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Smiley v. City of Dayton

United States District Court, S.D. Ohio, Western Division

January 10, 2017

KENNETH SMILEY, JR. dba KEN'S KARS, Plaintiff,
v.
CITY OF DAYTON, OHIO, Defendant.

         DECISION AND ENTRY RESERVING RULING ON PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE THE AMOUNT OF PLAINTIFF'S SETTLEMENT WITH THE STATE OF OHIO, AND TO REQUIRE THAT ANY TESTIMONY AS TO THE VALUE OF THE PROPERTY BE RESTRICTED TO THE TIME OF THE TAKING (DOC. #49), AND OVERRULING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO THE ILLEGALITY OF THE VACATION OF SHAW AVENUE (DOC. #50)

          WALTER H. RICE UNITED STATES DISTRICT JUDGE

         Plaintiff Kenneth Smiley, Jr., alleges that the City of Dayton violated his constitutional rights when it took his real property for public use without just compensation. Trial is set for January 23, 2017. This matter is currently before the Court on two pending motions: (1) Plaintiff's Motion in Limine to Exclude the Amount of Plaintiff's Settlement with the State of Ohio, and to Require that Any Testimony as to the Value of the Property Be Restricted to the Time of the Taking (Doc. #49); and (2) Plaintiff's Motion for Partial Summary Judgment as to the Illegality of the Vacation of Shaw Avenue (Doc. #50).

         I. Background and Procedural History

         Plaintiff Kenneth Smiley, Jr., operates Ken's Kars, a used car lot in Dayton, Ohio. In 2006, the Ohio Department of Transportation ("ODOT") appropriated 10, 940 square feet of Plaintiff's commercial property in connection with improvements being made to Interstate 75. Doc. #54-1, PagelD#414. Plaintiff was left with a Residue of 6, 049 square feet of land (.14 acre). The Residue bordered the south side of Shaw Avenue, a one-way street that ran westward from North Main Street. Id. ODOT offered to buy the Residue for $1, 000, but Plaintiff refused the offer. Id.

         In March of 2008, the City Plan Board of the City of Dayton met to discuss ODOT's requests to vacate various streets and alleys in connection with the I-75 improvement project. Shaw Avenue was one of the streets slated to be vacated. After Plaintiff and others who owned property along Shaw Avenue expressed concern about being landlocked, ODOT agreed to withdraw its request to vacate that small portion of Shaw Avenue. Doc. #58, PagelD##559-60. Thereafter, in July of 2008, Plaintiff agreed to settle all claims against ODOT for $462, 800.00. Doc. #54-1, PagelD##429-34. He continued to use the Residue for business purposes.

         According to the Amended Complaint, in May of 2011, the City of Dayton removed the pavement from Shaw Avenue, leaving this Residue landlocked with no street access. The City also allegedly removed asphalt and balustrades from the Residue and built a public park there. In the summer of 2014, the City passed a resolution of intent to appropriate the Residue. When the City failed to file the requisite appropriation action within the agreed-upon time period, Plaintiff filed suit, alleging an unconstitutional taking of his property. The City of Dayton later filed a Counterclaim and Petition for Appropriation, and a Third Party Complaint against Carolyn Rice, Treasurer. Doc. #38.

         After attempts at mediation failed, Plaintiff filed a Motion in Limine to Exclude the Amount of Plaintiff's Settlement with the State of Ohio, and to Require that any Testimony as to the Value of the Property be Restricted to the Time of the Taking, Doc. #49. Plaintiff also filed a Motion for Partial Summary Judgment as to the Illegality of the Vacation of Shaw Avenue, Doc. #50. The Court turns first to the partial summary judgment motion.

         II. Plaintiff's Motion for Partial Summary Judgment as to the Illegality of the Vacation of Shaw Avenue (Doc. #50)

         Plaintiff seeks partial summary judgment concerning the illegality of the City's vacation of Shaw Avenue. He argues that the City may vacate a street in just one of two ways: (1) in accordance with Section 95.80(A) of the City of Dayton Code of Ordinances, the City can vacate a street pursuant to a petition signed by all of the owners of the property that abut the street; or (2) under Ohio Revised Code § 723.05, the City can pass an ordinance vacating the street if the Dayton City Commission finds that there is good cause for doing so and that the vacation would not be detrimental to the general interest.

         Because it is undisputed that the City pursued neither of these options, Plaintiff argues that he is entitled to summary judgment on the question of the illegality of the vacation of Shaw Avenue. He then argues that, because the City illegally vacated Shaw Avenue, the value of the Residue must be assessed as if the property still had street access.

         A. Summary Judgment Standard

         Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991).

         "Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial." Talley v. Bravo Pitino Rest., Ltd.,61 F.3d 1241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 250 (1986). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to "simply show that there is some metaphysical doubt as to the material facts." Matsushita Bee. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 (1986). Rule 56 "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477U.S. at 324. "The plaintiff must present more than a scintilla of evidence in ...


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