Bd. of Cnty. Comm'rs v. Prindle

[Cite as Bd. of Cty. Commrs. v. Prindle, 2018-Ohio-1452.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
THE BOARD OF COUNTY : OPINION
COMMISSIONERS,
:
Plaintiff-Appellee, CASE NOS. 2016-T-0117
: 2016-T-0118
- vs -
:
VINCENT PRINDLE, et al.,
:
Defendants-Appellants.
:
Civil Appeals from the Trumbull County Court of Common Pleas, Case Nos. 2015 CV
02094 and 2014 CV 00354.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor,
160 High Street, N.W., Warren, OH 44481; and James M. Brutz, Assistant Prosecutor,
842 Youngstown-Kingsville Road, Vienna, OH 44473 (For Plaintiff-Appellee).
Frank R. Bodor, 157 Porter Street, N.E., Warren, OH 44483 (For Defendants-
Appellants).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellants, Vincent Prindle and Vickie Prindle, appeal the judgment of the
Trumbull County Court of Common Pleas in favor of appellee, The Board of County
Commissioners (“the county”), denying appellants’ complaint for a writ of mandamus.
At issue is whether the trial court abused its discretion in denying the writ and in finding
that appellants failed to present clear and convincing evidence of a permanent taking of
access rights to their property. For the reasons that follow, we affirm.
{¶2} On February 19, 2014, the county filed, in Case No. 2014-CV-00354, a
petition for appropriation of a temporary easement on appellants’ commercial real
property located on High Street in Cortland to perform the work necessary to
reconstruct a walk, drive, parking lot, and grading in connection with a county road-
widening project. The easement was to last for 18 months from the date of entry by the
county. Appellants filed an answer denying the material allegations of the complaint.
{¶3} While the appropriation case was pending, the road-widening project
began in late October 2014, and was completed one month later in late November
2014.
{¶4} On November 25, 2015, after the county’s appropriation case had been
pending for nearly two years, appellants filed, in Case No. 2015-CV-02094, a separate
action for a writ of mandamus. They alleged that, during the county’s use of the
temporary easement, it installed curbing along appellants’ property in the road right of
way. They alleged the curbing blocks appellants’ vehicular access to the building on the
property. Appellants demanded a writ of mandamus to compel the county to amend its
appropriation action to include a taking of appellants’ access rights. The county filed an
answer denying the material allegations of the complaint.
{¶5} On March 16, 2016, the trial court consolidated the county’s appropriation
action with appellants’ mandamus action. Each case had its own trial docket until the
two actions were consolidated, after which, the case proceeded on the appropriation
case docket. Following a trial, the court resolved the mandamus action by a judgment
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entered pursuant to Civ.R. 54(B), and the appropriation action remains pending. On
appeal, appellants filed two notices of appeal, one for each of the cases. Both notices
state that the judgment being appealed is the court’s judgment denying appellants’
complaint for a writ of mandamus. While the appeals were pending, this court, sua
sponte, consolidated them for all purposes, and the parties’ respective briefs included
both appellate case numbers. The only issues raised on appeal involve the mandamus
action.
{¶6} The matter was referred to the magistrate, who held a trial on appellants’
complaint for mandamus on July 14 and 15, 2016.
{¶7} Vincent Prindle testified that he took title to the property as a gift from his
mother-in-law in 2009. He said that the store-front building on the property was built in
1960 by his father-in-law, and that since that time it has been used as a laundromat, a
church, a music store, and, finally, a used furniture store operated by appellants’ most
recent tenant, Patti Keller.
{¶8} Mr. Prindle said that, before the construction project, there was no curbing
in front of the property. He said that during the project, curbing was installed along the
front of the property, except for access to the parking lot on the north (left) side of the
building. He said that at the front of the building, there is a ramp leading to the main
entrance, which is a set of double doors. He said that, due to the curb, there is no way
to drive directly from the street to the ramp for loading/unloading. He said that for this
reason, Ms. Keller moved out of the building.
{¶9} Mr. Prindle said the parking lot on the north side of the building continues
to provide ingress and egress for the building. He said the building can still be entered
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through the ramp and main entrance at the front of the store. He said the building can
also be accessed through a door on the north side of the building. He said he could not
recall if he lost any parking spots in the parking lot due to the project. He said that
before the construction project, patrons of the property who parked in front of the
building exited the property by backing into the road. He was not aware of Cortland’s
ordinance prohibiting this practice.
{¶10} Mr. Prindle said that since Ms. Keller left the building in September 2014,
he has not listed the property for sale or rent and he now uses the building for storage.
{¶11} Patti Keller testified she owns a used furniture business. She said she
operated her business out of appellants’ building from 2009 to September 2014.
{¶12} Ms. Keller said that before the road-widening project, she used the ramp
in front of the main entrance to load and unload furniture by backing her box truck from
the road onto the ramp. She said her employees then brought the furniture down the
ramp and put it in the truck. She said that before the project, there were two parking
spaces in front of the building. She also had full use of the parking lot.
{¶13} Ms. Keller said that she moved out of the building in late September 2014,
when she saw the future plans for the project, which included the installation of curbing
along the front of the store. She said she moved out within days of seeing these plans
because she would no longer be able to load/unload her truck at the main entrance and
she would lose the two parking spaces in front of the store. Work on the project did not
begin until late October 2014, one month after she moved out.
{¶14} Gary Shaffer, Trumbull County Deputy Engineer and project manager for
the road-widening project, testified that the county used the temporary easement in front
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of the building to store materials and equipment. Although the term of the easement
was for 18 months, the county only used it for about one month from October 30, 2014
to November 26, 2014, when work on the project was completed.
{¶15} Mr. Shaffer said that the county can do virtually anything it chooses for the
public good within the road right-of-way.
{¶16} Mr. Shaffer said that during construction of the project, a six-inch curb was
built at the edge of the road within the right of way along the frontage of appellants’
property, except for the entrance to the parking lot on the north side of the building.
Next to the curb, a two-foot wide tree lawn and then a sidewalk were installed. He said
the right-of-way extends one foot past the edge of the sidewalk, which means the right
of way comes right up to the base of appellants’ ramp.
{¶17} While Mr. Shaffer testified that the curbing is an obstruction to the front of
the building, he also said that, after the project, the driveway leading to the parking lot
continues to provide ingress and egress access to the property.
{¶18} Donald Whitman, Cortland Safety Director, who is also a professional
engineer and attorney, testified that curbing was installed to match curbing installed on
other streets in the city consistent with Ohio Department of Transportation policies. He
said that during the design process for the instant project, a public meeting was held on
December 5, 2011, to solicit public comment from affected property owners and that Mr.
Prindle attended that meeting. Mr. Whitman said that during the meeting, plans were
displayed for the public, depicting the proposed curbing in front of appellants’ property.
Mr. Prindle admitted that he attended the meeting; that he was provided with a copy of
the plans; and that he never complained about the proposed curbing.
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{¶19} Mr. Whitman said that curbing is a standard practice according to the Ohio
Department of Transportation Location and Design Manual for urban roads with low
speed limits. He said that since the speed limit is 35 mph in the area, curbing was
necessary for the safety of vehicular movement.
{¶20} Mr. Whitman referenced Cortland Ord. 1125.09(d), effective 1996, which
provides: “All [commercial] off-street parking * * * shall be designed so that vehicles can
turn around within the area and enter the street, road, or highway in such a manner as
to completely eliminate the necessity of backing into the street, road, or highway.” Mr.
Whitman said that Ord. 1125.09(d) “requires businesses to have a parking area design
so that vehicles can turn around completely on that property prior to entering the road
right of way [to] eliminate the necessity of backing into the street, road, or highway.”
(Emphasis added.) He said the purpose of this ordinance is for the safety of the
motoring public.
{¶21} Further, Ord. 1125.09(e) requires that commercial property owners
provide off-street parking spaces in compliance with the dimensions specified.
{¶22} Mr. Whitman said that appellants did not lose any parking spaces in front
of the building as a result of the curbing because, even before the curbing, the front of
the building could not legally be used for parking. This is because backing a car out into
the road (which Mr. Whitman indicated would be necessary to enter the road) would
violate the city’s parking regulations.
{¶23} Mr. Whitman said that when a new business comes into the city, he
explains the parking requirements to the owner. He said that when Ms. Keller moved in,
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he told her she could not park in front of the building and that she could only park in the
parking lot.
{¶24} On July 25, 2016, the magistrate issued her decision recommending that
the writ of mandamus be denied. In support, the magistrate found that, after the
construction, access remains to the frontage of the property and that, as such, access
to the property from High Street was not destroyed or substantially impaired. Further,
the magistrate found that parking in front of the building was prohibited by the city’s
parking ordinances.
{¶25} Appellants filed objections to the magistrate’s decision. The court
overruled the objections and adopted the magistrate’s decision. The court found that
appellants failed to show they had a clear legal right to a writ of mandamus and denied
the writ. The court made the finding under Civ.R. 54(B) that there is no just reason for
delay, making its judgment a final, appealable order. Appellants appeal the trial court’s
judgment, asserting three assignments of error. Because the assigned errors are
related, they are considered together. They allege:
{¶26} “[1.] The magistrate and trial court committed prejudicial error and abused
its [sic] discretion in determining that access to the Prindles’ property from High Street
was not destroyed or substantially impaired.
{¶27} “[2.] The magistrate and trial court committed prejudicial error and abused
their discretion in applying city of Cortland Ordinance 1125.09(d) to deprive the owners
of a writ of mandamus for the taking of their access rights.
{¶28} “[3.] The magistrate and trial court committed prejudicial error and absued
[sic] its [sic] discretion in applying Cortland Ordinance 1125.02 and 1125.09 and
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determining that the owners [sic] use of the parking spaces did not constitute a non-
conforming use as a reason to deprive the owners of a writ of mandamus for the
blocking of its access.”
{¶29} The Tenth District, in State ex rel. BDFM Co. v. Ohio Department of
Transportation, 10th Dist. Franklin No. 11AP-1094, 2013-Ohio-107, stated:
{¶30} In the context of a taking, “The United States and Ohio
Constitutions guarantee that private property shall not be taken for
public use without just compensation. * * * Mandamus is the
appropriate action to compel public authorities to institute
appropriation proceedings where an involuntary taking of private
property is alleged.” State ex rel. Shemo v. Mayfield Hts., 95 Ohio
St.3d 59, 63 (2002) * * *. Because “[m]andamus is an extraordinary
writ that must be granted with caution,” a party seeking a writ of
mandamus must “establish entitlement to the requested
extraordinary relief by clear and convincing evidence.” State ex rel.
Liberty Mills, Inc. v. Locker, 22 Ohio St. 3d 102, 103 (1986); State
ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio
St.3d 139, 2012-Ohio-4246, ¶16 * * *. BDFM at ¶14.
{¶31} Further, this court, in RG Steel Warren, L.L.C. v. Biviano, 11th Dist
Trumbull No. 2014-T-0064, 2015-Ohio-5463, ¶59, stated:
{¶32} In order to be entitled to a writ of mandamus, a relator must
establish: (1) a clear legal right to the relief sought, (2) a clear legal
duty on the part of the respondent to perform the requested act,
and (3) the lack of an adequate remedy in the ordinary course of
the law. State ex rel. United Auto., Aerospace & Agricultural
Implement Workers of Am. v. Bur. of Workers’ Comp., 108 Ohio
St.3d 432, 2006-Ohio-1327, ¶34. The relator bears a heavy burden
in a mandamus case and must submit facts and produce proof that
is plain, clear, and convincing before a court is justified in using the
“strong arm of the law” by granting a writ of mandamus. State ex
rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St. 2d 141, 161
(1967). Further, mandamus is * * * issued only when the right and
duty are absolutely clear; the writ will not issue in doubtful cases.
State ex rel. E. Cleveland v. Norton, 8th Dist. Cuyahoga No. 98772,
2013-Ohio-3723, ¶2, citing State ex rel. Taylor v. Glasser, 50 Ohio
St.2d 165 (1977). (Emphasis added.)
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{¶33} Thus, appellants, as the parties seeking a writ of mandamus, had the
burden to prove their entitlement to the writ by clear and convincing evidence. As such,
they were required to prove that they had a clear legal right to compensation for a
permanent taking of access rights to their property; that the county had a clear legal
duty to compensate them for such alleged taking; and that appellants had no adequate
remedy at law.
{¶34} With respect to the issues presented here, the Tenth District, in Vineyard
Fellowship v. Anderson, 10th Dist. Franklin Nos. 15AP-151, 15AP-230, 2015-Ohio-
5083, discussed the city’s authority under a public right-of-way, as follows:
{¶35} The term “right-of-way” “is generally understood as referring to the
easement acquired by the public in that portion of the land of the
owner thereof over which a road or highway passes, with all the
powers and privileges that are necessarily incident to such
easement.” 1988 Ohio Atty.Gen.Ops. No. 88–080 * * *.
{¶36} * * *
{¶37} [N]ormally this right-of-way would include the shoulder or berm.
R.C. 4511.01(UU)(2) defines “[r]ight-of-way” as “[a] general term
denoting land, property, or the interest therein, usually in the
configuration of a strip, acquired for or devoted to transportation
purposes. When used in this context, right-of-way includes the
roadway, shoulders or berm, ditch, and slopes extending to the
right-of-way limits under the control of the state or local authority.”
{¶38} * * *
{¶39} In Ohio, “while the public has the right of improvement and
uninterrupted travel, the abutting owner has the right to all uses of
the land not inconsistent with this right of travel and improvement.”
Callen v. Columbus Edison Elec. Light Co., 66 Ohio St. 166, 172
(1902). “‘ * * * The abutting owner has every right to all uses of the
land not inconsistent with such right of improvement and travel, or
with the rights of access thereto of other abutting owners.’” Miller v.
Berryhill Nursery Co., 7 Ohio App. 2d 30, 33 (2d Dist.1966), quoting
27 Ohio Jurisprudence 2d 207, Highways and Streets, Section 165.
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{¶40} The easement for a public highway includes the right to construct,
maintain, and improve a safe and convenient roadway. “The [City]
has the right to improve and use the land upon which a common
highway has been established.” State ex rel. E. Ohio Gas Co. v.
Bd. of Cty. Comm. of Stark Cty., 5th Dist. Stark No. 2012 CA
00019, 2012-Ohio-4533, ¶40.
{¶41} There was testimony in the record that the City could install
sidewalks along Cooper Road and, under Ohio law, the sidewalk
would then also be considered part of the street and the public
right-of-way. * * * Pretzinger v. Sunderland, 63 Ohio St. 132, 140
(1900) (sidewalk considered part of street). (Emphasis added.)
Vineyard, supra, at ¶28-35.
{¶42} Since the grant or denial of a writ of mandamus necessarily requires the
trial court to exercise discretion, an appellate court reviews such decision under the
abuse of discretion standard. BDFM at ¶13.
{¶43} I. THE RAMP AND MAIN ENTRANCE TO THE BUILDING
{¶44} Here, the trial court, in adopting the magistrate’s decision, found: “In the
case at bar, after construction there remains access to the frontage of the property to
the north of the building. As such, the [court] cannot find that access to the property
from High Street was destroyed or substantially impaired.”
{¶45} Appellants do not dispute that they still have access to the parking lot as
well as the ramp and main entrance to the building. Rather, they argue the county’s
installation of curbing during the project destroyed their access from the street directly to
the ramp/main entrance for loading/unloading without creating an alternative access.
However, appellants’ argument lacks merit because they still have access to the
ramp/main entrance from High Street just a few feet to the left of the ramp.
{¶46} Photographs of the front of the building, taken after construction was
completed, show a large paved area between the driveway (leading to the parking lot)
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and the ramp (leading to the main entrance). These photographs show the driveway
provides direct and unobstructed access from the street to the side of the ramp. The
driveway and paved area next to the ramp are clearly large enough and close enough to
the ramp for a truck to back up to the side of the ramp. Cortland Safety Director
Whitman testified the city’s parking regulations allow vehicles to back into a driveway or
parking lot of a business from the street. Thus, after the construction project, appellants
and users of their property can back their trucks from the street into the driveway and
then to the side of the ramp to be loaded or unloaded. They can then legally exit the
property by driving forward into the street.
{¶47} Ms. Keller testified that her box truck would “back up to the ramp” and “we
would bring stuff down the ramp this way and [put it] into the box truck.” With the truck
backed up to the side of the ramp, appellants can just as easily load or unload the truck
from that location. Thus, contrary to appellants’ argument, the curbing did not prevent
them from using the ramp and main entrance to load and unload merchandise. As a
result, there was no taking because, after the construction, trucks can still be loaded
and unloaded at the ramp.
{¶48} Appellants’ reliance on State ex rel. OTR v. Columbus, 76 Ohio St. 3d 203
(1996), and Hilliard v. First Industrial, L.P., 158 Ohio App. 3d 792, 2004-Ohio-5836 (10th
Dist.), is misplaced as those cases are easily distinguishable. In OTR, the Court held
that re-grading of the city street resulted in a taking because it prevented an abutting
business owner from ever having access to the street. Id. at 209. In Hilliard, a taking
occurred where the city’s construction project destroyed a road leading to the property’s
loading dock without creating an alternative road to the dock. Id. at 794.
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{¶49} II. PARKING IN FRONT OF THE BUILDING
{¶50} Turning now to appellants’ argument that the county has deprived them of
the right to use the front of their building for parking, this argument also lacks merit.
{¶51} The trial court found that because appellants took title to the property in
2009, which was long after the effective date of Ord. 1125.09, that ordinance applies to
them. Appellants essentially make two arguments in support of their position that they
are entitled to park in front of the building. Under the first, they argue that, without the
curbing, they could comply with Ord. 1125.09(d). Under the second, they argue this
ordinance does not apply to them. Both arguments lack merit.
{¶52} First, appellants try to show that, without the curbing, it was possible to
design parking so as to comply with Ord. 1125.09(d). As noted above, that section
requires that all off-street commercial parking “be designed so that vehicles can turn
around within the area and enter the street * * * in such a manner as to completely
eliminate the necessity of backing into the street * * *.”
{¶53} Appellants argue that, before the curbing, vehicles parked in front of the
building could be angled in such a way as to avoid encroaching in the right-of-way. In
making this argument, they rely on Deputy Engineer Shaffer’s testimony that if vehicles
were parked at a “severe” angle (nearly parallel to the front of the building), they could
avoid being in the right-of-way. However, even if parking at an angle would avoid
encroaching in the right-of-way, this does not mean cars would have enough room to
turn around on appellants’ property before entering the street without backing into it, as
required by the ordinance.
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{¶54} Since the right of way comes right up to the ramp making it impossible for
appellants to turn around on their property, they argue the ordinance should be
interpreted to allow them to back up into the right-of-way and use both their property
and the right-of-way to turn around before entering the street. However, according to
the clear terms of the ordinance, vehicles are required to turn around on the owner’s
property before they enter the street. Further, nothing in the ordinance suggests the
right of way can be used to turn around. According to Safety Director Whitman, the
right-of-way is owned by the city. Thus, it is to be used for public uses, such as streets,
curbs, tree lawns, and sidewalks, not for private uses. If the right-of-way could be used
to turn around, this would defeat the purpose of the ordinance – to promote the safety of
the motoring public. Further, as Mr. Whitman said, Ord. 1125.09(d) requires businesses
like appellants’ to have a parking area design so that vehicles can turn around
“completely” on that property before exiting the property.
{¶55} Further, pursuant to the case law outlined above, the city had the right to
install the curb, tree lawn, and sidewalk within the right-of-way and, once installed,
appellants could not use the right-of-way to turn around because this would be
inconsistent with the city’s right of improvement and uninterrupted travel. Vineyard,
supra.
{¶56} We agree with the trial court’s finding that appellants failed to prove that,
without the curbing, it is possible to design parking spots in front of the building so that
vehicles could turn around within the area and enter the street without having to back
out, as required by Ord. 1125.09(d). Thus, appellants had no right to park in front of the
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building and the city’s improvement project did not result in a taking of such alleged
right.
{¶57} We also agree with the trial court’s finding that appellants failed to prove
they were entitled to park in front of the building because they failed to prove that
parking there could satisfy the size requirements for parking spaces in Ord. 2511.09(e).
{¶58} Second, appellants argue (somewhat awkwardly) that since the prior
tenants were commercial, they, i.e., appellants, should be permitted to park in front of
the building as a nonconforming use without having to comply with Ord. 1125.09(d).
{¶59} A nonconforming use is a lawful use of property in existence at the time of
enactment of a zoning ordinance that does not conform to the requirements under the
new ordinance. Janson v. John Bininato, Zoning Inspector, 11th Dist. Ashtabula Nos.
2015-A-0039 and 2015-A-0040, 2016-Ohio-2796, ¶24. Appellants fail to cite any case
law holding that the nonconforming use doctrine applies to matters of public safety,
such as regulations prohibiting the practice of backing out into a public street. Further,
appellants failed to prove that at the time Ord. 1125.09(d) was enacted, parking in front
of the building was lawful, i.e., that it was in compliance with all land use or other
applicable regulations. Moreover, Mr. Whitman indicated that any such use was
abandoned under Ord. 1125.02 because, after 1125.09(d) was enacted, the property
was vacant for more than two years before Ms. Keller moved in. We therefore agree
with the trial court’s finding that appellants failed to prove that parking in front of the
building constitutes a nonconforming use allowed under Ord. 1125.02.
{¶60} Further, appellants’ argument that Ord. 1125.02(b), which provides that a
nonconforming use may be changed to a conforming use, is irrelevant. This provision
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applies when a property owner uses a parcel for a nonconforming use (e.g., a
commercial use in a district zoned residential) and later decides to use the property for
a residential use. Under Ord. 1125.02(b), the residential use would be allowed.
However, since there is no dispute that appellants’ property is zoned commercial and
has previously been used for commercial purposes, Ord. 1125.02(b) does not apply.
{¶61} Finally, appellants argue that Ord. 1125.09(d) is unconstitutional because
it confiscates appellants’ alleged “back-out” rights without compensation. However, the
issue was not litigated in trial and appellants fail to demonstrate on appeal that they had
a right to back out into the street or that Ord. 1125.09(d) is unconstitutional.
{¶62} Based on the record, the trial court did not abuse its discretion in denying
appellants a writ of mandamus and in finding they failed to present clear and convincing
evidence that the county destroyed or substantially impaired their access to the main
entrance or to the front of the building for parking.
{¶63} For the reasons stated in this opinion, the assignments of error are
overruled. It is the order and judgment of this court that the judgment of the Trumbull
County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, P.J., concurs in judgment only,
COLLEEN MARY O’TOOLE, J., dissents.
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