When a landowner legally challenges an agency’s use of eminent domain to appropriate property, Ohio law requires a trial court to hold a hearing to determine the agency’s right to make the appropriation, according to a recent decision by the Ohio Supreme Court. The Court held that an appeal to a higher court is not permissible until the trial court holds such a hearing and rules on the issues raised in the hearing. For landowner Diane Less, the ruling means the trial court--the Mahoning County Court of Common Pleas--must hold a hearing to determine whether Mill Creek MetroParks had the right to make the appropriation of her land and whether that appropriation is necessary.
The case is one of several lawsuits and long-running controversies over Mill Creek MetroPark’s use of eminent domain to appropriate land for a bike path. The Mahoning County disputes are one reason behind a current legislative proposal to revise Ohio’s eminent domain laws, which includes a prohibition against the use of eminent domain for recreational trails. The legislation is at a standstill, however, with many opponents lining up against the recreational trails and other provisions of the bill.
Basis for the decision
The current Mill Creek MetroParks v. Less case made its way to the Ohio Supreme Court after the Seventh District Court of Appeals reversed the Mahoning County court’s summary judgment decision that MetroParks was authorized to use eminent domain to take Less’ land. MetroParks appealed that decision to the Ohio Supreme Court. But rather than addressing the issue of authority to take the land, the high court focused on the procedures outlined in Chapter 163 of the Ohio Revised Code. The statutes “provide a uniform eminent domain procedure for all appropriations sought by public and private agencies,” including procedures for when a property owner contests an appropriation. The Court reviewed the statutory requirements in ORC 163.09, which require a trial court to hold a hearing when:
- A property owner files an answer to a petition for eminent domain that specifically denies the right to make the appropriation or the necessity for the appropriation,
- The answer alleges sufficient facts in support of the denial, and
- The appropriation is not sought in a time of war or other public exigency or not for the purpose of making or repairing roads.
When MetroParks filed the eminent domain action against Less, she did file an answer that denied the Park District’s right to make the appropriation and the necessity for the appropriation. Less also filed a motion for summary judgment, asking the court to rule in her favor and dismiss the case because there were no genuine issues of material fact in the case. The trial court denied her motion, however, and Less filed an appeal of that denial to the Seventh District Court of Appeals. The Supreme Court points out that the appeal should not have occurred, however, because the statutory procedures required the trial court to hold a hearing after it denied the summary judgment motion by Less. Nevertheless, the Seventh District ruled on the appeal, reaching a decision that agreed with Less’ argument that the Park District did not have authority to take her land.
The Supreme Court accepted the case for review, but its purpose was not to rule on the issue of whether there was authority for the use of eminent domain. Instead, the Court held that it had no jurisdiction to hear MetroPark’s appeal of the Seventh District’s decision, and that the Seventh District Appeals Court did not have jurisdiction to review the decision of the trial court. Because the trial court had failed to follow the statutory procedures for a hearing and decision on the authority and necessity of the appropriation, there was no “final appealable order” that either party could appeal to a higher court.
What happens next?
The Supreme Court vacated the decision of the Seventh District Court of Appeals and sent the case back down to the Mahoning County Court of Common Pleas. The county court must now hold a hearing to review the landowner’s arguments on the authority and necessity for the park’s appropriation. The court’s decision after that hearing will be an order that either party may choose to appeal to the Seventh District. The best answer to the question of what happens next, most likely, is that case will continue to roll on for quite some time.
An eminent domain revisions bill appears to be on hold after its removal from the committee agenda that would have provided the bill a third hearing. House Bill 64 was introduced by sponsors Rep. Darrell Kick (R-Loudonville) and Rep. Rodney Creech (R-W. Alexandria) on February 21. The bill had two hearings before the House Civil Justice Committee on March 7 and 14, but was removed from the committee’s March 21 meeting agenda.
House Bill 64 proposes quite a few major changes to Ohio eminent domain law:
- Voids an appropriation of property if the agency does not follow statutory procedures for the appropriation, such as procedures for appraisal of value, good faith offers of compensation, and negotiation with the landowner. Under the proposal, a landowner could bring a claim against the agency for violating any of these procedures and the appropriation would be invalid. The proposal is the opposite of current law, which states that procedural violations do not affect the validity of an appropriation of property.
- Increases an agency’s burden of proof in showing that a taking is for a public use and is necessary, that the agency has authority to appropriate the property, and that the parties are unable to agree on a voluntary purchase of the property. The agency would have to meet the “clear and convincing evidence” burden of proof rather than the “preponderance of evidence” standard stated in current law.
- Removes two presumptions the law currently makes in favor of an agency. The first is that an appropriation is necessary if the agency adopts a resolution or ordinance declaring its necessity and the second is that an appropriation for a public utility or common carrier is necessary upon the offering of evidence supporting the necessity. Removing these presumptions also affects the burden of proof the agency must meet regarding the necessity of a taking.
- Revises an irrebuttable presumption in current law that an appropriation is necessary if the agency is a common carrier or public utility and a state or federal regulatory authority has approved the appropriation. The proposal would allow a landowner to rebut this presumption and would limit the presumption only to the specific interests reviewed by the regulatory authority.
- Prohibits an agency from reducing or revoking the compensation made in an initial offer to a landowner or from later arguing or presenting evidence for a lower amount. Current law allows an agency to revise an offer if they discover new conditions after making an initial offer.
- Expands attorney fee, cost, and expense awards for landowners. Current law allows attorney fee and cost awards if an agency challenges a landowner’s appraisal and the final compensation awarded is less than 125% of the agency’s first offer. The bill would require reasonable attorney fees, expenses, and costs if an agency appeals and does not prevail, in whole or in part. It also removes a provision requiring a landowner to pay court costs if the landowner denies an agency’s offer and is later awarded less than the offer amount.
- Awards “coercive damages” to landowners who prove by a preponderance of evidence that an agency used coercive actions during the appropriation process. Coercive actions include, but are not limited to, advancing the time of a taking, deferring negotiations, deferring the deposit of funds with the court, and attempting to force an agreement on the compensation award.
- Provides landowners the right to an “inverse condemnation” action, which is a claim that an agency has taken property without filing a court proceeding. In that case, a landowner may file an inverse condemnation lawsuit in the court of common pleas. If the landowner proves by a preponderance of evidence that the agency has taken the property, the court can award the landowner compensation and damages for the taking as well as attorney fees, costs, and expenses. Currently, a landowner must file a “mandamus” action asking the court to order the agency to initiate an eminent domain proceeding and must offer clear and convincing evidence to the court that the agency has taken the property.
- Extends case timelines. The bill increases the minimum number of days for the court to set hearing dates. If a landowner files an answer denying an agency’s authority, the necessity of the taking, or that the parties were unable to agree, the hearing date on those issues would extend from 15 to 30 days after the answer was filed and the compensation hearing date, if the court settles in favor of the agency, would change from at least 60 to at least 90 days after the court settles the issue. If a landowner could have but failed to file an answer to an eminent domain action, the compensation hearing date would be at least 90 days rather than 20 days from the date the answer was due. If an owner appeals a court’s determination on authority, necessity, or inability to agree on an appropriation, the bill prohibits the court from setting a compensation hearing until the appeal is final.
- Removes recreational trails from eminent domain authority. The proposal states that the use of property for a recreational trail is not a valid “public use” for eminent domain purposes. Recreational trails, according to the proposal, are trails used for hiking, bicycling, horseback riding, ski touring, canoeing, or other nonmotorized forms of recreational travel. The proposal also excludes the making or repairing of or access management to shared-use paths, bike paths, or recreational trails from the use of eminent domain for making and repairing roads.
In the March 14 committee hearing, the Ohio Farm Bureau Federation testified in support of the bill. Committee members raised questions about the bill’s recreational trail prohibition, initial offer minimum, coercive action awards, and attorney fee awards. Although the committee chair suggested that a third hearing for opponent testimony would take place in the following week, the bill was later removed from that committee hearing agenda.
Litigation that arose from a drainage improvement project completed in 2002 has finally ended with a decision by the Ohio Supreme Court. The court announced today that it will not accept the case for review, which allows the ruling by the Third District Court of Appeals in favor of the Henry County Engineer to remain in place.
Richard and Rodney Rohrs sued the county engineer and several staff members in 2005 after a drainage project completed by the county flooded several acres of a farm field the Rohrs had rented from Gerald Westhoven. In the late 1990s, Westhoven approached the Henry County Engineer about flooding problems on Westhoven's farm and the possibility of cleaning out the open drainage ditch that ran between his land and the county road. The engineer proposed an alternative solution, to lay drainage tiles and fill the ditch, and offered to classify the work as a road safety improvement project to be handled through the engineer's budget rather than through the petition ditch process that would result in assessments on property owners.
The county engineer installed the new drainage system in 2002. Westhoven entered into a lease for the land with the Rohrs in the Spring of 2003. The Rohrs planted a tomato crop on the parcel; by July, part of the field was under water. After the harvest season, the county engineer and Westhoven attempted to locate a drainage tile that could be the source of the flooding but they could not find any tile in the flooded area. The county then installed a new catch basin near Westhoven's property to resolve the flooding problem, with plans to tie in any field tile that Westhoven might later discover on his land. The Rohrs continued to lease the farmland from Westhoven.
According to witness testimony, the cause of the 2003 flooding was a drainage tile and catch basin just south of Westhoven's property that had been cut off during construction of the road improvement project drainage system; the engineer's staff had filled the tile and catch basin because it did not appear to be a functioning tile and did not exist on any of the county's plans. Excavation on the Westhoven property several years later revealed a drainage tile located just 15 feet from the filled tile and catch basin. The newly discovered tile, which Westhoven had not previously reported to the engineer, had a seed bag stuffed into its outlet, which was near the filled catch basin. The Rohrs claimed that the engineer's staff had intentionally stuffed the seed bag into the functioning tile, while the engineer's staff claimed they did not know about the tile. The county surmised that the seed bag had been used in the previous filling of the tile and catch basin that they had believed to be non-functioning.
The Rohrs sought $70,000 for losses to their 2003 tomato crop as a result of the flooding. Their legal causes of action included several tort claims and violations of federal and state due process rights. They also asked the court for a writ of mandamus to order the county to compensate them for a partial "taking" of their property by the county engineer. The Henry County Court of Common Pleas, after seven years of litigation, rejected each of the Rohrs' claims.
The Rohrs appealed with no avail to the Third District Court of Appeals. The appellate court agreed with the trial court's conclusion that state law prevented tort liability for the flooding because the county was entitled to governmental immunity under Ohio Revised Code 2744.02(A)(1) i. The court stated that the Rohrs had failed to prove that any of the law's exceptions to governmental immunity applied to the situation. In response to the Rohrs' argument that the county had committed a partial "taking" of property, the appeals court agreed with the trial court that a "taking" had not occurred for three reasons: because the flooding was accidental and incidental rather than an intentional taking of property, because the alleged taking was not for a public use as required by the Constitution and because the Rohrs had other remedies for their harm, such as a tort claim against Westhoven and the failed tort claims against the county engineer. As such other remedies were available, the court also agreed with the trial court that the Rohrs failed to prove violations of their due process rights.
In their request for a review by the Ohio Supreme Court, the Rohrs focused on the lower courts' conclusions that a "taking" had not occurred. The Henry County Farm Bureau and the Ohio Farm Bureau filed a brief in support of the Rohrs, urging the Supreme Court to accept the case and review the takings issue. The Court today declined to accept the case by a vote of 5--2 with Justices Paul Pfeifer and Judith French dissenting. Without a review by the Ohio Supreme Court, the appellate court decision stands as the final resolution of the case.
The decision of the Third District Court of Appeals in State ex rel. Rohrs v. Germann is available here.