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Captain America Filming Shielded from Takings Claim

Image of Marvel Comic cartoon hero Captain America's shield

City does not owe parking lot owners for lost revenue due to movie scene shooting. (Photo by Doug Kline is licensed under CC BY 2.0)

Image of Marvel Comic cartoon hero Captain America's shield

City does not owe parking lot owners for lost revenue due to movie scene shooting. (Photo by Doug Kline is licensed under CC BY 2.0)

Reduced access to a downtown Cleveland public parking lot during a 16-day road closure for the filming of a superhero movie did not constitute a “compensable taking” under the Ohio Constitution, the Ohio Supreme Court ruled today.

Reversing a decision of the Eighth District Court of Appeals, the Supreme Court overturned a writ of mandamus granted to compel the city of Cleveland to compensate the parking lot owner, Cuyahoga Lakefront Land LLC, for lost revenue. A portion of West Third Street in downtown Cleveland was closed by the city in June 2013 for Vita-Ray Productions’ filming of the movie “Captain America: The Winter Soldier.”

Company Claims Closure Was a Taking
Lakefront Land argued that the temporary street closure caused a taking of its property without proper compensation, which it claimed was in violation of Article I, Section 19 of the Ohio Constitution.

The Court noted that access to Lakefront Land’s public parking lot was not completely cut off during the road closure and filming. Rather, one entrance to the lot, commonly known as the Pit, was closed, while another entrance remained open. The property owners also installed signage directing parking patrons to the alternate entrance.

In a per curiam opinion, the majority reversed the appellate court’s decision. In its opinion, the Court said the temporary loss of access to West Third Street did not create a compensable taking of Lakefront Land’s property under Ohio law.

Acknowledging that a writ of mandamus was the proper remedy in a case about the “takings” clause of the Ohio Constitution, the Court, citing its 2012 opinion in State ex rel. Waters v. Spaeth, also stated the property owner needed to show it was “entitled to the writ by clear and convincing evidence.” Lakefront Land, it noted, “failed to show that the temporary loss of access to one of the two entrances to the Pit was an unconstitutional taking of its property, and no writ should issue.”

In its brief, Lakefront Land focused on Ohio law, but also invoked, in passing, the takings clause of the Fifth Amendment of the U.S. Constitution. It offered no separate takings argument under federal law, the Court wrote, and the appellate court did not consider that argument, either. Consequently, the Supreme Court declined to perform a federal constitutional analysis and focused on whether there was a compensable taking only under Ohio law.

Loss of Revenue Claimed
Lakefront Land asserted that the loss of access to its lot via West Third Street greatly impaired both its business and property rights. With the help of a financial expert witness, the lot owner determined its revenue loss totaled $61,399, even though the film production company contracted with Lakefront Land to pay for 325 spaces in the lot for two days during the closure at a rate higher than the rate used to determine its claimed revenue loss.

The case was filed by Lakefront Land as an original action in the Eighth District appellate court and the city appealed the case to the Supreme Court.

Additionally, Lakefront Land filed two suits in the Cuyahoga County Court of Common Pleas against the city and the movie production company during the road closure, but voluntarily withdrew them after reaching a monetary settlement with the production company. It then filed suit in federal court, which ruled by summary judgment for the city.

Short Duration of Road Closure Key in Decision
The Court explained that Lakefront Land correctly asserted that “access to public roadway abutting a property is an elemental right of real property ownership,” as the Court ruled in State ex rel. OTR v. Columbus. That 1996 opinion stated a property owner has a right to compensation if the property’s abutting easement to a public street is “substantially, materially, or unreasonably interfered with by the government,” even when there is other access to the land.

The Court’s opinion also cited its State ex rel. Merritt v. Lindell 1955 ruling that a circuitous route of travel to and from a property does not result in a “legal impairment” of ingress and egress, but rather is an “inconvenience” to the general public.

This case, the Court described, is a “hybrid” of the facts of both OTR and Merritt. But it also noted it is distinct from both cases in that the restricted access to the Lakefront Land’s parking lot was temporary – only 16 days. Further, the opinion indicated that Ohio courts have held that temporary interference of property access during highway construction or maintenance “does not rise to the level of a compensable taking.”

The Supreme Court also rejected Lakefront Land’s claim that its due-process rights were violated and pointed out that no proper legal arguments were offered in this case. Likewise, the Eighth District did not address due process, however, the Court did not address it either.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith Ann Lanzinger, Sharon L. Kennedy, Judith L. French, and William M. O’Neill joined the majority opinion.

Justice Paul E. Pfeiffer dissented stating he would have affirmed the Eighth District’s decision.

2015-0839. State ex rel. Cuyahoga Lakefront Lane, L.L.C. v. City of Cleveland, Slip Opinion No. 2016-Ohio-7640.

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