Building permits — Application for, refused — Zoning ordinance restrictions — Remedies — Applicant's failure to exhaust administrative remedies — Mandamus not available, when.
Per Curiam.
Section 2731.01, Revised Code, provides that mandamus is a writ issued to command the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station, and relator is asking the court for such a writ to compel respondents to issue to relator a building and use permit, and at the same time claims that the zoning resolution enjoining the duty is unconstitutional. Relator did not appeal to the Board of Zoning Appeals from the decision of the zoning inspector refusing the permit.
"An applicant for a building permit, whose application is refused because of the provisions of a zoning ordinance, cannot secure a writ of mandamus, compelling the issuance of such permit on the ground that the ordinance as a whole is unconstitutional, without first exhausting administrative remedies provided by such ordinance if such administrative remedies might enable such applicant to secure the permit." State, ex rel. Lieux, v. Village of Westlake, 154 Ohio St. 412, 96 N.E.2d 414.
The record fails to disclose a refusal to perform an act specially enjoined upon respondents as a duty resulting from an office, trust or station. On relator's application for a permit, the zoning inspector did render a decision refusing to issue it. No further duty remained to be done by him. There is no duty enjoined by law upon the respondent township trustees to issue zoning permits, and relator makes no such claim.
"To entitle a relator to a writ of mandamus the evidence must show a refusal to perform an act which the law specially enjoins as a duty resulting from an office, trust or station." State, ex rel. Vaad Hachinuch Hacharedi, v. Baxter et al., Cleveland Heights City Planning and Zoning Commission, 148 Ohio St. 221, 74 N.E.2d 242.
Relator has not made out a case warranting the issuance of a writ of mandamus. The judgment of the Court of Appeals denying the writ is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS, BELL and HERBERT, JJ., concur.
TAFT, J., not participating.