 provides that the issuance of a
variance is dependent upon approval by the board of zoning
appeals as well as by city council; and Section 1135.01 provides
that members of the city planning commission shall

constitute the board of zoning appeals.

On May 20, 1988, appellants applied for a variance to
permit a triplex multi-family dwelling on their property.
Although the Warren Planning Commission approved the variance,
the Warren City Council, on December 14, 1988, rejected it. No
appeal was filed from the decision of city council.

On March 28, 1990, appellants filed a complaint for a
writ of mandamus in the court of appeals to compel the Warren
City Board of Health and other city officials to issue occupancy
permits to allow the property to be rented as a triplex.
Appellants asserted that city council had delegated its authority
to the planning commission to grant, or refuse to grant, variances
and, therefore, retained no power to reject the use variance here;
that the variance approved by the planning commission was,
therefore, valid; and that the board of health and other city
officials were legally obligated to issue the occupancy permit.
The court of appeals disagreed and denied the writ.

The cause is now before this court upon an appeal as of
right.

Frank R. Bodor, for appellants.

William P. McLain, Law Director, and Richard L. James, for
appellees.

Per Curiam. The requisites for the issuance of a writ of
mandamus are well known: relator must have a clear legal

right to the relief requested; respondent must be under a clear
legal duty to perform that act; and relator must have no plain
and adequate remedy at law. State, ex rel. Westchester Estates, Inc.,
v. Bacon (1980), 61 Ohio St. 2d 42, 15 O.O. 3d 53, 399 N.E. 2d 81.

The Warren city ordinances set forth the procedures for
the issuance of a use variance. It is undisputed that the real
estate in question was located in a "Residential A" district. No
building permit for a triplex could be issued in such district
without the concomitant issuance of a variance. City council
refused to approve such variance. Without such approval,
appellants had no clear legal right to the occupancy permit and
the board of health had no legal duty to issue such permit.

Moreover, R.C. 2506.01 authorizes an appeal from
"[e]very final order * * * of any * * * board, bureau, commission
* * * or other division of any political subdivision of the state
* * *." Appellants failed to appeal council's December 14, 1988
rejection of the variance request. Accordingly, appellants did
not meet another essential requirement for the issuance of a writ
of mandamus--absence of an adequate legal remedy.

In State, ex rel. Sibarco Corp., v. Berea (1966), 7 Ohio St.
2d 85, 36 O.O. 2d 75, 218 N.E. 2d 428, the relator- property owner
was unsuccessful in securing an amendment to the

city zoning ordinance to allow construction of a gas station on
its property. It then applied to the building commissioner for a
building permit for the same purpose, but the application was
rejected. Relator appealed to the board of zoning appeals, which
affirmed the commission, but the property owner did not pursue
further appeal to the common pleas court under R.C. 2506.01.
Upon review, we held that relator failed to pursue an adequate
remedy at law and thus mandamus would not lie. The same is true
of appellants in the instant case.

Appellants failed to prove any of the criteria necessary
for the issuance of a writ of mandamus. Accordingly, the judgment
of the court of appeals is affirmed.

Judgment affirmed.

Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick,
JJ., concur.

Moyer, C.J., not participating.