[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Cuyahoga Lakefront, L.L.C. v. Cleveland, Slip Opinion No. 2016-Ohio-7640.] 

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-7640

THE STATE EX REL. CUYAHOGA LAKEFRONT LAND, L.L.C., APPELLEE, v. THE 

CITY OF CLEVELAND, APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Cuyahoga Lakefront, L.L.C. v. Cleveland, Slip 

Opinion No. 2016-Ohio-7640.] 

Takings—Mandamus—Ohio Constitution, Article I, Section 19—Sixteen-day street 

closure that blocked access to one of parking lot’s two entrances was not a 

compensable taking under the Ohio Constitution—Judgment issuing writ of 

mandamus reversed. 

(No. 2015-0839—Submitted July 12, 2016—Decided November 8, 2016.) 

APPEAL from the Court of Appeals for Cuyahoga County, No. 101438,

2015-Ohio-1637. 

_____________________ 

Per Curiam.

{¶ 1} We reverse the judgment of the Eighth District Court of Appeals, 

which granted a writ of mandamus compelling appellant, the city of Cleveland, to 
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commence an appropriation action. This case arose after Cleveland granted a 

permit to a production company to close a portion of West Third Street in 

downtown Cleveland for 16 consecutive days so that the company could film 

scenes for a movie. Appellee, Cuyahoga Lakefront Land, L.L.C. (“Lakefront”), 

owns a parking lot, and the closure of West Third Street cut off access to one of the 

lot’s two entrances during the permit period. Lakefront asserts that the temporary 

closure of the street caused a taking of its property without just compensation in 

violation of Article I, Section 19 of the Ohio Constitution. 

{¶ 2} However, Lakefront’s access to West Third Street was not 

“substantially, materially or unreasonably interfered with” by the city of Cleveland 

under the analysis articulated in State ex rel. OTR v. Columbus, 76 Ohio St.3d 203, 

208, 667 N.E.2d 8 (1996). Therefore, under Ohio law, no compensable taking 

occurred. 

{¶ 3} Lakefront’s complaint and the arguments in its brief focus primarily 

on Ohio law. However, Lakefront invokes the Takings Clause of the Fifth 

Amendment to the United States Constitution in passing. But because Lakefront 

has not set forth a separate takings argument under federal law and the appellate 

court did not consider that argument, we decline to undertake a federal 

constitutional analysis and we limit our discussion to whether there has been a 

compensable taking under Ohio law. 

Facts 

{¶ 4} In April 2013, Vita-Ray Productions, L.L.C., applied for a permit to 

close a portion of West Third Street in downtown Cleveland for 16 days in June of 

that year to film scenes for the movie Captain America: The Winter Soldier. The 

permit was approved on May 1, 2013. Cleveland determined that the closure was 

necessary to enable the filming and that the film production would bring jobs and 

tax revenue to the city and would positively promote Cleveland to potential visitors. 
January Term, 2016 

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{¶ 5} Lakefront operates a parking lot, colloquially known as “the Pit,” that 

abuts both West Third and West Ninth Streets, with entrances on both streets. 

During the time that the permit was in effect, one of the two entrances to the Pit 

was inaccessible due to the West Third Street closure. Lakefront asserts that this 

loss of access caused a substantial impairment of its business and its property rights. 

{¶ 6} However, during the closure, Lakefront was able to continue 

operating the Pit and paying customers entered the lot through its West Ninth Street 

entrance. Signs were placed in the area, directing drivers to the alternative entrance 

to the Pit. In addition, the production company contracted with Lakefront to pay 

for 325 spaces in the lot for two days during the street closure, at a rate higher than 

the revenue per car that Lakefront’s damages expert used in his calculations of its 

claimed lost profits. 

{¶ 7} Lakefront’s expert witness nevertheless found a loss of revenue for 

June 2013, plus losses during August, September, October, November, and 

December 2013 and January 2014 that he attributed to a diminution in the Pit’s 

business because of the June 2013 closure, for a total claimed loss of revenue of 

$61,399. Lakefront’s expert witness equated this amount to lost profit. The only 

damages evidence that Lakefront presented related to lost business profits. 

{¶ 8} Lakefront engaged in multiple legal actions regarding the closure of 

West Third Street. It filed two suits in the Cuyahoga County Court of Common 

Pleas during the street closure—one, seeking a temporary restraining order, against 

the movie studios that were responsible for the Captain America production and 

one against Cleveland. Cuyahoga Lakefront Land, L.L.C. v. Vita-Ray Productions, 

L.L.C., Cuyahoga C.P. No. CV-13-808299; Cuyahoga Lakefront Land, L.L.C. v. 

Cleveland, Cuyahoga C.P. No. CV-13-808467. The docket in the first case reflects 

that Lakefront reached a monetary settlement with the movie studios; Lakefront 

then voluntarily dismissed both cases. 
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{¶ 9} Lakefront then sued Cleveland in federal district court; that court 

granted summary judgment to Cleveland. Two of the counts in the federal case—

those involving takings under Ohio and federal law—were dismissed by the court 

without prejudice because they were not ripe for review. Cuyahoga Lakefront 

Property, L.L.C. v. Cleveland, N.D.Ohio No. 1:13 CV 1319, 2014 WL 4661984, 

*3 (Sept. 17, 2014). 

{¶ 10} This case was filed as an original action in the Eighth District Court 

of Appeals, which found that Cleveland had taken Lakefront’s property without 

just compensation and which issued a writ of mandamus ordering Cleveland to 

commence appropriation proceedings. Cleveland appealed. 

Analysis 

Due process 

{¶ 11} In its brief, Lakefront argues that its substantive- and proceduraldue-process rights were violated; however, no due-process arguments are properly 

before us. Lakefront’s substantive-due-process claims are res judicata, as they were 

considered and disposed of in the federal case, Cuyahoga Lakefront, 2014 WL 

4661984, at *3. Moreover, Lakefront did not assert any substantive- or proceduraldue-process claims in its complaint, and the court of appeals did not address any in 

its opinion. We therefore cannot address them now. 

Mandamus 

{¶ 12} To be entitled to extraordinary relief in mandamus, Lakefront must 

establish a clear legal right to the requested relief, a clear legal duty on the part of 

Cleveland 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. Lakefront must prove that it is entitled to the writ by clear and 

convincing evidence. Id. at ¶ 13. 

{¶ 13} Under Ohio law, “[m]andamus is the appropriate action to compel 

public authorities to institute appropriation proceedings where an involuntary 
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5

taking of private property is alleged.” State ex rel. Doner v. Zody, 130 Ohio St.3d 

446, 2011-Ohio-6117, 958 N.E.2d 1235, ¶ 53. 

Takings law in general 

{¶ 14} As we stated in an earlier case: 

Regulatory-takings issues are complex and difficult and have defied 

attempts to provide a simple solution. Even the United States 

Supreme Court “quite simply, has been unable to develop any ‘set 

formula’ for determining when ‘justice and fairness’ require that 

economic injuries caused by public action be compensated by the 

government, rather than remain disproportionately concentrated on 

a few persons.” 

State ex rel. R.T.G., Inc. v. State, 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 

998, ¶ 1, quoting Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 

S.Ct. 2646, 57 L.Ed.2d 631 (1978). The purpose of the takings clauses in the Ohio 

and United States constitutions is “to prevent government from ‘forcing some 

people alone to bear public burdens which, in all fairness and justice, should be 

borne by the public as a whole.’ ” R.T.G. at ¶ 33, quoting Armstrong v. United 

States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). 

Public roadway access

{¶ 15} Lakefront correctly asserts that access to a public roadway abutting 

a property is an elemental right of real property ownership, OTR, 76 Ohio St.3d at 

207, 667 N.E.2d 8. In OTR, the city of Columbus elevated the roadway along the 

entire frontage of the relator’s property, permanently removing all access from the 

property to the road and requiring the property to be accessed via secondary roads. 

This court held that an owner of real property has an easement to the public street 

on which the owner’s property abuts and if that easement is substantially, 
SUPREME COURT OF OHIO

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materially, or unreasonably interfered with by the government, even if there is 

another access point to the land, the owner has a right to just compensation. Id. at 

208. 

{¶ 16} On the other hand, we have also recognized that 

[m]ere circuity of travel, necessarily and newly created, to and from 

real property does not of itself result in legal impairment of the right 

of ingress and egress to and from such property, where any resulting 

interference is but an inconvenience shared in common with the 

general public and is necessary in the public interest to make travel 

safer and more efficient. 

State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 102, 126 N.E.2d 53 (1955). In 

Merritt, the relators owned a tract of land with a service station, store, and restaurant 

along U.S. Highway 50 in Athens County. The state rerouted Highway 50 away 

from the relators’ property, onto a newly built section of road. The old road 

remained intact, but it was no longer a part of Highway 50, meaning that the volume 

of traffic driving past the relators’ businesses was greatly reduced and customers 

had to take a more circuitous route to reach the businesses from Highway 50. 

{¶ 17} The facts in this case are a hybrid of those in OTR and those in 

Merritt. Access to an abutting roadway was cut off, as in OTR, but, as in Merritt, 

it resulted in “mere circuitry of travel,” id., an inconvenience shared by the general 

public and by many other businesses. As in Merritt, the property was still 

accessible to the public but customers had to take a different route to access it. 

{¶ 18} This case is distinguishable from both OTR and Merritt, however, in 

that the restriction of access to the Pit was temporary—lasting only 16 days—rather 

than permanent. Ohio courts have held that temporary interference with access to 

property during highway construction or repair does not rise to the level of a 
January Term, 2016 

7

compensable taking. Certain v. Hurst, 4th Dist. Pickaway No. 90CA5, 1991 WL 

122850, *3 (July 3, 1991), citing Bellevue v. Stedman, 63 Ohio App. 150, 154, 25 

N.E.2d 695 (6th Dist.1939), and Colonial Furniture Co. v. Cleveland Union 

Terminal Co., 47 Ohio App. 399, 406, 191 N.E. 903 (8th Dist.1934). 

{¶ 19} Similarly, the temporary loss of Lakefront’s access to West Third 

Street for the duration of the Vita-Ray permit did not substantially, materially, or 

unreasonably interfere with Lakefront’s easement and did not create a compensable 

taking of Lakefront’s property under Ohio law. 

Conclusion 

{¶ 20} Lakefront has 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. 

Judgment reversed. 

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

O’NEILL, JJ., concur. 

PFEIFER, J., dissents and would affirm the judgment of the Eighth District 

Court of Appeals. 

_________________ 

Barbara A. Langhenry, Director of Law, and John J. Bacevice, Assistant 

Director of Law, for appellant. 

Waxman Blumenthal, L.L.C., Michael R. Blumenthal, and David B. 

Waxman, for appellee. 

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