66 N.E.3d 734 (Ohio 2016), 2016-0231, State ex rel. Dynamic Industries, Inc. v. City of Cincinnati

Docket Nº2016-0231
Citation66 N.E.3d 734, 147 Ohio St.3d 422, 2016-Ohio-7663
Opinion JudgePER CURIAM.
Party NameTHE STATE EX REL. DYNAMIC INDUSTRIES, INC., APPELLANT, v. THE CITY OF CINCINNATI ET AL., APPELLEES
AttorneySebaly, 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.
Judge PanelO'CONNOR, C.J., and PFEIFER, O'DONNELL, LANZINGER, KENNEDY, FRENCH, and O'NEILL, JJ., concur. O'Connor, C.J., and Pfeifer, O'Donnell, Lanzinger, Kennedy, French, and O'Neill, JJ., concur.
Case DateNovember 10, 2016
CourtSupreme Court of Ohio

Page 734

66 N.E.3d 734 (Ohio 2016)

147 Ohio St.3d 422, 2016-Ohio-7663

THE STATE EX REL. DYNAMIC INDUSTRIES, INC., APPELLANT,

v.

THE CITY OF CINCINNATI ET AL., APPELLEES

No. 2016-0231

Supreme Court of Ohio

November 10, 2016

Submitted August 30, 2016

THIS SLIP OPINION IS SUBJECT TO FORMAL REVISION BEFORE IT IS PUBLISHED IN AN ADVANCE SHEET OF THE OHIO OFFICIAL REPORTS.

APPEAL from the Court of Appeals for Hamilton County, No. C-150563.

Judgment affirmed.

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.

O'CONNOR, C.J., and PFEIFER, O'DONNELL, LANZINGER, KENNEDY, FRENCH, and O'NEILL, JJ., concur.

OPINION

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 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 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...

To continue reading

Request your trial