State ex rel. Dynamic Industries, Inc. v. Cincinnati (Slip Opinion) , 147 Ohio St. 3d 422 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Dynamic Industries, Inc. v. Cincinnati, Slip Opinion No. 2016-Ohio-7663.]
NOTICE
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promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2016-OHIO-7663THE STATE EX REL. DYNAMIC INDUSTRIES, INC., APPELLANT, v. THE CITY OF
CINCINNATI ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Dynamic Industries, Inc. v. Cincinnati,
Slip Opinion No. 2016-Ohio-7663.]
Mandamus—Court of appeals lacked jurisdiction over appellant’s claims in
declaratory and injunctive relief and for money damages—Appellant’s
takings and general mandamus claims are unripe and unavailing for failure
to exhaust administrative remedies—Court of appeals’ judgment dismissing
petition affirmed.
(No. 2016-0231—Submitted August 30, 2016—Decided November 10, 2016.)
APPEAL from the Court of Appeals for Hamilton County, No. C-150563.
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Per Curiam.
{¶ 1} We affirm the First District Court of Appeals’ dismissal of the petition
for a writ of mandamus filed by appellant, Dynamic Industries, Inc. (“DI”), to
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compel appellees, the city of Cincinnati, the manager of the city’s department of
planning and buildings, and the head of that department’s historic-conservation
office (collectively, the “city”) to issue a demolition permit.
{¶ 2} Because the court of appeals correctly dismissed the action, we affirm
the court’s judgment.
Facts and Procedural History
{¶ 3} The building at issue is located in Cincinnati on real property owned
by DI. DI claims that the building is dilapidated and unsalvageable and that
renovation is not economically viable. On May 15, 2015, the Bootsy Collins
Foundation and the Cincinnati USA Music Heritage Foundation filed an application
to have the building designated a historic landmark on the grounds that it formerly
housed King Records, which, according to the organizations, played a significant
role in the 20th-century evolution of popular music. On June 25, 2015, DI filed an
application seeking a permit to demolish the building.
{¶ 4} The city did not process DI’s application or issue a permit, because
the earlier-filed historic-designation application was still pending. The city’s
refusal was based on its historic-preservation code, which states that no structure
with historic significance may be demolished during the pendency of a historic-
designation application. See Cincinnati Zoning Code 1435-07-2-A; see also id.1435-01-H3 (defining “historic significance”).
{¶ 5} Because it could not obtain the demolition permit, DI filed in the court
of appeals an original action in mandamus, seeking a peremptory writ compelling
appellees to immediately issue its requested permit and related relief. After the
complaint was filed, the city passed an ordinance approving the historic-
designation application. Because the former King Records building is now a
historic landmark, DI may not receive a demolition permit unless it first obtains a
certificate of appropriateness, a certificate that allows demolition or alteration of a
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January Term, 2016
historic landmark. See Cincinnati Zoning Code 1435-09. DI does not dispute that
it has not applied for a certificate of appropriateness.
{¶ 6} Appellees filed a motion to dismiss DI’s complaint. The court of
appeals issued a four-sentence entry granting appellees’ motion, and DI appealed.
Analysis
{¶ 7} We review a judgment of the court of appeals in an original
mandamus action filed in that court “as if the action had been filed originally in the
Supreme Court.” State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141, 164,
228 N.E.2d 631 (1967).
{¶ 8} DI’s complaint asserts six claims for relief. We address the first claim
last, for ease of discussion.
{¶ 9} DI’s second, third, and fourth claims seek, respectively, an injunction
prohibiting appellees from interfering with DI’s asserted right to demolish the
building at issue, money damages that DI has allegedly incurred due to appellees’
failure to issue the requested permit, and a declaratory judgment invalidating the
applicable zoning-code provisions on various constitutional grounds. The court of
appeals lacked jurisdiction to consider these claims. See State ex rel. Williams v.
Trim, 145 Ohio St.3d 204, 2015-Ohio-3372, 48 N.E.3d 501, ¶ 12 (“A court of
appeals lacks original jurisdiction to grant prohibitory injunctions”), citing State ex
rel. Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 248, 673 N.E.2d
1281 (1997), and Pressley at paragraph four of the syllabus; State ex rel. Levin v.
Schremp, 73 Ohio St.3d 733, 735, 654 N.E.2d 1258 (1995) (“mandamus may not
ordinarily be employed as a substitute for an action at law to recover money”),
citing Maloney v. Sacks, 173 Ohio St. 237, 238, 181 N.E.2d 268 (1962); State ex
rel. Ebbing v. Ricketts, 133 Ohio St.3d 339, 2012-Ohio-4699, 978 N.E.2d 188, ¶ 22
(“ ‘[C]ourts of appeals lack original jurisdiction over claims for declaratory
judgment’ ”), quoting State ex rel. Shimko v. McMonagle, 92 Ohio St.3d 426, 430,
751 N.E.2d 472 (2001).
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{¶ 10} In the fifth claim asserted in its complaint, DI requests that the city
be compelled to compensate it for an alleged unconstitutional taking of its property.
However, a party must wait for a final administrative decision before asserting a
takings claim. Palazzolo v. Rhode Island, 533 U.S. 606, 620-621, 121 S.Ct. 2448,
150 L.Ed.2d 592 (2001) (a landowner cannot establish a taking before regulatory
authorities have had the opportunity “to exercise their full discretion in considering
development plans for the property, including the opportunity to grant any
variances or waivers allowed by law”). As DI has not applied for a certificate of
appropriateness, it has not exhausted its administrative remedies and the city has
not had the opportunity to grant or deny the certificate. Until these events occur,
DI’s takings claim is unripe and must be dismissed.
{¶ 11} Finally, DI’s first claim requests a writ of mandamus compelling
appellees to issue the requested demolition permit. To be entitled to extraordinary
relief in mandamus, DI must establish a clear legal right to the requested relief, a
clear legal duty on the part of appellees to provide it, and the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth, 131 Ohio
St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6.
{¶ 12} As explained above, DI has not exhausted its administrative
remedies in that it has not applied for a certificate of appropriateness, which would
allow the city to make a final decision on DI’s application for a demolition permit.
Therefore, the city has no clear legal duty to grant the requested relief and DI has
no clear legal right to that relief. State ex rel. Schindel v. Rowe, 25 Ohio St.2d 47,
48, 266 N.E.2d 569 (1971).
Conclusion
{¶ 13} The court of appeals lacked jurisdiction over Dynamic Industries’
claims in declaratory and injunctive relief and for money damages. And because
DI has failed to exhaust its administrative remedies before asserting its takings and
general mandamus claims, these claims are unripe and unavailing, respectively.
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January Term, 2016
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
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Sebaly, Shillito & Dyer, L.P.A., Toby K. Henderson, and Matthew G.
Bruce, for appellant.
Paula Boggs Muething, Cincinnati City Solicitor, Marion E. Haynes, III,
Chief Counsel, Terrance A. Nestor, Deputy City Solicitor, and Emily E. Woerner,
Assistant City Solicitor, for appellees.
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