Cincinnati Entertainment Associates, Ltd. v. Board of Commissioners of Hamilton County, Ohio, Robert Bedinghaus, John Dowlin and Tom Neyer

• Decision Date: 09 March 2001
• Docket Number: 01-LW-1427,C-000698
• Parties: CINCINNATI ENTERTAINMENT ASSOCIATES, LTD., Plaintiff-Appellee v. BOARD OF COMMISSIONERS OF HAMILTON COUNTY, OHIO, ROBERT BEDINGHAUS, JOHN DOWLIN and TOM NEYER, JR., Defendants-Appellants APPEAL
• Court: Ohio Court of Appeals

CINCINNATI ENTERTAINMENT ASSOCIATES, LTD. Plaintiff-Appellee v. BOARD OF COMMISSIONERS OF HAMILTON COUNTY, OHIO ROBERT BEDINGHAUS, JOHN DOWLIN and TOM NEYER, JR. Defendants-Appellants

No. C-000698

01-LW-1427 (1st)

Court of Appeals of Ohio, First District Hamilton

March 9, 2001

TRIAL NO. A-0004587

Taft, Stettinius & Hollister, L. Clifford Craig and Ross A. Wright, for Appellee

Michael K. Allen, Hamilton County Prosecuting Attorney, Carl J. Stich Jr., and Christian J. Schaefer, Assistant Prosecuting Attorneys, for Appellants.

OPINION

Painter Presiding Judge.

For the new Great American Ballpark on the Cincinnati riverfront, Hamilton County destroyed parking and access to the Firstar Center. Firstar's owners sued to force the county to file an appropriation action, so that the value of the taken property interests could be determined. The trial court ordered the county to file a claim for an appropriation, and the county has appealed. The trial court was correct, and we affirm the order requiring the county to file an appropriation lawsuit. When the government takes private property, it must pay for it.

I. A Long History

In 1974, two professional sports teams, the Cincinnati Reds and the Cincinnati Bengals, cooperated and co-existed in one public stadium, then named Riverfront Stadium and later renamed Cinergy Field. At the time, politicians deemed it unwise to invest tax dollars in a second theater for public entertainment. So, to accommodate alternative attractions and reinvigorate the riverfront area, Cincinnati sought and ultimately consummated a variety of interdependent contracts and grants to facilitate private investment. The result was the construction and operation of Riverfront Coliseum, later renamed the Firstar Center, which still operates exclusively on private funds, despite changes in ownership. Cincinnati Entertainment Associates ("CEA"), plaintiff-appellee, owns the Firstar Center and is the successor to the interrelated contracts and reciprocal grants with Cincinnati that enabled a public stadium and a private coliseum to co-exist.

Twenty-six years after the first contracts created a unique symbiosis of public and private interests on the Cincinnati riverfront, then Hamilton County Commissioners Robert Bedinghaus, John Dowlin, and Tom Neyer, Jr., defendants-appellants, became responsible for the city's commitments to CEA. They did so under a voter mandate to build a football-only public stadium, as well as a new and separate baseball-only public stadium, where only one dual-purpose public stadium had previously existed. Demolition and construction began despite CEA's protests that commencement of the development would violate commitments originally made by the city.

CEA was unsuccessful in obtaining an injunction to stop the commissioners from proceeding with their vision of a three-theater riverfront, and demolition ensued. CEA claimed that, as a by-product of the demolition, certain property rights that had been created during the course of its interdependent relationship with Cinergy Field were destroyed. The trial court agreed and granted CEA's petition for mandamus. The court ordered the commissioners to begin appropriation proceedings that would determine appropriate compensation for the property rights taken by the county.

The commissioners now appeal the trial court's peremptory writ of mandamus ordering the commencement of an appropriation action for three general CEA property rights found to have been taken by the county. The interests in question are (1) CEA's use of public land for parking and staging during its events under certain agreements; (2) access to the Firstar Center through structures publicly erected and maintained under a reciprocal grant of easements; and finally (3) implied access to the Firstar Center at a specific elevation that conformed with contemporaneous requirements during the construction of the Firstar Center.

We hold that, in each of the three instances, CEA had recognizable property rights taken by the county without compensation; that the commissioners were under a clear legal duty to appropriate those rights; and that CEA had no adequate remedy at law. We therefore affirm the trial court's peremptory writ of mandamus ordering appropriation proceedings.

II. Standard of Review

CEA urges us to review the trial court's grant of peremptory mandamus according to an abuse-of-discretion standard. We concede that there is authority for this position.^[1] But, in reviewing the underlying case cited to bolster this proposition, we note that the Ohio Supreme Court has held only that "a writ of mandamus may require an inferior tribunal to exercise its judgment, [but] may not control judicial discretion, even if such discretion is grossly abused."^[2]

We also note that other cases that use the abuse-of-discretion standard for appellate review of a writ of mandamus are limited to their particular circumstances. So, a common pleas court's decision to issue a writ of mandamus that ordered the city of Cleveland to make a report public was properly reviewed under an abuse-of-discretion standard.^[3] And, in a mandamus action before a referee, when a transcript was not filed with a party's objections, appellate review was limited to determining whether the trial court had abused its discretion in adopting the referee's report.^[4] Also, mandamus relief was appropriately reviewed under an abuse-of-discretion standard "in extent of disability cases."^[5]

The case before us presents a stipulated record, and the record relating to the commissioners' first two assignments of error consists of unambiguous contracts and instruments of conveyance. Their construction is a matter of law,^[6] and questions of law are reviewed by an appellate court de novo.^[7] Similarly, and even in the absence of unambiguous documents, the function of a trial court in a case tried on a stipulated record is to apply the law to the agreed facts.^[8] We will review a trial court's grant of mandamus de novo when the underlying, stipulated record presents a question of law. Otherwise, a trial court could make a blatant error of law, and the party prejudiced would have no relief from this court.

III. The Writ of Mandamus

Section 19, Article I of the Ohio Constitution states that "[p]rivate property shall ever be held inviolate, but subservient to the public welfare. [W]here private property shall be taken for public use, a compensation thereof shall first be made in money *** and such compensation shall be assessed by a jury." Accordingly, when a property owner claims that his property has been taken for public use without compensation, a mandamus action seeking to compel the appropriate public officials to initiate appropriation proceedings under R.C. Chapter 163 is proper.^[9]

According to R.C. 2731.01, "[m]andamus is a writ *** commanding the performance of an act which the law specifically enjoins as a duty resulting from an office." To be entitled to a writ of mandamus in this case, CEA must have demonstrated the following: (1) that it possessed a clear legal right to appropriation, (2) that the commissioners were under a clear legal duty to appropriate its property rights, and (3) that it had no plain and adequate remedy at law.^[10]

IV. CEA's Clear Legal Right to Appropriation

To have asserted a clear legal right to appropriation, CEA must have demonstrated that its property was taken for public use without compensation, contrary to the requirements of Section 19, Article I of the Ohio Constitution. Property includes "any estate, title, or interest in any real property."^[11] In the context of this case, a taking is the substantial or unreasonable interference with a property right.^[12] The taking may include the physical taking of real property or the deprivation of an intangible interest in the property.^[13]

In the trial court, CEA claimed that three separate property rights were adversely affected by the demolition and planned reconstruction of the riverfront: parking and staging rights on public property, access to the Firstar Center through publicly maintained structures, and access to the Firstar Center at a particular elevation. CEA did not claim direct ownership of any of the property that was destroyed in the renovation, but instead claimed ownership of an interest in the public property that was said to have arisen through lease, grant, and implication, respectively. We agree that in each instance CEA has a recognizable property interest, and we hold that in each instance CEA's property interest is best characterized as an easement. The value of an appurtenant easement is compensable in an appropriation action.^[14]

A. The Parking and Staging Rights

In 1974, Cincinnati and the Cincinnati Coliseum Company entered into an agreement that they called a lease. The parking "lease" contemplated the arrangements whereby Coliseum patrons could park in the city's stadium parking facilities on certain event days, and it also apportioned the resulting proceeds. The agreement was assignable and was to have lasted through April 30, 2007. Separately, a "supplemental land disposition agreement" granted CEA the use of an additional parking area adjacent to the stadium for temporary storage and parking, presumably to facilitate the staging of events. This agreement was subject to the "lease" agreement.

Because the original parties to the agreement called their contract a lease and referred to the parties as landlord and tenant, CEA urges us to designate its interest in parking and staging on the county's property as a leasehold estate. A leasehold estate is an interest in property that is compensable in an appropriation action.^[15] While we agree with the commissioners that the agreements...