
    No. 717
    STATE ex v. HAUSER
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2471.
    Decided April 6, 1925
    1871. BUILDINGS —1. Motion of city council to building commissioner, to refuse building permit until zoning ordinance was acted upon by it, is of no legal effect, being advisory only.
    2.Refusal to issue permit under circumstances was arbitrary and unreasonable interference with property rights.
    Attorneys—Bolsinger & Kuhn, and L. M. Levinson for State ex; L. L. Forchheimer for Hauser; Alfred Bettman for Planning Committee; all of Cincinnati.
   HAMILTON, J.

The State, in the relation of Arthur Erdman, brought this original suit in mandamus in the Court of Appeals, and Erdman prayed that a writ issue to George Hauser as building Commissioner of Cincinnati, directing him to issue to Erdman a building permit for the erection of a business structure in accordance with plans and specifications on file with said commissioner.

Hauser’s defense was that the city council, by motion directed him to refuse the permit until action by it on the Zoning Ordinance, then pending, and he further averred that the Zoning Ordinance was passed placing the property, on which the building in question was sought to be erected in . a residential district. The Court held:

1. The motion of the Council to refuse the permit was advisory only, and of no legal effect.

2. The constitutionality of the Zoning Ordinance is attacked by Erdman. The question of the constitutionality of Zoning Ordinances of the character of the one in question is pending before the Supreme court in several cases, and constitutionality of such ordinances is not discussed.

3. The action in refusing the permit was arbitrary, and an unreasonable interference with the property rights of Erdman.

4. Erdman is entitled to the relief prayed for and a mandatory writ may issue.  