[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 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-7663

THE 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. 

_____________________ 

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 historicdesignation 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 historicdesignation 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 
January Term, 2016 

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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. 
January Term, 2016 

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Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur. 

_________________ 

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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