Posted by: Patricia Salkin | September 21, 2015

OH Appeals Court Finds Pursuit of Administrative Remedy Would be a Vain or Futile Act in Regulatory Takings Case

In 2010, the United States General Services Administration (“the GSA”) solicited bids for office space to house the Cincinnati office of the United States Immigration and Customs Enforcement (“ICE”). Within the building would be four temporary holding areas for staff to question or interview detainees for no more than eight hours. Plaintiff-appellant Rural Building of Cincinnati, LLC, (“RBOC”), which owned a building in Evendale, submitted a bid for the lease and was eventually awarded the contract. One of RBOC’s competitors for the ICE lease told Evendale that ICE intended to use the building as a detention facility, and as a result RBOC alleges that when it applied to Evendale’s Building Department for a certificate of zoning approval, the building commissioner denied it on this false basis. The RBOC appealed the denial of the zoning certificate to Evendale’s Board of Zoning Appeals, which upheld the denial. After the GSA revoked the ICE lease for nonperformance and awarded the contract to another RBOC was unable to lease the building and was forced to sell it at a loss in July 2011. In February 2014, RBOC filed a complaint for a writ of mandamus in the Hamilton County Court of Common Pleas, seeking to compel Evendale to begin appropriation proceedings under R.C. Chapter 163 for a partial regulatory taking of its property. RBOC then appealed from the trial court’s judgment dismissing its complaint for a writ of mandamus.

In this case, RBOC challenged the trial court’s determination that RBOC’s failure to first exhaust its administrative remedies bars its complaint in mandamus. RBOC contended that pursuing an additional administrative appeal to Evendale’s Village Council under the Village of Evendale, Ohio Code of Ordinances 1284.06, would have been a vain or futile act because the council could not provide the relief RBOC sought. The court agreed on the basis that the Council did not have the authority to determine whether a taking had occurred or to grant a monetary award in an administrative appeal. Therefore, further action at that level could not have provided the remedy RBOC was seeking. The futility exception to the administrative remedy rule applied, since the harm that RBOC has alleged cannot be cured by any subsequent administrative action. Accordingly, the court reversed the trial court’s judgment and remanded the case for further proceedings.

Rural Building of Cincinnati v Village of Evendale, 2015 WL 1932542 (OH. App. 4/29/2015)

The opinion can be accessed at:

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