The State ex rel. New Wen, Inc., d.b.a. Wendy's
Marchbanks, Dir., et al.
Submitted May 7, 2019
Sater, Seymour & Pease, L.L.P., Joseph R. Miller, Thomas
H. Fusonie, and Daniel E. Shuey, for relator.
Yost, Attorney General, Benjamin M. Flowers, State Solicitor,
Diane R. Brey, Deputy Solicitor, and L. Martin Cordero, Eric
M. Hopkins, and William J. Cole, Assistant Attorneys General,
Sater, Seymour & Pease, L.L.P., John M. Kuhl, and
Elizabeth S. Alexander, urging granting of the writ for
amicus curiae, Ohio Council of Retail Merchants.
1} Relator, New Wen, Inc., d.b.a. Wendy's, seeks
a writ of mandamus to compel the Ohio Department of
Transportation and its director, Jack
Marchbanks (collectively, "ODOT"), to
commence appropriation proceedings for an alleged taking of
its real property. We previously granted judgment on the
pleadings and dismissed the claims brought by the other
relators-Speedway, L.L.C., and Bob Evans Restaurants, L.L.C.,
and BER Real Estate Investments I, L.L.C (collectively,
"Bob Evans")-in this action. State ex rel.
Speedway, L.L.C. v. Wray, 152 Ohio St.3d 1418,
2018-Ohio-923, 93 N.E.3d 1000. For the reasons that follow,
we now grant New Wen's request for a writ of mandamus.
Summary of the issue presented
2} State Route 16 ("S.R. 16") generally
travels east-west through Licking County, in large part as a
four-lane, limited-access, divided highway. Until late 2016,
Cherry Valley Road, a.k.a. County Road 128 ("CR.
128"), a north-south road, intersected S.R. 16 at a
four-way, signalized intersection that allowed traffic to
enter or exit either road in all directions. ODOT permanently
closed the intersection shortly after Thanksgiving in 2016.
3} BER Real Estate Investments I, L.L.C, owns the
parcel on the southeast corner of the former intersection and
leases the property to Bob Evans Restaurants, L.L.C, which
operates a Bob Evans restaurant on the site. Speedway,
L.L.C., owns the parcel on the southwest corner, on which it
operates a Speedway convenience store and fuel center. Other
business entities own properties near the former
4} New Wen owns the parcel on the northwest corner
of the former intersection of S.R. 16 and C.R. 128, on which
it operates a Wendy's restaurant. The Wendy's is
accessible to cars via an access point on C.R. 128. There is
no access point permitting entry to the Wendy's parking
lot directly from S.R. 16. Due to this configuration, from
1992, when the Wendy's restaurant opened, to November
2016, when the intersection closed, drivers could access the
Wendy's from S.R. 16 by turning north on C.R. 128.
5} As a result of ODOT's closure of the
intersection, C.R. 128 no longer runs straight across S.R.
16. As drivers on C.R. 128 approach S.R. 16 from either the
north or the south, they encounter a dead-end immediately
before S.R. 16. On the north side, C.R. 128 dead-ends after
the access point to the Wendy's parking lot; ODOT removed
the short stretch of C.R. 128 that ran between that access
point and S.R. 16, planted grass, erected a fence, and placed
a guardrail just south of the Wendy's access point.
Drivers on S.R. 16 can likewise no longer turn onto C.R. 128;
S.R. 16 simply passes through the point where the
intersection used to be. As a replacement for this closure,
ODOT opened a new, limited-access interchange approximately
0.4 miles east of C.R. 128. Drivers on S.R. 16 may now reach
the portion of C.R. 128 north of S.R. 16 by exiting at that
new interchange, proceeding north on a new road called
Thornwood Crossing, and taking a local road that parallels
6} ODOT's work did not directly affect the
entrance to the Wendy's parking lot from C.R. 128. But as
a practical matter, the changes require drivers to travel a
longer distance to access the Wendy's from S.R. 16. Prior
to the changes, a driver traveling east on S.R. 16 could
reach the Wendy's by simply turning left onto C.R. 128
and then turning left again into the Wendy's parking
lot-a distance of 0.22 miles from the point where the driver
could first see the Wendy's site. After the changes, a
driver has to exit S.R. 16 at the new interchange, travel to
C.R. 128 using local roads, and then approach the Wendy's
from the north-a distance of 1.6 miles. Similarly, the
distance that drivers traveling west on S.R. 16 must cover to
reach the Wendy's increased from 0.26 miles before the
changes to 1.38 miles, using the new interchange and local
roads. The distance that drivers leaving the Wendy's must
travel to reach S.R. 16 has increased to a similar degree.
7} The legal question this case presents is whether
ODOT's closure of the access point at the junction of
S.R. 16 and C.R. 128 constitutes a compensable taking that
requires ODOT to commence appropriation proceedings.
The evidence in the record
8} In 1960, ODOT's predecessor, the Ohio
Department of Highways, recorded a centerline plat in the
office of the Licking County Recorder showing the proposed
route for a limited-access east-west highway that would run
through portions of Licking County. That highway-S.R.
16-would bisect C.R. 128.
9} The northwest corner parcel bounded by S.R. 16
and C.R. 128 was part of a larger property owned by Alice
Virginia Jones Olmsted, a.k.a. Alice Virginia Jones LaRue. In
April 1961, the state paid Olmsted $23, 299 for a permanent
highway easement across the southern portion of her property,
for the construction of S.R. 16 (the "S.R. 16
Easement"). The state and Olmsted agreed that the
payment was compensation for the land taken and for all
resulting damages. The S.R. 16 Easement conveyance included
an express term by which Olmsted
specifically waive[d] and release[d] any and all right or
rights of direct access, or claims thereof, to the present
highway improvement to be constructed, or to the ultimate
highway improvement to be constructed in the future, as
called for by the plans herein referred to, and the execution
of this conveyance shall act automatically as a waiver to the
State of Ohio in the elimination of any direct access to said
highway either for present or future construction.
10} At the same time, as part of the S.R. 16
construction project, the state purchased a second easement
over the eastern portion of Olmsted's property (the
"C.R. 128 Easement"). This small easement involved
a parcel that was already in large part subject to a
preexisting easement for the right of way for C.R. 128. The
S.R. 16 project plans identified a "Point of
Access" at the juncture of the C.R. 128 Easement and the
S.R. 16 Easement, which, according to the affidavit of an
ODOT administrator, was created "[i]n order to permit
the right of the traveling public within the right of way of
County Road 128 * * * southbound to lawfully access
ODOT's new limited access right of way."
11} New Wen (through a predecessor entity) purchased
a portion of Olmsted's property located immediately to
the north of the S.R. 16 Easement, on which it opened the
Wendy's restaurant. Although New Wen's property does
not include any part of the land covered by the S.R. 16
Easement, it does include part of the land covered by the
C.R. 128 Easement. Specifically, the eastern border of New
Wen's property lies at the centerline of C.R. 128, so the
portion of the C.R. 128 Easement to the west of the
centerline is on New Wen's property.
12} In June 2017, New Wen, Speedway, and Bob Evans
filed a five-count complaint for a writ of mandamus to compel
ODOT to initiate appropriation proceedings. ODOT filed a
motion for judgment on the pleadings.
13} On March 14, 2018, we granted the motion in part
and denied it in part. 152 Ohio St.3d 1418, 2018-Ohio-923, 93
N.E.3d 1000. After dismissing all claims brought by the other
relators, we granted an alternative writ of mandamus only as
to New Wen's claim for a physical taking. The parties
submitted briefs and evidence, the Ohio Council of Retail
Merchants filed amicus briefs in support of New Wen, and we
granted New Wen's request for oral argument.