to S.C. Reporter 1/5/18
Morrison, Jr., Jack W. Morrison, Jr., Christopher P. Conomy
Assistant Attorney General
DECISION OF THE MAGISTRATE
TRUE SHAVER, Magistrate Judge
Plaintiff brought this action alleging a temporary taking of
property. The case proceeded to trial on the issues of both
liability and damages.
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.
The Tenth District Court of Appeals has set forth the legal
framework for a claim of a taking of property without just
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.
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
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. 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.
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.
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
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.
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 ...