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Orchard Lane Enterprises, LLC v. Ohio Department of Transportation

Court of Claims of Ohio

December 8, 2017


          Sent to S.C. Reporter 1/5/18

          Jack Morrison, Jr., Jack W. Morrison, Jr., Christopher P. Conomy Assistant Attorney General


          HOLLY TRUE SHAVER, Magistrate Judge

         {¶1} Plaintiff brought this action alleging a temporary taking of property. The case proceeded to trial on the issues of both liability and damages.

         {¶2} In May 2015, defendant, Ohio Department of Transportation (ODOT), began a construction project near plaintiffs rental property at the intersection of East South Street and Brown Street. Plaintiff asserts that the construction project resulted in a complete closure of access to its property. Plaintiff seeks damages for loss of income for the period of time that the property was unoccupied, and for the loss of value of the property when plaintiff sold it. Defendant asserts that plaintiff is not entitled to any damages, inasmuch as plaintiff has failed to show that the construction project resulted in a substantial, material, or unreasonable interference with access to plaintiffs property.

         {¶3} The Tenth District Court of Appeals has set forth the legal framework for a claim of a taking of property without just compensation:

When a landowner's property abuts a public highway, that owner "possesses, as a matter of law, not only the right to the use of the highway in common with other members of the public, but also a private right or easement for the purpose of ingress and egress to and from his property, which latter right may not be taken away or destroyed or substantially impaired without compensation therefor." (Emphasis added.) State ex rel. BDFM Co. v. Ohio Dept. of Transp., 10th Dist. Franklin No. 11AP-1094, 2013-Ohio-107, ¶ 15, quoting State ex rel. Merritt v. Linzell, 163 Ohio St. 97 (1955), paragraph one of the syllabus. However, an abutting property owner's right of access is generally subordinate to the public's right to use or improve a public street. Salvation Army v. Ohio Dept. of Transp., 10th Dist. Franklin No. 04AP-1162, 2005-Ohio-2640, ¶ 16, citing State ex rel. Schiederer v. Preston, 170 Ohio St. 542, 544 (1960). Further, proof that property has been damaged, or rendered less desirable as a result of governmental activity, does not in itself constitute a taking so as to entitle a property owner to compensation. Id., citing State ex rel. Morris v. Chillicothe, 4th Dist. Ross No. 1720 (Oct. 2, 1991). "The test of whether this right of access is so impaired as to require compensation is whether there is a substantial, material or unreasonable interference with an owner's or public's access to his property." Id., quoting State ex rel. B&B Co. v. Toledo, 6th Dist. Lucas No. L-81-309 (Mar. 19, 1982).

Smith v. Ohio Dept. of Transportation, 10th Dist. Franklin No. 15AP-521, 2015-Ohio-5240, ¶ 8.

         {¶4} In addition, "'[substantial interference' occurs when an owner is 'prevented from enjoying the continued use to which the property had been previously devoted.'" Salvation Army, supra, ¶ 16, quoting Wray v. Fitch, 95 Ohio App.3d 249, 252 (9th Dist.1994).

         {¶5} Josh Rounds testified that he is the president of Orchard Lane Enterprises, LLC, (Orchard), a company that acquires rental properties. Rounds testified that Orchard purchased the property at 500 East South Street, a single-family house near the University of Akron, on a land contract in November 2013 for $28, 000. (Plaintiff's Exhibit 1.) According to Rounds, the property had tenants when Orchard purchased it, but those tenants moved out in December 2014. The property acquired new tenants in January 2015. (Plaintiff's Exhibit 3.) In May 2015, the construction project at issue resulted in a closure of the intersection of Brown and East South Streets. In June 2015, the tenants moved out, purportedly because of the construction project and their inability to access the house.[1] In November 2015, the intersection was re-opened, but Rounds was unable to rent the property until April 11, 2016. (Plaintiffs Exhibit 4.) In May 2016, ODOT began construction in the area again and closed the same intersection. The new tenants moved out of the property shortly thereafter. In September 2016, plaintiff sold the property at a loss for $13, 300. (Plaintiffs Exhibits 5-6.) Rounds testified that Orchard lost $700 per month when the property was vacant, for 10 months from June 2015 through April 2016, and again for four months from June through September 2016. Accordingly, Rounds seeks damages in the amount of $9, 800 in lost rent/utilities expense, plus $14, 700 which represents the loss that Orchard incurred when it sold the property, for a total of $24, 500.

         {¶6} To explain the impact that the construction project had on plaintiffs property, a description of the local streets is necessary. The block on East South Street where the property in question is located includes two other residential properties, the "Bill Denton Outreach Center, " and the Summit County Engineer's Office. East South Street runs East and west. Brown Street runs north and south, and intersects East South Street on the west side. Prior to the construction project, Spicer Street also ran north and south, under I-76, and intersected East South Street on the East side, near the Summit County Engineer's Office. A motorist could access plaintiff's property either by traveling on Brown Street or Spicer Street.

         {¶7} The initial phases of the construction project permanently closed the portion of Spicer Street that ran under I-76 and intersected with East South Street. The project also eliminated access from Spicer Street to Johnston Street north of I-76. Ultimately, the block where plaintiff's property was located was turned into a cul-de-sac near the Engineer's Office. During the first stages of the project prior to May 2015, there was no access to plaintiff's property from Spicer Street. The only access was from the west.

         {¶8} In May 2015, the intersection of Brown Street and East South Street was closed. A detour on East Crosier Street allowed access to the Engineer's Office. However, that detour did not lead to plaintiff's property. The issue in this matter is whether ODOT's closure of the intersection of Brown and East South Streets resulted in a substantial, material, or unreasonable interference with plaintiffs access to its property at 500 East South Street.

         {¶9} Rounds presented photographs of the intersection and surrounding area near the property during the construction project. Plaintiffs Exhibit 7 was taken by the property manager for Orchard on August 8, 2015. Rounds explained that the two photos in Exhibit 7 depict the intersection of Brown and East South Streets, looking north on Brown Street. The building depicted in the photograph to the right is the Outreach Center. Rounds testified that the intersection to access his property on this day was completely blocked, and that no vehicular traffic had access to the property. Rounds testified that Plaintiffs Exhibit 8 contains photographs that depict the intersection in May 2016, during the second time that the intersection was closed, looking East on East South Street. According to Rounds, the section of East South Street in front of his property was used to store dirt, construction materials, and the vehicles of construction employees. Plaintiffs Exhibit 8 also shows the embankment that was placed on Spicer Street when the street was reconfigured, and the area where East South Street was changed to a cul-de-sac in front of the Engineer's Office. Plaintiffs property is visible in the photographs, as is the driveway that accesses plaintiffs property from East South Street. Multiple vehicles are also depicted in the ...

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