Opinion · Ohio Supreme Court
State ex rel. OTR v. City of Columbus
76 Ohio St. 3d 203
- Type
- Opinion
- Court
- Ohio Supreme Court
- Jurisdiction
- Ohio
- Date
- 1996-07-31
- Topic
- general
finding that a taking can occur even when the government does not deny all access to the property | finding that a taking can occur even when the government does not deny all access to the property | stating that “to establish a taking, a landowner must demonstrate a substantial or unrea sonable interference with a property right” and holding that easements were taken where access routes were permanently and completely blocked by a concrete retaining wall | change in grade of public road due to building of overpass bridge substantially impaired landowner's access | change in grade of public road due to building of overpass bridge substantially impaired landowner’s access
Citator
- Cited by
- 47 opinions
[This opinion has been published in Ohio Official Reports at76 Ohio St.3d 203
.]
THE STATE EX REL. OTR ET AL., APPELLANTS, v. CITY OF COLUMBUS ET AL.,
APPELLEES.
[Cite as State ex rel. OTR v. Columbus, 1996-Ohio-411
.]
Real property—Owner of property abutting highway has right of access to street
it abuts—Any governmental action that substantially and unreasonably
interferes with this right constitutes a taking of private property within
meaning of Section 19, Article I of Ohio Constitution and Fifth
Amendment to United States Constitution.
__________________
An owner of a parcel of real property has a right to access public streets or highways
on which the land abuts. Therefore, any governmental action that
substantially or unreasonably interferes with this right constitutes a taking
of private property within the meaning of Section 19, Article I of the Ohio
Constitution and the Fifth Amendment to the United States Constitution.
__________________
(No. 95-611—Submitted March 19, 1996—Decided July 31, 1996.)
APPEAL from the Court of Appeals for Franklin County, No. 94APE05-761.
__________________
{¶ 1} This appeal involves two properties owned by appellant OTR. OTR
is a general partnership that is authorized to hold property in its name and on behalf
of appellant State Teachers Retirement System of Ohio. The properties in question
are located directly across from each other at 355 and 400 East Campus View
Boulevard, Columbus, Ohio. Both properties are zoned for commercial use. The
zoning standards for this area were adopted by appellee, city of Columbus, in 1982.
Under these standards, improvements to the properties are subject to certain height,
setback, “curb cut,” and other restrictions.
SUPREME COURT OF OHIO
{¶ 2} The 355 East Campus View Boulevard property (also referred to as
Crossgate Center) is a 6.321-acre parcel improved with a two-story, multi-tenant
office building and parking area. The property is located on the south side of
Campus View Boulevard, abutting the roadway for a distance of approximately five
hundred forty feet. Access to Crossgate Center is provided by driveways onto
Courtyard and Horizon Drives, located to the west and south of the property,
respectively.
{¶ 3} The 400 East Campus View property (also known as Campus View
Plaza) is a 12.166-acre parcel improved with a one-story office building, occupied
by the Ohio Rehabilitation Service Commission, and parking area. The property is
located on the north side of Campus View Boulevard, abutting the roadway for a
distance of approximately one thousand feet. Access to Campus View Plaza can
be obtained by way of a common access driveway located at the southwest section
of the property. This driveway crosses a separately designated tax parcel owned by
OTR. The record further indicates that access is also provided via a driveway that
is located at the northwest portion of the property.
{¶ 4} Both Crossgate Center and Campus View Plaza are located west of
privately owned railroad tracks. When OTR acquired the properties, Campus View
Boulevard dead-ended to the west of the tracks at a relatively flat grade. The grade
of Campus View Boulevard was established by a 1985 city ordinance.
{¶ 5} In February 1987, the city solicited proposals for engineering services
regarding the extension of Campus View Boulevard to the east, which would
involve crossing the railroad tracks and connecting Campus View Boulevard with
Worthington Woods Boulevard. The purpose of connecting the boulevards was to
accommodate an increase in traffic flow in the area. Initially, the city approached
the railroads about the possibility of connecting the roads by way of an underpass,
as opposed to an overpass grade separation. In a letter to one of the railroad
companies, the city stated that an overpass would be a “massive intrusion * * *,
2
January Term, 1996
given the existing land use and urban character.” However, after further
discussions with the railroads, the city decided not to pursue the option of an
underpass but, instead, elected to construct an overpass.
{¶ 6} The overpass bridge connecting Campus View Boulevard and
Worthington Woods Boulevard was constructed entirely within the city’s existing
right of way. The overpass design employed by the city incorporates concrete
retaining walls to establish an incline at a five-percent grade. At its highest point,
the overpass reaches an approximate thirty-foot elevation. The grade separation
and concrete retaining walls run virtually the entire length of both the Crossgate
Center and Campus View Plaza properties, creating a barrier between the properties
and Campus View Boulevard. As a result, OTR is prevented from developing any
access routes along the properties’ frontage on Campus View Boulevard.
{¶ 7} On February 12, 1993, appellants filed a mandamus action in the
Franklin County Court of Common Pleas, seeking an order to compel the city and
others1 to commence appropriation proceeding with respect to both properties. In
the mandamus action, appellants alleged that the construction of the railroad
overpass interfered with their rights to access the properties via Campus View
Boulevard, and that this interference constituted a “taking” of private property
within the meaning of the United States Constitution and Article I, Section 19 of
the Ohio Constitution.
{¶ 8} The matter proceeded to a bench trial. The trial court heard testimony
from several witnesses and numerous exhibits were admitted into evidence. The
trial court ruled in favor of appellants and issued a peremptory writ of mandamus,
commanding the city to institute appropriation proceedings. In its decision, the trial
court concluded that the construction of the “Campus View Grade Separation
1. Appellants’ mandamus action filed on February 12, 1993 also named as defendants members of
the Columbus City Council and the city attorney.
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SUPREME COURT OF OHIO
Project” resulted in a “substantial and material impairment” of appellants’ rights to
access Campus View Boulevard from their properties, and that this impairment
constituted a taking of private property. In reaching this conclusion, the trial court
stated that “[t]he right of access to and from the Subject Parcels is a property right
which grows out of the ownership of land.”
{¶ 9} Upon appeal, the Court of Appeals for Franklin County reversed the
judgment of the trial court. The court of appeals noted initially that “[a]mong the
appurtenances to ownership of land is a right of access to public streets on which
the land abuts.” However, the court of appeals determined that the construction of
the overpass did not substantially interfere with appellants’ rights to access Campus
View Boulevard from the abutting properties. The court of appeals stated that
“[m]erely rendering access less convenient or more circuitous does not by itself
constitute ‘substantial interference.’” The court of appeals also noted that “the
rights of access which OTR claims were ‘taken’ by the construction of the Campus
View overpass have never been developed; the Campus View overpass does not
interfere with any of the developed rights of access to OTR’s properties. The
driveways which provided access to the improvements on the subject properties
prior to the construction of the overpass were unaffected by the overpass and remain
fully accessible.” In this regard, the court of appeals ultimately concluded that
“[o]nly where the denial of an undeveloped right of access results in a complete
loss of access to the property or improvements on the property will the denial be
found to constitute a ‘substantial interference.’”
{¶ 10} The cause is now before this court pursuant to the allowance of a
discretionary appeal.
__________________
Benesch, Friedlander, Coplan & Aronoff, Orla E. Collier, James F.
DeLeone and Roger L Schantz, for appellants.
4
January Term, 1996
Daniel W. Drake, First Assistant City Attorney, and John C. Klein III, Chief
Real Estate Attorney, for appellees.
__________________
DOUGLAS, J.
{¶ 11} Section 19, Article I of the Ohio Constitution provides that “[p]rivate
property shall ever be held inviolate, but subservient to the public welfare. * * *
[W]here private property shall be taken for public use, a compensation therefor
shall first be made in money * * * and such compensation shall be assessed by a
jury, without deduction for benefits to any property of the owner.” Similarly, the
Fifth Amendment to the United States Constitution guarantees that private property
shall not “be taken for public use, without just compensation.”
{¶ 12} In order to establish a taking, a landowner must demonstrate a
substantial or unreasonable interference with a property right. See, e.g., State ex
rel. Taylor v. Whitehead (1982), 70 Ohio St.2d 37, 39
,24 O.O.3d 88
, 89,434 N.E.2d 732, 734
, and State ex rel. McKay v. Kauer (1951),156 Ohio St. 347
,46 O.O. 204
,102 N.E.2d 703
. Such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises. Smith v. RR. Co. (1938),134 Ohio St. 135
,11 O.O. 571
,16 N.E.2d 310
, paragraph one of the syllabus (“Under Section 19, Article I of the [Ohio] Constitution, which requires compensation to be made for private property taken for public use, any taking, whether it be physical or merely deprives the owner of an intangible interest appurtenant to the premises, entitles the owner to compensation.”). Moreover, in Mansfield v. Balliett (1902),65 Ohio St. 451
, 471,63 N.E. 86
, 92, this court observed: “The value of property consists in the owner’s
absolute right of dominion, use, and disposition for every lawful purpose. This
necessarily excludes the power of others from exercising any dominion, use or
disposition over it. Hence, any physical interference by another, with the owner’s
use and enjoyment of his property, is a taking to that extent. To deprive him of any
5
SUPREME COURT OF OHIO
valuable use of his land, is to deprive him of his land, pro tanto. So that, the
principle of the constitution is as applicable where the owner is partially deprived
of the uses of his land, as where he is wholly deprived of it. Taking a part is as
much forbidden by the constitution as taking the whole.”
{¶ 13} One of the elemental rights growing out of the ownership of a parcel
of real property is the right to access abutting public roadways. This rule is well
stated in State ex rel. Merritt v. Linzell (1955), 163 Ohio St. 97
,56 O.O. 166
,126 N.E.2d 53
, paragraph one of the syllabus, wherein this court held: “An owner of
property abutting on a public highway possesses, as a matter of law, not only the
right to the use of the highway in common with other members of the public, but
also a private right or easement for the purpose of ingress and egress to and from
his property, which latter right may not be taken away or destroyed or substantially
impaired without compensation therefor.” (Emphasis added.)
{¶ 14} In McKay, supra, 156 Ohio St. 347
,46 O.O. 204
,102 N.E.2d 703
,
paragraph two of the syllabus, we held:
“Where the grade of a street constituting a part of a state highway has been
established and the owner of the property abutting thereon has improved his
property in reliance upon and in conformity to such grade, and thereafter a highway
improvement is made upon such street by the Director of Highways of the state in
accordance with legally approved plans and specifications whereby the width of the
street or highway is narrowed and the grade of the remainder is substantially
lowered from the former grade to such extent that there is no physical access to or
from the property to the street, the owner of such property suffers a ‘taking’ of his
property and is entitled to compensation by way of damages from the state to the
extent of his loss, even though no part of the physical property is taken or
disturbed.” (Emphasis added.)
{¶ 15} In McKay, the Director of Highways entered into a contract with the
city of Youngstown and various railroad companies to reconstruct the Spring
6
January Term, 1996
Common bridge. The parcel at issue in McKay was improved with a store and
office building. The property abutted Federal street and extended south along the
east side of Spring Common. Spring Common was part of a public highway and
served as an approach from Front and Federal streets to the bridge. The
reconstruction project involved, among other things, a grade separation and the
construction of a retaining wall and railing along the front of the property. As a
result of the improvements, the property was not accessible from Spring Common.
In determining that a taking had occurred, we stated:
“Since an early day, it has been the law of this state that an owner of real
property has an easement in the public street on which his property abuts, as an
appurtenance thereto; and that if a substantial change of grade in the street upon
which the property abuts renders the buildings thereon less convenient of access
there is an appropriation pro tanto of the property right in the easement for which
compensation may be required.” Id., 156 Ohio St. at 351, 46 O.O. at 206, 102
N.E.2d at 705.
{¶ 16} Furthermore, secondary authorities recognize the well-settled legal
principle that an owner of a parcel of real estate has the right to access a public
street or highway on which the property abuts, and, if the right has been
substantially, materially or unreasonably interfered with by a public authority, the
landowner is entitled to just compensation. For instance, 39 American
Jurisprudence 2d (1968) 552-554, Highways, Streets, and Bridges, Section 178,
states:
“The right of access to and from a public highway or street is a natural
easement and one of the incidents of the ownership or occupancy of land abutting
thereon, and exists whether the fee to the way is in the public or in private
ownership. * * * Regardless of whether a large tract is subdivided, the owner or
occupant is entitled to a direct outlet on the highway for each reasonably
independent economic-use unit thereof. The right of access may serve not only the
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SUPREME COURT OF OHIO
personal comings and goings of the owner or occupant, but also his reasonable use
of the property for business purposes.
“A properly authorized governmental unit has the power to regulate,
reasonably, in the public interest, and without illegal discrimination, the extent of
an abutter’s private right of access from his property to the highway or street. The
cases hold or recognize, however, that such power of regulation does not extend to
depriving an abutting owner completely of all access to the street or highway, at
least not without compensation therefor. No fee or charge may be imposed or
exacted for the exercise of such right of access.” (Footnotes omitted.)
{¶ 17} In the case before us, both Crossgate Center and Campus View Plaza
were developed after the establishment of the grade of Campus View Boulevard.
At the time, the grade of Campus View Boulevard was relatively flat. Moreover,
appellants purchased the properties with the existing buildings prior to the city’s
commencement of the overpass project. As constructed, the overpass bridge
inclines at a five percent grade, reaches an approximate thirty-foot elevation, and
incorporates massive concrete retaining walls. The grade separation and the
concrete retaining walls preclude appellants from ever developing any access routes
onto Campus View Boulevard along the entire northern border of the Crossgate
Center property and southern border of the Campus View Plaza property. Thus,
appellants’ existing private right or easement of access to the properties via Campus
View Boulevard has been destroyed or at the very least substantially impaired. For
these reasons, we find that the trial court properly concluded that the city
effectuated a taking of appellants’ private property rights, constituting a
compensable taking within the meaning of the Ohio and United States
Constitutions.
{¶ 18} In reversing the judgment of the trial court, the court of appeals in
the case at bar noted that appellants had not established any driveways along the
properties’ frontage on Campus View Boulevard. In this regard, the court of
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January Term, 1996
appeals indicated that in order to constitute a taking, the overpass structure would
have had to interfere with an existing driveway or a “developed” access route. The
court of appeals also indicated that a taking did not occur in this case because
appellants have not been denied all access to their properties. The court of appeals
pointed out that appellants had alternate access to their parcels by way of existing
driveways.
{¶ 19} However, we find that the conclusions reached by the court of
appeals are not supported by law. We agree with appellants that the court of appeals
created, “by judicial fiat,” an arbitrary distinction between developed and
undeveloped rights of access. Although no access routes existed on Campus View
Boulevard along the frontage of either parcel at the time the overpass was
constructed, this does not diminish or negate the fact that the city interfered with an
existing property right -- the right to access Campus View Boulevard from
appellants’ abutting properties. Additionally, this court has further established that
a taking can occur even where, following the governmental action, the landowner
has not been denied all access to the property in question. See McKay, supra, 156 Ohio St. 347
,46 O.O. 204
,102 N.E.2d 703
.2 2. In State ex rel McKay v. Kauer (1951),156 Ohio St. 347
,46 O.O. 204
,102 N.E.2d 703
, this
court established that the denial of access to one abutting street can still constitute a taking of private
property regardless of the fact that there remained alternate means of access to the property in
question. In McKay, the property owner had not been denied complete access to the property
following the reconstruction project. Although Spring Common was not accessible following the
governmental action, there remained alternate means of access to the property.
Moreover, it appears from a close review of McKay that at the time of the reconstruction
project no “developed” driveways or entrances existed from Spring Common to the property. In
fact, in its brief to this court, the Director of Highways stated: “Plaintiff’s Exhibits 1 through 10
shows [sic] a relationship of plaintiff’s building and property before the improvement. It should be
noted that before the improvement there were [sic] no driveway or entrance from Spring Common
to plaintiff’s building. The fact is undisputed that the grade of Spring Common in front of plaintiff’s
building was lowered in compliance with plans and specifications approved by the defendant. The
fact is also undisputed that no land of plaintiff’s was required for this improvement. After the
improvement the fact is clear that plaintiff has no physical access from his property to Spring
Common because of the difference of grade between his property and Spring Common.” Hence,
the court of appeals’ distinction between “developed” or “undeveloped” routes of access in the case
9
SUPREME COURT OF OHIO
{¶ 20} We also note that the court of appeals further indicated that a taking
had not occurred in this case because “[m]erely rendering access less convenient or
more circuitous does not by itself constitute ‘substantial interference.’” In support,
the court of appeals cited State ex rel. Noga v. Masheter (1975), 42 Ohio St.2d 471
,71 O.O.2d 484
,330 N.E.2d 439
.
{¶ 21} In Noga, the property at issue abutted U.S. Route 422 in Trumbull
County. The property owners had direct access from their property to the
westbound lanes of Route 422, but did not have direct access to the eastbound lanes
because a divider separated the lanes of travel. In 1968, the state improved Route
422. As part of the improvement, the state widened the highway, constructed a
curb barricade along the edge of the roadway fronting the property, and also
constructed a service road providing the property owners with access to Route 422
at a distance of approximately five hundred feet from the property. All of the
improvements were constructed within the existing right of way. Claiming that the
elimination of direct access to Route 422 amounted to a taking, the property owners
sought a writ of mandamus from the trial court to order the state to institute
appropriation proceedings. The trial court denied the writ and, on appeal, the court
of appeals reversed the judgment of the trial court. We reversed the judgment of
the court of appeals, holding that “‘mere circuity of travel, necessarily and newly
created, to and from real property, does not of itself result in legal impairment of
the right of ingress and egress.’” Id. at 473
,71 O.O.2d at 485
,330 N.E.2d at 440
, quoting Merritt, supra,163 Ohio St. 97
,56 O.O. 166
,126 N.E.2d 53
, paragraph
two of the syllabus.
{¶ 22} Noga, however, is clearly distinguishable from the situation here. In
Noga, the improvements did not interfere with the property owners’ rights to access
the abutting public roadway. After the improvements, the property owners in Noga
at bar has, under the circumstances of this case, no bearing on the issue whether a taking has
occurred.
10
January Term, 1996
had access to their property along the same frontage that had abutted Route 422 via
the newly constructed service road, which abutted their property in the same
manner as Route 422 had. In the present case, the city did not construct any new
access routes along the frontage of either property. As a result of the overpass
construction, appellants in the case at bar have been completely and forever denied
access along the properties’ frontage on Campus View Boulevard. Hence, unlike
the construction project in Noga, the overpass construction here completely
eliminated appellants’ rights to access the abutting public road (Campus View
Boulevard), resulting in continued circuity of travel within appellants’ properties,
and not circuity of travel to and from the abutting properties. See, generally,
Castrataro v. Lyndhurst (Aug. 27, 1992), Cuyahoga App. No. 60901, unreported
(Judge [now Justice] Francis E. Sweeney). Thus, Noga, being factually inapposite
to this case, clearly does not apply.
{¶ 23} The law in Ohio is clear. An owner of a parcel of real property has
a right to access public streets or highways on which the property abuts. Therefore,
any governmental action that substantially or unreasonably interferes with this right
constitutes a taking of private property within the meaning of Section 19, Article I
of the Ohio Constitution and the Fifth Amendment to the United States
Constitution. McKay, supra; and Merritt, supra, 163 Ohio St. 97
,56 O.O. 166
,126 N.E.2d 53
. See, also, State ex rel. Schiederer v. Preston (1960),170 Ohio St. 542
,11 O.O.2d 369
,166 N.E.2d 748
, paragraph one of the syllabus (One of the primary purposes for the existence of a street or highway is to provide a means of access to and egress from abutting lands.); Smith v. Wayne Cty. Bd. of Commrs. (1893),50 Ohio St. 628
, 633,35 N.E. 796
, 797 (“The owner of a lot abutting on a street has
an easement in the street appendant to his lots whereby he is entitled to an
unobstructed access to and from the street, and this appendant easement is as much
property as the lot itself. This right of property vested in the owner of abutting land
is subject, however, to the right of the public to grade and improve the street. But
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SUPREME COURT OF OHIO
grades once established are presumptively permanent and cannot, it is obvious, be
changed without causing injury and confusion.”); and Crawford v. Delaware
(1857), 7 Ohio St. 459
, 471 (Public authorities of cities and towns have control over
the use, grade and regrade of streets. “But if, after establishing the grade, they block
up or cut down the street before one man’s house for the benefit of others, doing a
substantial injury, the rights of property have been invaded, and plainest principles
of justice require compensation.”).
{¶ 24} This is not a case which merely creates circuity of travel to and from
appellants’ properties. Appellants’ rights to access Campus View Boulevard from
their parcels have been completely and forever taken away as a result of the
construction of the overpass bridge.
{¶ 25} Accordingly, the judgment of the court of appeals is reversed. We
reinstate the judgment of the trial court granting the peremptory writ.
Judgment reversed.
RESNICK, F.E. SWEENEY, PFEIFER and STRATTON, JJ., concur.
MOYER, C.J., concurs in the syllabus and in the judgment of Justice Cook’s
dissenting opinion.
COOK, J., dissents.
__________________
COOK, J., dissenting.
{¶ 26} I respectfully dissent because I believe the majority’s holding to be
an unwarranted extension of the law of “takings.” While noting the requirement
that a landowner establish a substantial or unreasonable interference with a property
right in order to demonstrate a taking, the majority nonetheless announces a per se
taking whenever a landowner is denied direct access along the entire frontage of
any abutting roadway, regardless of the manner in which the property is improved.
{¶ 27} While an owner of a parcel of real estate possesses the right to access
abutting public streets, Branahan v. Cincinnati Hotel Co. (1883), 39 Ohio St. 333
,
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January Term, 1996
335, not every interference with that right constitutes a taking for which
compensation is due. In order to establish a taking, a landowner is required to
demonstrate “a substantial or material interference with property rights, as well as
a substantial or special injury.” State ex rel. Taylor v. Whitehead (1982), 70 Ohio St.2d 37, 39
,24 O.O.3d 88
, 89,434 N.E.2d 732, 734
.
{¶ 28} In Crawford v. Delaware (1857), 7 Ohio St. 459
, 469-470, this court considered the balance to be struck between a landowner’s right to access an abutting roadway and the public’s ability to grade and improve a street for the general welfare, stating: “But while we recognize this right of property in a street as incident to an adjacent lot, we must also recognize the right of the public to grade and improve the street; and the question, therefore, is under what circumstances, and to what extent, must the private right yield to the public?” The Crawford court answered its question by limiting the class of landowners entitled to compensation for interferences with access to abutting roadways to those who had made improvements and suffered substantial and material injury because of a change in the established grade.Id.
{¶ 29} In State ex rel. McKay v. Kauer (1951), 156 Ohio St. 347
,46 O.O. 204
,102 N.E.2d 703
, at paragraph two of the syllabus, this court further elaborated
on the prerequisites to recovery for interference with the property right of access to
abutting roadways by requiring that improvements to the abutting property be made
“in reliance upon and in conformity to [the established] grade.” (Emphasis added.)
{¶ 30} Perhaps the clearest enunciation of this principle comes from
Jackson v. Jackson (1865), 16 Ohio St. 163
, 168, wherein this court stated: “The
private rights of the owners of lands in the adjacent highways, upon principle, are
the same as those of the owner of lots in towns to the adjacent streets. In either
case they are, to a great extent, modified by attending circumstances. Such owner
has a private right of access to and from the street or highway; and, when he has
made improvements on his land, with direct reference to the adjoining highway as
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then established, and with reasonable reference to its prospective improvement and
enjoyment by the public, he has a private right of way, or passage, to and from the
highway as it then exists; and any substantial change in the highway, to the injury
of such passage or way, is an invasion of his private property; and this private right
extends so far as the reasonable and convenient enjoyment of such improvements
requires the use of the adjacent highway; but beyond such necessary use thereof,
the private right is merged in that of the public.” (Emphasis added.)
{¶ 31} In today’s opinion, the majority appears to retreat from the
requirement that a landowner seeking compensation prove substantial or material
injury to improvements that are made in reliance on an established grade, and
instead requires only that the land be improved.
{¶ 32} The majority cites McKay, supra, as being illustrative of its
conclusion. While it is true that McKay involved a roadway alteration that resulted
in the complete denial of direct access to and from the property along the property’s
frontage on Spring Common, that alone did not compel the McKay court to find
that there was a taking. Instead, the McKay court additionally required a finding
that the landowner had made improvements to the property in reliance on the
existing grade. McKay, at paragraph two of the syllabus. In particular, the court
noted that a large store and office building, with frontage upon Spring Common,
had been erected on the subject premises with reference to the previously existing
grade and access thereto.3 Id. at 348, 46 O.O. at 204, 102 N.E.2d at 704.
3. The majority notes a passage from the McKay respondent’s brief in an attempt to demonstrate
that, in that case, there were no ‘“developed’ driveways or entrances” from Spring Common prior
to the roadway alteration. However, that fact is of little consequence. “Improvements” made in
reliance on an existing grade can be erections on the land, Crawford, supra, driveways, entrances,
and loading docks, Norwood v. Forest Converting Co. (1984), 16 Ohio App.3d 411
, 16 OBR 481,476 N.E.2d 695
; Akron-Selle Co. v. Akron (1974),49 Ohio App.2d 128
,3 O.O.3d 186
,359 N.E.2d 704
, or any other valuable addition to property. Black’s Law Dictionary (6 Ed.Rev.1990) 757. What
is important is that such improvements actually be in existence prior to the roadway alteration and
that they be made in reliance on the established grade.
14
January Term, 1996
{¶ 33} OTR, on the other hand, has failed to demonstrate that any of its
improvements were made on reliance of the previously existing grade of Campus
View Boulevard. Despite construction of the overpass, all OTR access routes to
and from Campus View Boulevard remain exactly as they were before the project
was started.4 Moreover, there is every indication that since completion of the
overpass project appellants’ properties are being used in exactly the same fashion
as before commencement of the project.
{¶ 34} There was no evidence before the trial court that either office
building was sited on the subject properties in such a manner that loss of potential
access from points contiguous to the overpass constituted a substantial interference
with its use and enjoyment. At trial, appellants produced two appraisers and an
architect who testified that, as a result of construction of the overpass, the
appellants’ property had decreased in value. The majority of that testimony,
however, related to loss of view, increase in traffic flow and other factors unrelated
to access. In order to constitute a taking, a “substantial interference” must relate to
access to an improvement and not diminution in value related to loss of a property
It would appear from the facts of McKay that improvements—a large store and office
building—were erected with reference to the established grade of Spring Common in such a manner
as to take advantage of pedestrian traffic and allow pedestrians a means of access.
4. The majority states its agreement with OTR that the court of appeals created, “‘by judicial fiat,’
an arbitrary distinction between developed and undeveloped rights of access.” I disagree with that
characterization, as it is my belief that the appellate court’s analysis was grounded in the applicable
law. A developed right of access is necessarily an improvement to land made in reference to the
established grade of an abutting street. Accordingly, even in the absence of evidence that erections
on the land were made with direct reference to Campus View Boulevard as established, a developed
route of access that is taken away or impaired may produce the “substantial interference” necessary
to constitute a taking.
In this case there was no evidence that either building owned by OTR was sited or improved
in reference to future direct access to Campus View Boulevard. Further, there were no access routes
actually in existence that were affected by the change of grade. Therefore, the court properly
concluded that there were no improvements to the subject properties existing at the time of the
roadway alteration for which the trial court could have found a “substantial interference” with the
right to access.
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SUPREME COURT OF OHIO
owner’s view, a change in the traffic pattern, or the like. State ex rel. Schiederer v.
Preston (1960), 170 Ohio St. 542
, 544-546,11 O.O.2d 369
, 370-371,166 N.E.2d 748
, 750-751; State ex rel. Merritt v. Linzell (1955),163 Ohio St. 97
,56 O.O. 166
,126 N.E.2d 53
, paragraph three of the syllabus; Hurst v. Starr (1992),79 Ohio App.3d 757, 763
,607 N.E.2d 1155, 1158-1159
.
{¶ 35} The only testimony concerning loss of access to improvements
existing on appellants’ property that was caused by construction of the overpass
related to appellants’ loss of flexibility in developing direct access routes to
Campus View Boulevard at some future time. In particular, appellants produced
testimony that if the building on the northern property is converted from single-
tenant to multiple-tenant use, additional access routes to Campus View Boulevard
would become desirable.
{¶ 36} Trial testimony established that the office building on the northern
property was constructed as a single-tenant building, which required only the
previously existing access route for that use. There was no evidence that the office
building had ever been used for multiple tenancy or that anything particular to its
design or siting compelled such use. Instead, appellants merely argue that
construction of the overpass along the frontage of their properties might cause a
future inconvenience if they choose to alter the use of their property.
{¶ 37} “However, the fact that property is rendered less desirable as a result
of the governmental activity does not in and of itself constitute a taking so as to
entitle the owner thereof to compensation.” McKee v. Akron (1964), 176 Ohio St. 282
, 285,27 O.O.2d 197
, 199,199 N.E.2d 592
, 594, overruled on other grounds in Haverlack v. Portage Homes, Inc. (1982),2 Ohio St.3d 26, 30
, 2 OBR 572, 575,442 N.E.2d 749, 757
. In determining whether there has been a taking in the instant
case, we need only consider whether the property owner has been deprived of
meaningful access to improvements made in reliance on the previously existing
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January Term, 1996
grade and in relation to the use to which the property has been devoted. See State
ex rel. Pitz v. Columbus (1988), 56 Ohio App.3d 37, 42
,564 N.E.2d 1081, 1086
.
{¶ 38} In arriving at its conclusion, the majority cites the first paragraph of
the syllabus in State ex rel. Merritt v. Linzell (1955), 163 Ohio St. 97
,56 O.O. 166
,126 N.E.2d 53
, as controlling. When read in isolation, that statement indeed
appears to be dispositive of this case. However, in light of the factual scenario
before the court in Merritt and the court’s ultimate disposition of that case, I believe
that the rule of law therein set forth is incomplete for application to this case.
{¶ 39} In Merritt, the landowners sought compensation for a taking where
the Director of Highways relocated a portion of U.S. Highway No. 50 (“U.S. 50”)
so that it no longer abutted the landowners’ property. The abandoned portion of
U.S. Highway No. 50 (“old 50”) continued to be maintained as a county highway
and the landowners maintained exactly the same access thereto as when the abutting
roadway was designated as part of the U.S. highway. Access lanes were built
connecting the abandoned portion of the highway with the new stretch of U.S. 50.
{¶ 40} The landowners sought compensation for a taking, claiming that
their easement of access was destroyed by the relocation of U.S. Highway 50, that
the old highway upon which their property continued to abut was no longer a
publicly traveled highway, and that, as a result, they had suffered a legal wrong for
which compensation was due. The issue of whether the landowners had improved
their property in reliance of the established grade was not at issue, as the grade of
old 50 had not been altered. Nevertheless, the Merritt court was careful to point
out that the landowners had improved their land by erecting a gas and oil filling
station, a store, and a restaurant at the grade of and abutting on old 50.
{¶ 41} The Merritt court concluded that there was no taking because (1) a
landowner suffers no legal impairment of the right to access where the means of
ingress and egress remain unaffected by relocation of a highway, id.
at paragraph
two of the syllabus, and (2) an abutting landowner has no property right in the
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SUPREME COURT OF OHIO
continuation or maintenance of the flow of traffic past his property. Id.
at paragraph
three of the syllabus. Because Merritt did not involve a change of grade, and there
was no dispute that the landowners had improved their property in direct relation
to old 50, an analysis of the landowners’ reliance on the established grade of old 50
in making improvements to the property was unnecessary.5 Accordingly, upon
close review, Merritt becomes less compelling as controlling authority.
{¶ 42} It is clear that this court in Merritt did not abandon the requirement
that an abutting property owner seeking compensation for a taking demonstrate a
“substantial interference” with the right to access improvements that are made in
reliance to an established grade of a roadway, as that requirement has been restated
in subsequent cases. See, e.g., State ex rel. Schiederer v. Preston (1960), 170 Ohio St. 542
, 545,11 O.O.2d 369
, 371,166 N.E.2d 748
, 751. OTR has failed to establish that either of its properties was improved in reliance on future access being available at the previously existing grade of Campus View Boulevard or that the change of grade renders the means of access that it once enjoyed any less convenient. See Lotze v. Cincinnati (1899),61 Ohio St. 272
. Accordingly I would
affirm the judgment of the court of appeals.
__________________
5. In fact, the Merritt court expressly distinguished the line of cases which includes Crawford and
McKay as inapposite, stating: “[T]he facts in the instant case do not show the impairment of the use
of the highway on which relators’ property abuts, but only the opening of a new highway which
diverts public travel from the old highway. The cases above noted and cited by relators [including
Crawford and McKay] are not applicable to such a situation.” 163 Ohio St. at 102, 56 O.O. at 168,
126 N.E.2d at 55-56.
18