Spellman Outdoor Advertising Services, LLC, Plaintiff-Appellant,
Ohio Department of Transportation c/o Outdoor Advertising Device Control Section, Division of Construction Management et al., Defendants-Appellees.
from the Franklin County Court of Common Pleas TYACK, P.J.
(C.P.C. No. 15CV-10708)
Law LLC, Michael J. Sikora, III and Alexander E. Goetsch, for
Michael J. Sikora, III.
Michael DeWine, Attorney General, Gregory S. Severance,
William J. Cole and Eric M. Hopkins, for appellees Ohio
Department of Transportation and Jerry Wray.
Mansour Gavin LPA, Bruce G. Rinker and John W. Monroe;
Jennifer L. Stueber and Tommie Jo Marsilio, General counsel;
Organ Cole LLP, Douglas R. Cole and Erik J. Clark, for
appellee The Ohio Turnpike and Infrastructure Commission.
1} Appellant, Spellman Outdoor Advertising Services,
LLC ("Spellman"), appeals from the April 5, 2016
decision and entry of the Franklin County Court of Common
Pleas affirming the November 16, 2015 order of the Director
of the Ohio Department of Transportation ("ODOT")
denying Spellman's permit applications for outdoor
advertising billboards along the Ohio Turnpike. For the
reasons that follow, we reverse the judgment of the court of
FACTUAL AND PROCEDURAL BACKGROUND
2} On March 16, 1953, David E. Mullet, Mary S.
Mullet, and Edward D. Mullet conveyed a strip of land from a
larger piece of property to the Ohio Turnpike Commission
("OTC") to be used for the planned construction of
the Ohio Turnpike. This strip of land consisted of
approximately 14.5 acres and is referred to as the
"Turnpike Property." A warranty deed was recorded
with the Portage County Recorder's Office on April 23,
1953, and contained the following restriction:
Grantor(s), for his/her/their heirs, administrators,
executors, and assigns, hereby covenant(s) with the State of
Ohio and the Ohio Turnpike Commission and their successors
and assigns that Grantor(s),  their heirs, administrators,
executors, and assigns shall not establish or maintain or
permit any natural or legal person to establish or maintain
on any of aforesaid remaining lands any billboard, sign,
notice, poster, advertising device, or other display which is
visible from the travelway of Ohio Turnpike Project No. 1,
and which is not at the date hereof in existence. This
covenant shall run with the land.
(ODOT Ex. B.) ("Mullet Restriction.")
3} When the Turnpike Property was deeded to OTC, the
Mullet property, consisting of 80.34 acres, was divided into
three segments. First, there was the Turnpike Property
itself. Then there was a 58.2 acre portion that remained
north of the Turnpike Property. Then there was a 7.6 acre
portion south of the Turnpike Property that is at issue in
this case and is referred to by the parties as the
"Spellman Property." The division of the Mullet
property into those three segments is included in an acreage
report attached to the Turnpike deed.
4} After the Turnpike deed was recorded in 1953, the
Spellman Property was transferred three times with the final
transfer to Willis and Gloria Mulhern (the
"Mulherns") recorded in 1989. None of the transfers
of the Spellman Property made reference to the Mullet
Restriction. No instrument in the chain of title to the
Spellman Property includes, takes exception to, or references
in any way, the Mullet Restriction.
5} In August 2007, Spellman entered into a lease
with the Mulherns to erect and maintain outdoor advertising
structures on the Spellman Property located at 9175 N. Main
Street, Windham, in Portage County, Ohio. The lease was
recorded on November 26, 2007 in Portage County in the chain
of title to the Spellman Property. (Memorandum of Lease.)
6} In August 2007, Spellman obtained a property
report for the Spellman Property which stated in pertinent
part: "THERE WERE NO RESTRICTIONS OF RECORD FOUND AT
THIS TIME, PORTAGE COUNTY RECORDS, OHIO." ...