
    STATE, ex rel. HUSTED et, Relators, v. WOODMANSEE, Commissioner of Buildings, Euclid (City) et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 25176.
    Decided October 27, 1960.
    
      
      Mr. Leo E. Rattay, for relators.
    
      Mr. John F. Ray, Jr., for respondents.
   Per Curiam.

This is an original action in mandamus.

Relators had obtained the unanimous recommendation of the Planning and Zoning Commission of the City of Euclid that a Class U-I-A use (retail gasoline or oil station) be permitted in the Class U-4 use (local retail district) on a sublot located on the northwest corner of East 200th Street and Pasnow Avenue, subject to certain changes in plans agreed to by them. The City Council, at a public hearing, rejected such change in a brief hearing mainly on the ground that such change would create a traffic congestion. The record discloses a strong inference that the hasty action was also prompted by the fact that one of the relators, The Sun Oil Company, had some years previously, forced the Council to sanction the construction of a gasoline filling station in another section of the city by court action.

The gasoline station herein proposed is on a busy thoroughfare which already has three gasoline stations on it within a radius of one-half mile.

The relators, some months after this action by Council, presented a formal application for a permit to construct the proposed gasoline filling station to the Building Commissioner, who summarily rejected the same.

We hold that the action of the City Council of Euclid was unreasonable, discriminatory, capricious and confiscatory, as applied to this particular property, having no relation to the public health, safety, morals or general welfare of the community; that its action was an abuse of discretion and constituted the taking of property without due process of law in violation of the constitutional rights of the relators; that the relators had exhausted all administrative rights given it by the ordinances of the City of Euclid in existence at the time; and that, as a consequence, relators have shown a clear legal right to the relief sought. State, ex rel. The Killeen Realty Co. et al, v. City of East Cleveland, 169 Ohio St., 375, 108 Ohio App., 99; Henle v. City of Euclid, 97 Ohio App., 258.

Writ to issue. Order see journal. Defendants except.

Hurd, P. J., Kovachy and Skeel, JJ., concur.  