Daily Development for Wednesday, September 2, 2009
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

EMINENT DOMAIN; DEPRIVATION OF ACCESS: Even though owner retains access to property, state’s action that  “substantially or unreasonably” interfered with commercial use by depriving owner of a second access point which permitted “flow through” of traffic amounted to taking within meaning of state constitution.

State ex rel Thieken v. Procter, 904 N.E.2d 619 (Ohio App. 10 Dist).

The Ohio Department of Transportation ("ODOT"), appealed from a judgment of the Franklin County Court of Common Pleas in favor of  Thieken.

In 2001, the Department of Transportation initiated a project to improve the portion of State Route ("S.R.") 7.   Thieken owned a property on the north-west corner of the intersection of S.R. 7 and S.R. 775. From 1996 to 2006, Thieken leased his property to John W. Clark Oil Co., Inc., which operated a Marathon gas station/convenience store on the property. The convenience store, located to the rear (north side) of the property, faced S.R. 7, and an attached canopy extended from the store entrance almost to S.R. 7.

Prior to ODOT's improvements, both S.R. 7 and S.R. 775 were on the same grade with Thieken's property allowing customers to pull into the gas station from virtually any point at which the property abutted S.R. 7 or S.R. 775. ODOT's plans for improving S.R. 7 included the installation of a six-inch concrete curb along the majority of the southern boundary of Thieken's property. The curb would prevent customers from accessing Thieken's property from S.R. 7 except through a curb cut located on the southwest edge of the property. The curb cut consisted of a 42-foot apron, tapering to a 30-foot driveway.

Thieken initiated a mandamus action in the Franklin County Court of Common Pleas in which he alleged that ODOT's limitation of his access to S.R. 7 constituted a taking and that the Ohio Constitution entitled him to compensation for that taking. Thieken sought a writ of mandamus compelling ODOT to initiate an appropriation action to compensate him for its interference with access to his property.

Both Thieken and ODOT moved for summary judgment based on the evidentiary record developed in the Lawrence County Court of Common Pleas. The trial court granted ODOT summary judgment and denied Thieken summary judgment. Thieken appealed that judgment to the court of appeals. Finding that the parties presented conflicting evidence as to whether ODOT substantially or unreasonably interfered with Thieken's right of access, the court or appeals reversed the trial court's judgment and remanded the case to that court. On remand, the trial court conducted a bench trial and issued judgment in favor of Thieken.

The Ohio Constitution prohibits the state from taking private property for public use without just compensation. Section 19, Article I, Ohio Constitution. A "taking" occurs when the state substantially or unreasonably interferes with a property right. State ex rel. OTR v. Columbus ,76 Ohio St.3d 203, 206, 667 N.E.2d 8 (1996). One of the elemental rights of real-property ownership is the right of access to any public roadway abutting the property. Id. Therefore, any governmental action that subsubstantially or unreasonably interferes with the right to access abutting roadways constitutes a taking within the meaning of Section 19, Article I of the Ohio Constitution. OTR at syllabus. When the state completely deprives a property owner of all access to an abutting road-way, the state has substantially or unreasonably interfered with the right of access. McKay v. Kauer, 156 Ohio St. 347, 46 (1951).

However, a taking can occur even if the state's interference does not amount to a total obstruction of access. Courts have also found a substantial or unreasonable interference with the right of access when the state blocks an existing access point so as to create circuity of travel within a property. Hilliard v. First Indus., L.P., 158 Ohio App.3d 792, 2004. "Circuity of travel within one's own property occurs when one entrance or exit way is removed and another is not created." First Indus., L.P., at 8. Thus, when a property owner has two entrances from an abutting roadway, and the state blocks one of the entrances without supplying an additional entrance, circuity of travel within a property results. Thieken's property essentially had two wide entrances off S.R. 7 before ODOT installed curbing along that roadway. Customers could access the property either through the "eastern entrance," or the "western entrance" of Thieken's property. By installing a curb along Thieken's proper

ty boundary, ODOT completely blocked the eastern entrance and limited the western entrance to a 42-foot curb cut, tapering to a 30-foot driveway.

The Appeals court concluded that the trial court properly determined that ODOT substantially or unreasonably interfered with Thieken's right of access when it created circuity of travel within Thieken's property and overruled ODOT's first assignment of error.

ODOT argued that the trial court erred in allowing testimony about the highest and best use of Thieken's property and in relying upon that testimony to reach its decision. Although the trial court found that ODOT destroyed the highest and best use of Thieken's property, the appeals court did not conclude, that the trial court's decision "hinged" upon that finding, but, rather, that the trial court decided that ODOT substantially or unreasonably interfered with Thieken's right of access for two reasons: (1) ODOT created circuity of travel within Thieken's property and (2) a change in the highest and best use of the property. Since the Appeals court concluded that the trial court's first reason is both legally correct and supported by the evidence, they had no need to address any alleged error underlying the second reason.

Comment: DIRT has reported many cases over the years in which landowners who retained some access to their property were not able to argue a taking when other access was restricted.  The Ohio rule, here, seems somewhat more protective of the landowner.  The editor has not seen the “circuity of travel” argument used before, but here it appeared to be of great effect.

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