Opinion
Decided January 5, 1931.
Municipal corporations — Zoning ordinance — Bay window erected within three-foot side yard — Mandatory injunction, by adjoining owner, to compel removal — Building commissioner abused discretion by granting application for variation of zoning ordinance.
1. Plaintiff held entitled to mandatory injunction to compel defendant adjoining owner to remove bay window projecting into defendant's three-foot side yard.
2. Granting application for variation of zoning ordinance to permit construction of bay window within three-foot side yard held abuse of discretion.
APPEAL: Court of Appeals for Lucas county.
Messrs. Garrison Phillips, for plaintiff.
Mr. Alonzo G. Duer, for defendants.
This cause comes into this court on appeal. Plaintiff, Fred Neithamer, is the owner of a dwelling house and lot at 1324 Yates street, Toledo, Ohio, and the defendant Albert Heyer is the owner of a newly constructed dwelling house situated on a lot adjoining that of plaintiff on the south. The defendant Banner Lumber Company constructed the dwelling house of Albert Heyer under contract, after securing a permit from the building inspector to do so.
Section 10 of the zoning ordinance of the city of Toledo, passed September 10, 1923, provides that where a building is erected upon a lot which is less than forty feet in width, a side yard shall be left on each side of the building not less than three feet in width.
This court finds from the evidence that a permit was given to build a house of the width of twenty-four feet on the lot of the defendant Heyer, allowing for side yards three feet in width; that the defendants constructed a building with a bay window on the northerly side, next to the property of the plaintiff, which extended eighteen inches into Heyer's three-foot side yard, and with a gable roof that extended to the line between the two properties; and that the plaintiff promptly and persistently protested to the defendants and the building commissioners of the city of Toledo against the construction of any part of said building or bay window upon the three-foot side yard. It appears, therefore, that the plaintiff is entitled to a mandatory injunction to compel the removal of the whole of the bay window and gable roof over it.
It is claimed, however, that an appeal was taken to the board of zoning appeals, and that the action of that board allowed a side yard of 2.85 feet, and in accordance with paragraph 6, Section 17, of the zoning ordinance, approved the request of the applicant. The request was for a variation of the application of the zoning ordinance by permitting the construction of a "bay in side yard." This appeal was taken after the bay window had been constructed. Paragraph 6 of Section 17 reads: "Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this ordinance, the board of zoning appeals shall have the power in a specific case to vary any such provision in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secured and substantial justice done."
In our judgment the action of the board in granting the application, so far as it related to the bay window, was an abuse of discretion.
A mandatory injunction should therefore be granted and a decree entered in favor of the plaintiff substantially as entered in the court of common pleas.
Injunction allowed.
LLOYD and RICHARDS, JJ., concur.