Golf Village N., LLC v. City of Powell, Ohio
14 F.4th 611
| 6th Cir. | 2021Background
- Plaintiffs (Golf Village North, Triangle Properties, and the Golf Village POA) own ~900 acres in Powell, Ohio, including private commercial streets (Market, Moreland, Sheridan) serving a commercial Subarea G.
- In 2010 one parcel (≈23 acres) was deeded to the City for a municipal park; the City later approved park construction plans (2017–18) showing an entrance near Sheridan/Moreland.
- Plaintiffs recorded a 2003 declaration granting non‑exclusive easements for users of the eleven parcels but retaining private‑road maintenance obligations for owners.
- The City proceeded with park construction, sought (but did not obtain) an easement over Sheridan, began using Market/Moreland/Sheridan without Plaintiffs’ consent, removed a curb, and created a construction entrance; it later filed a state quick‑take eminent‑domain action and deposited funds.
- Plaintiffs amended to assert § 1983 takings and procedural due‑process claims (and a state trespass claim); the district court dismissed the federal claims under Rule 12(b)(6), declined supplemental jurisdiction over trespass, and Plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the City effected a per se physical taking by appropriating a right of access to Market/Moreland Streets | City’s actions (park siting, construction access, apparent encouragement of public use) appropriated Plaintiffs’ right to exclude | No governmental appropriation or easement was created; Plaintiffs retain ability to exclude (e.g., barriers); increased traffic alone isn’t an appropriation | No; complaint fails to allege government authorized a right of access or removed Plaintiffs’ ability to exclude — takings claim dismissed |
| Whether increased public traffic/maintenance costs constitute a taking of the right to use and enjoy property | Increased traffic will cause damage and maintenance costs and effectively preempt private use, so this is a taking | Traffic and consequential damages without an appropriated easement do not constitute a taking | No; mere consequential harms and foreseeably increased use are insufficient absent appropriation of a right to use |
| Whether temporary construction‑crew entry and curb removal constituted a taking rather than a tort | Unauthorized entry and physical damage by City crews effected a taking | Temporary invasions/damages are torts (trespass), not per se takings | No; temporary invasions here are torts, not takings |
| Procedural due process, leave to amend, and supplemental jurisdiction | Plaintiffs urged leave to amend and argued dismissal with prejudice was improper; argued federal claims could proceed | Federal claims fail on the merits; Plaintiffs had opportunity to amend and didn’t seek further leave; district court may decline supplemental jurisdiction | Procedural due‑process claim dismissed for same reasons as takings; dismissal with prejudice was within district court’s discretion; declining supplemental jurisdiction proper |
Key Cases Cited
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021) (physical‑access regulations that appropriate a right of access are per se takings)
- Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (permanent physical occupation is a taking even if owner could change use)
- Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (discussing physical appropriation as paradigmatic taking)
- Kaiser Aetna v. United States, 444 U.S. 164 (1979) (government‑imposed navigational servitude can effect a taking/easement)
- United States v. Causby, 328 U.S. 256 (1946) (government overflight easement constituted a taking)
- Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987) (appropriation of easement as taking)
- Dolan v. City of Tigard, 512 U.S. 374 (1994) (land‑use exactions can be takings)
- Knick v. Township of Scott, 139 S. Ct. 2162 (2019) (landowner may bring federal takings claim without first seeking state compensation)
- Chmielewski v. City of St. Pete Beach, 890 F.3d 942 (11th Cir. 2018) (city encouragement/refusal to enforce trespass can effect a taking)
- Otay Mesa Prop., L.P. v. United States, 670 F.3d 1358 (Fed. Cir. 2012) (landowner not required to develop property to avoid asserted easement)
- Skip Kirchdorfer, Inc. v. United States, 6 F.3d 1573 (Fed. Cir. 1993) (government control of access can constitute a taking)
- State ex rel. Blank v. Beasley, 903 N.E.2d 1196 (Ohio 2009) (state‑court discussion of construction‑related trespass/damages)