No. CA2007-04-015. | Ohio Ct. App. | Sep 8, 2008
{¶ 2} On April 14, 1997, the village of Octa enacted Ordinance No. 97-003, authorizing the implementation of an urban renewal process. On May 13, 2002, the village enacted an urban renewal plan to relocate and construct a fully improved West Lancaster Road. The plan authorized the village to appropriate any real property via eminent domain to *2 construct the road "to cure blight within the project area."
{¶ 3} Appellant is the owner of six parcels of approximately 3.8 acres of real property located within the northwest quadrant of the US-35 and I-71 interchange in the village. The parcels were held by separate deeds and had various uses.1 To construct the road, the village filed a complaint to appropriate the entirety of one parcel and a portion of two other parcels. Pursuant to R.C.
{¶ 4} Assignment of Error No. 2:
{¶ 5} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT/APPELLANT OCTA RETAIL LLC BY FAILING TO DISMISS THE APPROPRIATION CASE WHEN IT LACKED SUBJECT MATTER JURISDICTION."
{¶ 6} In its second assignment of error, appellant claims that the village did not follow the proper procedure in appropriating the property and, as a result, the trial court erred by *3
failing to dismiss the appropriation case. Appellant urges that two appropriation procedures are described in the Revised Code: "quick takings" pursuant to Article
{¶ 7} In opposition, the village argues that since it appropriated the property to construct or repair a public road, the appropriation was an authorized "quick take" pursuant to R.C.
{¶ 8} Appellant correctly identifies that various procedures are available to public agencies when appropriating property. Section
{¶ 9} Further, R.C.
{¶ 10} Accordingly, the initial matter for determination concerns which procedure the village was required to follow.
{¶ 11} A municipality takes written action through its ordinances and resolutions. 21 Ohio Jurisprudence 3d (2001) 169, Counties, Section 699.3 R.C.
{¶ 12} "Municipalities are allowed to appropriate private land for public use, but this power is not absolute and can be exerted only when procedures set forth in relevant statutes are strictly followed."Springfield v. Gross,
{¶ 13} The resolution in this case states, in pertinent part:
{¶ 14} "RESOLUTION ENACTING URBAN RENEWAL PLAN NO. 2002-013
{¶ 15} "WHEREAS, the Mayor/Urban Renewal Director has reported to the Village Council that there exists blight within the Village and further that recommendations were contained in his report to cure said blight; and
{¶ 16} "WHEREAS, after due consideration of the report, the Village desires to adopt the plan as an urban renewal project; and
{¶ 17} "WHEREAS, the project is necessary to cure blight in the economically depressed areas of the Village.
{¶ 18} "NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL THAT:
{¶ 19} "* * *
{¶ 20} "2. That the Mayor/Urban Renewal Director shall in furtherance of the plan do the following:
{¶ 21} "a. Contract with Fayette County to construct a fully improved relocated West Lancaster Road.
{¶ 22} "b. Take action to appropriate [sic] eminent domain real property necessary to construct the road on which, in his opinion, is necessary to cure blight within the project area."
{¶ 23} The Ohio Constitution and Revised Code authorize a municipality to appropriate private property via the "quick take" procedure in limited situations.4 R.C.
{¶ 24} In this case, the village urges that it was appropriating the property under one of the enumerated "quick take" situations because it was "making or repairing" a road. However, the resolution passed by the village stated that the property was being appropriated to construct an improved West Lancaster Road "to cure blight within the project area" in furtherance of the village's urban renewal plan. The village makes no mention of R.C.
{¶ 25} In hindsight, the ultimate result the village wished to achieve may have been to simply relocate the road, but the resolution must be strictly limited to its stated purpose. If the village wished to exercise its power to "quick take" property, it is obligated to demonstrate that intent.
{¶ 26} Based on the language of the resolution, the village wished to relocate the road in furtherance of its developing urban renewal plan and use funds allocated under the plan to finance the relocation. Further, the resolution is silent regarding any exigent circumstances for rebuilding the road for which the Ohio Constitution specifically authorizes the "quick take" *7 procedure. Accordingly, based on the resolution, the village must comply with the appropriation procedures to cure blight and cannot use the "quick take" appropriation procedures.6
{¶ 27} The village did not comply with the proper procedure. Stating in the resolution that the road was being relocated in furtherance of the urban renewal plan, but proceeding via the R.C.
{¶ 28} Appellant's second assignment of error is sustained.
{¶ 29} Assignment of Error No. 1:
{¶ 30} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT/APPELLANT OCTA RETAIL LLC BY PERMITTING APPELLEE VILLAGE OF OCTA'S APPRAISER TO TESTIFY WHEN THE APPRAISER FAILED TO BASE HIS OPINION ON THE DIFFERENCE BETWEEN THE PRE-APPROPRIATION FAIR MARKET VALUE OF THE ENTIRE PROPERTY AND THE POST APPROPRIATION [sic] FAIR MARKET VALUE OF THE REMAINDER OF THE RESIDUE OF THE PROPERTY."
{¶ 31} At trial, the village's appraisal expert testified that land taken by the village was valued at $132,500. The appraiser testified that there was no damage to the residue. In the first assignment of error, appellant argues the testimony of the village's appraiser at trial was improper and the trial court erred by allowing the testimony because the appraiser's valuation method was contrary to law. The village argues that the testimony was proper because the *8 appraiser "had valued the property that was taken and found no damage to the residue and thus did not need to do a before or after value on the residue as the tracts were still of sufficient size and usefulness that they did not have any residual damage."
{¶ 32} Decisions regarding the admissibility of evidence are within the broad discretion of the trial court. State v. Hymore (1967),
{¶ 33} It is "improper for a witness to state his opinion of the amount of damages arising from an appropriation of property without giving an opinion as to the value of the property before and after the appropriation. Masheter v. Kebe (1976),
{¶ 34} The village's appraiser testified that his valuation was based exclusively on the value of the land taken. Further, he admitted he did not conduct a pre-appropriation and post-appropriation appraisal. After a review of the record, we find the testimony of the village's appraiser was inappropriate. A residue clearly exists in this case as the village did not take the entirety of all three parcels and the appraiser did not conduct his valuation as *9 required by law.7 Accordingly, the trial court abused its discretion by allowing the appraiser's testimony.
{¶ 35} Appellant's first assignment of error is sustained.
{¶ 36} Assignment of Error No. 3:
{¶ 37} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT/APPELLANT OCTA RETAIL BY FAILING TO HOLD A HEARING WHEN OCTA RETAIL'S ANSWER SPECIFICALLY DENIED THE RIGHT AND THE NECESSITY OF THE APPROPRIATION AND BY OVERRULING OCTA RETAIL'S MOTION FOR HEARING TO DETERMINE THE NECESSITY OF THE TAKE."
{¶ 38} Appellant argues in its third assignment of error that the trial court erred by denying its motion for a hearing to determine the necessity of the take when appellant's answer to the complaint specifically denied the right and necessity of the appropriation. Like its argument under the second assignment of error, the village argues that it is exempt from the hearing requirement because it proceeded via a "quick take" appropriation.
{¶ 39} During an appropriation proceeding, R.C.
{¶ 40} Having found in our previous discussion that the village did not pursue a "quick take" method of appropriation, the trial court was required to hear the matters denied by appellant in its answer within five to 15 days after the answer's filing. Further, appellant *10 questioned the amount of property appropriated, arguing that the portion appropriated was excessive. Since the trial court did not hold this mandatory hearing, appellant's third assignment of error is sustained.
{¶ 41} The current state of the subject property is similar to the situation in Cassady v. City of Columbus,
{¶ 42} The Cassady court held, "[a]t the time of the physical taking of their property by the city, plaintiffs, by their withdrawal and acceptance of the deposit, had been at least partially compensated in money for the property taken. Whether such compensation so paid constitutes full compensation within the contemplation of the constitution can only be ascertained when the jury returns its verdict assessing compensation. Under such circumstances, plaintiffs may not maintain a separate action in trespass against the defendant city." Id. at 106.
{¶ 43} The property at issue in the case at bar was similarly appropriated, appellant did not file for an injunction, and the village has already constructed the newly relocated West Lancaster Road. On remand, the trial court must first hold a R.C.
{¶ 44} Judgment reversed and this cause remanded to the trial court for further proceedings consistent with this opinion.
WALSH, P.J., and YOUNG, J., concur.