Richard Duncan v. City of Mentor, Ohio

INTRODUCTION Richard Duncan owns a 3-acre parcel in the City of Mentor, Ohio, where he proposed a houseboat to be placed on the pond which covers a large part of the area. A building permit and variances were denied by the City, so he filed an original writ of mandamus action claiming a taking of his property in the Ohio Appeals court. In addition to the Federal 5th amendment action he asserted Ohio’s Article I Section 19 taking clause. After a motion to dismiss was granted, the Ohio Supreme Court affirmed, ruling that Duncan failed to exhaust his administrative remedy under ORC 2506. The justification set forth was that “If the court of common pleas had reversed the denial of permit, “no taking would have occurred”. I. Whether the Ohio Supreme Courts newly established exhaustion of administrative remedy and ruling that “if the court of common pleas had reversed the denial of the permit no taking would have occurred” directly conflicts with the relevant decision(s) of this Court in First English Lutheran Church v. Los Angeles 482 U.S. 304, where this Court ha.s mandated just compensation for temporary takings? II. Whether the Ohio Supreme Courts ruling establishing a new exhaustion of administrative remedy and its justification thereof, is erroneous because it conflicts with the case of Negin v. City of Mentor 601 F. Supp 1502 which ruled “Section 2506.01 does not empower state courts to award damages for injuries suffered as a result of erroneous administrative decisions”;