Court Refuses to Consider Demolition Permit for Historic Cincinnati Record Company
The Ohio Supreme Court today denied a Cincinnati company’s request for a city permit to demolish the King Records building, which was recently designated as a historic landmark.
Dynamic Industries, Inc., an owner of the King Records property in the Evanston area of Cincinnati, sought a writ of mandamus from the First District Court of Appeals for a permit allowing it to demolish the building. The First District dismissed the case and the Supreme Court affirmed the dismissal. In a unanimous per curiam opinion, the Court ruled the company has to complete the city’s administrative permitting process before seeking court orders to compel action.
Music Organizations Mobilize to Save Site
Dynamic claimed the building is dilapidated and unsalvageable and that renovation is not economically viable. Reacting to that assessment, the Bootsy Collins Foundation and the Cincinnati USA Music Heritage Foundation filed an application with the city in May 2015 to have the building designated a historic landmark, noting that it played a significant role in the evolution of popular music. A month later, Dynamic filed for a demolition permit.
The city did not process Dynamic’s permit application because its earlier historic-designation application was still pending. The city cited its zoning code, which does not allow demolition of a structure with historic significance while a historic-designation application is pending.
Company Seeks Permit in Appeals Court
Dynamic filed a petition for a writ with the First District to compel the city to issue a demolition permit and for other related relief. After Dynamic filed its complaint, Cincinnati approved the historic designation. Because King Records was declared a historic landmark, the city required Dynamic to obtain a certificate of appropriateness to demolish or alter a historic structure.
Dynamic did not apply for the certificate of appropriateness and the city asked the First District to dismiss the case, which the appellate court did. Dynamic appealed to the Supreme Court, making six claims including a request for an injunction to prohibit the city from interfering with its right to demolish King Records, and a declaration that city zoning codes are invalid on constitutional grounds.
Court Cites Administrative Remedies Available to Dynamic
Dynamic asked the Court to order the city to compensate it, alleging the landmark designation is an unconstitutional taking of its property. Citing the U.S. Supreme Court’s 2001 Palazzo v. Rhode Island decision, the Ohio Supreme Court ruled that Dynamic must wait for a final administrative decision before asserting the government wrongfully took its property. A landowner cannot claim a taking until 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,” the Court explained citing Palazzo.
“As (Dynamic) 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,” the opinion stated.
Dynamic cannot make a taking claim until it files for a certification and gives the city an opportunity to grant or deny it, the Court ruled. The Court applied the same reasoning to Dynamic’s request for a demolition permit. Because the company has not applied for the certificate, it has not allowed the city to make its final decision on the demolition permit, and the Court concluded the company has no right to request the Court to order the permit until it exhausts appeal options with the city.
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