City of Dublin v. BeatleyCity of Dublin v. Beatley
For Plaintiff-Appellee
PHILIP K. HARTMANN
YAZAN S. ASHRAWI
Frost Brown Todd LLC
10 West Broad Street, Suite 2300
Columbus, Ohio 43215
For Defendants-Appellants
KEVIN E. HUMPHREYS
332 W. 6th Avenue
Columbus, Ohio 43201
For Amicus Curiae, Ohio Department of Transportation
MICHAEL DEWINE
Attorney General of Ohio
By: ERIC M. HOPKINS and
L. MARTIN CORDERO
150 East Gay Street, 22nd Floor
Columbus, Ohio 43215
Baldwin, J.
{¶1} Appellant, Jack K. Beatley, appeals the Delaware County Common Pleas Court‘s December 26, 2017 denial of Appellant‘s Challenge to the Necessity of the Appropriation, and Appellee‘s Right to Appropriate the Property. Appellee is the City of Dublin. Jon Peterson, Delaware County Treasurer, is a nominal party but did not participate in this appeal.
STATEMENT OF FACTS AND THE CASE
{¶2} This case arises from Appellee‘s attempt to appropriate a portion of Appellant‘s property, namely, approximately 0.155-acre fee simple interest, all of which is encumbered with a roadway easement (also known as Present Road Occupied or P.R.O.), without limitation to existing access; an approximately 0.045-acre permanent slope, grading, and drainage easement; and an approximately 0.037-acre temporary construction easement, for the construction of the Glick Road Shared-Use Path (the Project).
{¶3} Appellee has been working to complete the Project since late 2012 or early 2013 when they approached Appellant and described their plans. Appellant reportedly rejected the plan and vowed to fight the Appellee if it continued with the Project.
{¶4} On February 24, 2014 Appellee adopted Resolution 15-14 (the “Resolution“), declaring Appellee‘s need for the property from Appellant and its intent to appropriate that property. A copy of that resolution was personally delivered to Appellant on March 3, 2014. On May 5, 2014 Appellee adopted Ordinance Number 26-14 (the “Ordinance“), authorizing Appellee to proceed with an appropriation action and take all steps necessary to appropriate the property interest from Appellant. Coincidentally,
{¶5} Appellee presented the testimony of Paul Hammersmith, Director of Engineering for Appellee since January 2002. Mr. Hammersmith confirmed that the Project involved the use of the property sought for public purposes, namely a shared-use path that would be part of the public infrastructure. The path was part of a larger project connecting these paths throughout the Appellee‘s territоry to accommodate pedestrians and non-motorized vehicles. Mr. Hammersmith described the property rights sought as necessary for the completion of the project.
{¶6} Appellee offered into evidence the resolution and ordinance authorizing the appropriation as well as two exhibits describing the Appellee‘s general plan for such paths in the municipality and maps showing current and future shared use paths.
{¶8} The trial court issued its decision on December 26, 2017 concluding “that the appropriation is in fact necessary and that Dublin is entitled to proceed with its efforts to appropriate Beatley‘s property.” (Judgment Entry, December 26, 2017, page 1) Appellee filed his notice of appeal on January 25, 2018 and submitted six assignments of error:
{¶9} “I. THE TRIAL COURT COMMITTED AN ERROR OF LAW IN ITS CONCLUSION THAT SUBJECT MATTER JURISDICTION WAS NOT LACKING.”
{¶10} “II. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT DUBLIN HAD A RIGHT TO APPROPRIATE MR. BEATLEY‘S REAL PROPERTY FOR A USE DESCRIBED AS A “MULTI-USE” PATH.”
{¶11} “III. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT DUBLIN HAD A RIGHT TO APPROPRIATE EXCESS PROPERTY BEYOND THAT REQUIRED FOR THE MULTI-USE PATH.”
{¶13} “V. THE TRIAL COURT ERRED IN ITS CONCLUSION THAT DUBLIN HAD A RIGHT TO MAKE THE TAKE(sic), WHEN DUBLIN FAILED TO DEMONSTRATE COMPLIANCE WITH
{¶14} “VI. THE TRIAL COURT ERRED IN ITS ADMISSION OF EVIDENCE AND TESTIMONY RECEIVED FROM MR. HAMMERSMITH.”
STANDARD OF REVIEW
{¶15} The Appellant‘s first assignment of error addresses the subject matter jurisdiction of the trial court and, on that issue, our review is de novo. Dotts v. Schaefer, 5th Dist. Tuscarawas No. 2014 AP 03 0012, 2015-Ohio-781, ¶ 9. We are limited to determining whether there is competent and crеdible evidence to support the trial court‘s finding of a lack of abuse of discretion when reviewing assignments Two through Four. As we held in Atwood Regional Water & Sewer Dist. v. Smith, 5th Dist. Tuscarawas No. 2016 AP 05 0026, 2017-Ohio-206, ¶ 33:
Here Appellee *** adopted a resolution of necessity for the appropriation. Thus, under
R.C. § 163.09(B) , the burden of proof fell upon [Appellant] to demonstrate that the appropriation was not necessary. In order to find that there was no necessity for the apprоpriation, the trial court would have had to determine that Appellee ***abused its discretion. In reviewing the trial court‘s conclusion that there was no such abuse of discretion, we are limited to determining whether the decision was supported by competent and credible evidence. City of Toledo v. Kim‘s Auto & Truck Service, Inc., 6th Dist. No. L-02-1318, 2003-Ohio-5604, at ¶ 10; Erie-Ottawa-Sandusky Regional Airport Authority v. Orris (Sept. 13, 1991), 6th Dist. No. 90-OT-039, at *4.
In the Sixth assignment of error Appellant contends the court erred in the admission of evidence, and for that issue, our review is focused on whether the trial court committed an abuse of discretion. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343(1987)
ANALYSIS
FIRST ASSIGNMENT OF ERROR
{¶16} Appellant reviews the language of pertinent Revised Code Sections and concludes, citing the holding in Ohio Water Serv. Co. v. Wash., 87 Ohio Law Abs. 1, 176 N.E.2d 360 (C.P.1961) as authority, that the adoption of an appropriation ordinance constitutes a “legislative appropriation” and that
{¶17} With regard to the failure to include the mortgagee as a party and serve it notice,
{¶18} Appellant noted in his prehearing brief filed with the trial court on November 30, 2017 that:
[w]hile a great body of case law has evolved pertaining to judicial appropriation proceedings as “special statutory proceedings,” it is important for this court tо recognize that the provisions of
R.C. 163.01 , et seq., underwent substantial revision in 2007. Therefore any judicial determination involving appropriation proceeding that was commenced before the October 10, 2007, amendments must be evaluated as to the effect of the present form of the legislative text.
{¶19} We agree that judicial decisions that predate the codification of the process of appropriation in
{¶20} Appellant‘s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶21} Appellant contends in his second assignment of error that
{¶22} Appellant does not cite to precedent that clearly supports his contention that the Appellee is restricted to the uses described in
{¶23} Further, we find competent credible evidence in the record to support the trial court‘s decision that the description of the project as a shared-use path is not an abuse of Appellant‘s discretion. The record contains evidence establishing that this project is part of a larger infrastructure project by the Appellee to provide the public access to alternative means of transportаtion throughout the community and support public health and welfare.
Once a municipality has determined that appropriation is necessary for a public use, the trial court may not reverse that determination unless the municipality has abused its discretion. City of Huron v. Hanson, supra. See, also, State ex rel. Gordon v. Rhodes (1951), 156 Ohio St. 81, 100 N.E.2d 225, paragraph two of the syllabus (a municipality‘s determination of “municipal public purpose” for purposes of the home rule amendments to the Ohio Constitution shall not be rеversed by a court unless the determination is “manifestly arbitrary or unreasonable.“)
{¶24} The Appellee is authorized to exercise the power of eminent domain by the language of
{¶25} For the forgoing reasons, we find the record contains competent, credible evidence supporting the trial court‘s decision that
THIRD ASSIGNMENT OF ERROR
{¶26} In his third assignment of error, Appellant complains that the trial court erred in its dеtermination that Appellee had a right to acquire “excess property” beyond that required for the shared-use path. Based upon the record before us, we note that a small portion of property will not be directly beneath the path but will be separated from Appellant‘s property by the path. If the Appellee does not purchase this piece of property it will not be contiguous to the Appellant‘s property and will be of little or no benefit to Appellant.
{¶27} The resolution adopted by Appellee declares all of the property described therein as necessary to complete the project. Further, the testimony of Mr. Hammersmith, director of engineering for the Appellee, testified that all of the property described within the resolution was necessary for the completion of the project.
{¶29} In Cincinnati, the taking included entire parcels owned by plaintiffs therein that were clearly not part of the road widening project. In Springfield, supra at ¶ 2, the Court noted that the recorded showed:
That the city does not intend to use the entire 0.677 acres of the Grosses’ property for the stated public purpose, a replacement sewer lift station, because the record shows that the city intends to use a portion of the property to store construction vehicles, equipment, and materials during construction of the replacement sewer lift station and to build another replacement sewer lift station in 20 to 25 years. Thus, the city is seeking excess property over what is actually necessary as a site for the improvement recited as the purpose for the appropriation.
{¶30} In this case, there is no such evidence of a blatant and unreasonable excess appropriation and, more importantly, the property being taken is already dedicated to public use. The “excess parсel” being appropriated is a small parcel that is beneath the highway and will be completely separated from Appellant‘s property by the shared-use path. The Appellant has a remainder interest in that property and nothing more. The facts support a conclusion that the portion at issue is an “uneconomic remnant.” The trial
{¶31} For those reasons, Appellant‘s third assignment of error is overruled.
FOURTH ASSIGNMENT OF ERROR
{¶32} Appellant attacks the trial court‘s conclusion that the Appellee established the taking was necessary in his fourth assignment of error.
{¶33} Appellee has adopted a resolution of necessity for the appropriation creating a rebuttable presumption that the appropriation is necessary. Consequently, the burden of proof shift the Appellant to establish that the appropriation was not necessary. “In order to find that there was no necessity for the appropriation, the trial court would have had to determine that Appellee***abused its discretion.” Atwood Regional Water & Sewer Dist. v. Smith, 5th Dist. Tuscarawas No. 2016 AP 05 0026, 2017-Ohio-206, ¶ 33.
{¶34} The trial court arrived at the conclusion that the presumption of necessity had not been rebutted based upon the evidence provided. The court noted that the Appellee provided evidence of a comprehensive bike path network to provide connectivity and health benefits and nothing was presented to the trial court to demonstrate fraud, bad faith or abuse of discretion on the part of Appellee. The trial court concluded that the evidence supported the Appellee‘s need to acquire the property to further its interest in promoting public purposes of supporting health and safety of Dublin‘s residents and visitors. We have reviewed the record and we agree that there is competent, credible
FIFTH ASSIGNMENT OF ERROR
{¶35} Appellant claims the court erred in finding that Appellee complied with
{¶36} Further, there is testimony from Appellee‘s witness that these issues were kept in mind during the planning of the project but that no changes were necessary. The trial court found that the Appellee complied with its statutory obligation to make reasonable efforts to plan the bike path project in a way that would limit any adverse impact on Appellant‘s remaining property. We find there is competent, credible evidence
{¶37} Appellant‘s fifth assignment of error is overruled.
SIX ASSIGNMENT OF ERROR
{¶38} Appellant complains, in his sixth assignment of error, that the trial court erred in admitting evidence and testimony received from Mr. Hammersmith. This assignment of error is presented without any authority or precedent and essentially is a complaint that the trial court complied with the requirements of the
{¶39} Appellant‘s sixth assignment of error is overruled.
By: Baldwin, J.
Gwin, P.J. and
John Wise, J. concur.