2014 Ohio 5663
Ohio Ct. App.2014Background
- In 2010 ODOT began a multi-year Cleveland Innerbelt bridge project adjacent to appellants’ home at 1107 University Road in Tremont; early work included a sewer realignment (managed by NEORSD).
- Construction activities included pile-driving (loud pounding), drilling, trenches, re-routed traffic, dust, vibrations, and increased wildlife; work continued through at least 2014.
- Appellants Sommer and Birge sued ODOT in the Court of Claims (2012) alleging inverse condemnation (takings) and public/private nuisance, claiming their property was uninhabitable due to noise, dust, and vibrations.
- The Court of Claims granted ODOT summary judgment; appellants appealed raising four assignments of error (takings legal standard and merits; nuisance different-in-kind; discretionary immunity).
- The appellate court reviewed de novo, rejected appellants’ argument that Penn Central regulatory‑takings analysis was required (appellants did not raise that standard below), and affirmed summary judgment for ODOT on both inverse condemnation and public nuisance claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper takings standard | Sommer: Court should have applied Penn Central regulatory‑takings factors | ODOT: This is not a regulatory‑takings claim and plaintiffs did not raise Penn Central below | Waived on appeal; court correctly applied traditional Ohio takings law instead of Penn Central |
| Merits of inverse condemnation | Construction noise/vibration/dust substantially interfered with dominion and control — compensable taking | ODOT: No physical invasion, no denial of access, harms are typical construction annoyances and not a taking | Summary judgment for ODOT; evidence did not show substantial interference or direct encroachment sufficient for a taking |
| Public nuisance (standing/special injury) | Plaintiffs: Harm was different in kind than that suffered by neighbors, so they may pursue public nuisance | ODOT: Harms (noise/dust/vibrations) are common to neighborhood, not different in kind | Summary judgment for ODOT; plaintiffs failed to show injury different in kind from the public |
| Discretionary‑immunity defense | Plaintiffs: Immunity does not permit negligent conduct causing nuisance | ODOT: (Court did not rely on immunity) | Court did not base decision on discretionary immunity; nuisance dismissed on lack of special injury |
Key Cases Cited
- Penn Cent. Transp. Co. v. New York, 438 U.S. 104 (1978) (three‑factor test for regulatory takings)
- Palazzolo v. Rhode Island, 533 U.S. 606 (2001) (applies Penn Central factors to non‑total takings)
- Norwood v. Sheen, 126 Ohio St. 482 (1933) (definition of taking as direct encroachment restricting owner’s dominion)
- Smith v. Erie R.R. Co., 134 Ohio St. 135 (1938) (governmental activity can constitute a taking in particular factual circumstances)
- McKee v. Akron, 176 Ohio St. 282 (1964) (intangible interference and consequential damage do not necessarily constitute a taking)
- State ex rel. Fejes v. Akron, 5 Ohio St.2d 47 (1966) (declining to extend low‑flying airplane takings precedent to construction vibrations)
- Lombardy v. Peter Kiewit Sons' Co., 266 Cal. App.2d 599 (1968) (construction noise, dust, shocks and vibrations generally not compensable as inverse condemnation)