City of Dublin v. Beatley

[Cite as Dublin v. Beatley, 2018-Ohio-3354.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
CITY OF DUBLIN, : JUDGES:
: Hon. W. Scot Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JACK K. BEATLEY, et al., : Case No. 18 CAE 01 0007
:
Defendants - Appellants : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
17 CVH 04 0269
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 21, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendants-Appellants
PHILIP K. HARTMANN KEVIN E. HUMPHREYS
YAZAN S. ASHRAWI 332 W. 6th Avenue
Frost Brown Todd LLC Columbus, Ohio 43201
10 West Broad Street, Suite 2300
Columbus, Ohio 43215
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
Delaware County, Case No. 18 CAE 01 0007 2
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,
Delaware County, Case No. 18 CAE 01 0007 3
Appellant attended the City Council meeting on that date and made his opposition to the
Project clear. On August 4, 2016 Appellee served a notice of intent to acquire and good
faith offer letter (the “notice”) as well as a copy of the city’s appraisal report on Appellant
personally. Because there was no agreement regarding the appropriation of the property
interests of the Appellant, Appellee filed its petition for appropriation in the Delaware
County Court of Common Pleas. Appellant filed a motion to dismiss the petition and the
trial court denied that motion. On November 21, 2017, Appellant filed his answer
challenging the necessity of the appropriation as well as Appellee’s right to make the
appropriation. The Appellee requested the trial court set a hearing to determine these
challenges pursuant to the requirements of R.C. 163.09 (B)(1) which states that the trial
court “shall set a day, not less than five nor more than fifteen days from the date the
answer was filed to hear these matters.” (Emphasis added). A hearing was scheduled for
Friday, December 1, 2017.
{¶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 territory 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.
Delaware County, Case No. 18 CAE 01 0007 4
{¶7} Appellant testified and presented several exhibits. He claimed the project
would interfere with access to his property and suggested that the Appellant should
consider a different location for the path. He also expressed the concern that the path
would be installed within fifteen feet of the face of his house, placing him in violation of
local setback requirements. Appellant conceded on cross-examination that he had “not
been able to come to an agreement with the City of Dublin about the proposed acquisition”
(Tr, page 92, l. 17-19) and contended that the Appellant could construct the shared use
path within the current easement without acquiring any additional property interest from
Appellee.
{¶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.”
Delaware County, Case No. 18 CAE 01 0007 5
{¶12} “IV. THE TRIAL COURT ERRED IN ITS DETERMINATION THAT DUBLIN
ESTABLISHED THAT THE TAKING WAS NECESSARY.”
{¶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 R.C. 163.04(E).”
{¶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 credible 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 appropriation, 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
Delaware County, Case No. 18 CAE 01 0007 6
& 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 Chapter 163 of the Ohio Revised Code
requires notice of the appropriation as well as service of copy of the appraisal prior to that
“legislative appropriation.” Further, Appellant contends the trial court had no subject
matter jurisdiction because the Appellee did not serve a copy of the appropriate
documents upon the mortgagee of the property.
{¶17} With regard to the failure to include the mortgagee as a party and serve it
notice, R.C. 163.12 addresses that issue in favor of the court maintaining subject matter
jurisdiction. “Since the trial court is able to cure any defect in the appropriation process,
including notice to a party in interest, through the application of R.C. 163.12, thereby
protecting the due process rights of the landowner, it cannot be said that non-compliance
with the notice provision contained in R.C. 719.05 divests the trial court of subject matter
Delaware County, Case No. 18 CAE 01 0007 7
jurisdiction.” City of Alliance v. Zellweger, 5th Dist. Stark No. 2000CA00093, 2001 WL
256319, *3. Consequently, the assertion that the court had no subject matter jurisdiction
as a result of not including the mortgagee fails. We note that the record does reflect that
the Appellee has requested leave to add the mortgagee and the court has granted said
leave pending resolution of this appeal.
{¶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 to 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 Chapter 163 may be of little precedential value. We therefor find that
Appellant’s reliance on a common pleas court case, Ohio Water, supra, which has no
binding effect on this court and was decided prior to the codification of the appropriation
process is inapposite. Further, Ohio Water does not address the timing of the notice as
suggested by Appellant, but rather whether property can be added to the appropriation
between the adoption of a resolution of intent to appropriate and the subsequent adoption
of the appropriation ordinance. Consequently, we are unwilling to accept Appellant’s
unsupported interpretation of the relevant Revised Code sections as establishing a
Delaware County, Case No. 18 CAE 01 0007 8
“legislative appropriation” that is effective upon adoption of the ordinances and which
must be preceded by the appropriate notices to the property owners. Sections 719.05
and 163.04 describe the service of the relevant documentation upon the owner of the
property after the adoption of legislation and no less than 30 days prior to filing the
petition, respectively. We find Appellant’s argument that a different rule should apply
unpersuasive and that the Appellee complied with the statutory requirements.
{¶20} Appellant’s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶21} Appellant contends in his second assignment of error that R.C. 719.01 (A)
is an all-inclusive list of the purposes for which Appellee may appropriate property and,
in support of his argument Appellant offers cases which were decided long before the
codification of the appropriation procedure. He contends that the description of the use
as a multi-use path is not permitted because it does not appear within R.C. 719.01 (A)
and because it is insufficiently specific.
{¶22} Appellant does not cite to precedent that clearly supports his contention that
the Appellee is restricted to the uses described in R.C. 719.01 and the language of the
statute and relevant case law do not support that conclusion. Revised Code 719.01 states
that “any municipal corporation may appropriate, enter upon, and hold real estate within
its corporate limits” and thereafter lists a number of purposes, but includes no language
limiting appropriation to these categories. The municipality’s right to appropriate is not so
limited. “[T]his section is not a limitation on the rights of a municipal corporation in Ohio
to appropriate and use private property for public use when such property has been
determined by the municipality's legislative authority, in the reasonable exercise of its
Delaware County, Case No. 18 CAE 01 0007 9
discretion, to be necessary for ‘public use.’ Doering v. City of S. Euclid, 112 Ohio App.
177, 183, 84 Ohio Law Abs. 245, 168 N.E.2d 16 (8th Dist.1960).
{¶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 transportation 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 reversed by a court unless the
determination is “manifestly arbitrary or unreasonable.”)
City of Toledo v. Kim's Auto & Truck Serv., Inc., 6th Dist. Lucas No. L-02-1318, 2003-
Ohio-5604, ¶¶ 19-20.
{¶24} The Appellee is authorized to exercise the power of eminent domain by the
language of Section 3 of Article XVIII of the Ohio Constitution, subject only to the limitation
that that the municipality may not abuse its discretion. “No provision of the Constitution of
Ohio authorizes the interference by general laws with the exercise of the power of eminent
domain, to the extent that such power is granted to *** municipalities by Sections 3 and
Delaware County, Case No. 18 CAE 01 0007 10
10 of Article XVIII of that Constitution. State ex rel. Bruestle v. Rich, 159 Ohio St. 13, 14–
15, 110 N.E.2d 778 (1953). We interpret R.C. 719.01 not as a limitation of the Appellee’s
power of appropriation, but only a statutory recognition that the purposes described
therein are conclusively found to be a public purpose and appropriation for those
purposes is not an abuse of discretion. Nothing within that section of the Code can be
reasonably interpreted as a strict limit of the power of eminent domain.
{¶25} For the forgoing reasons, we find the record contains competent, credible
evidence supporting the trial court’s decision that R.C. 719.01 does not limit the discretion
of the Appellee and that the description of the use is not an abuse of discretion, manifestly
arbitrary or unreasonable. Appellant’s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶26} In his third assignment of error, Appellant complains that the trial court erred
in its determination 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.
Delaware County, Case No. 18 CAE 01 0007 11
{¶28} Appellant cites to the cases of City of Cincinnati v. Vester, 281 U.S. 439, 50
S.Ct. 360, 74 L.Ed. 950 (1930) and Springfield v. Gross, 2nd Dist. No. 2004-CA-81, 164
Ohio App.3d 1, 2005-Ohio-5527, 840 N.E.2d 1123, where the taking of excess property
was not permitted. These cases are distinguishable and Appellant failed to provide
evidence to rebut the determination of the Appellee and the testimony of Mr.
Hammersmith that the excess property was necessary to complete 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 parcel” 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
Delaware County, Case No. 18 CAE 01 0007 12
court held that Appellee included this property pursuant to the dictates of R.C. 163.59(K)
and we conclude that the record contains competent credible evidence sufficient to
support that conclusion as well as a finding and that the appellee’s determination of
necessity was not rebutted.
{¶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 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
Delaware County, Case No. 18 CAE 01 0007 13
evidence to support the trial court’s decision. For those reasons the Appellant’s fourth
assignment of error is overruled.
FIFTH ASSIGNMENT OF ERROR
{¶35} Appellant claims the court erred in finding that Appellee complied with
R.C.163.04 (E) which required Appellee to “make reasonable efforts to plan the project in
a way that will limit” any disruption to the flow of traffic or imposition to access to the
property. He complains that the Appellee did not provide any evidence that it made
reasonable efforts to plan the project in a way to limit the effects upon Appellant’s access
to his property. However, we find no evidence that there will be an imposition to access
to Appellant’s property that does not already exist. There will be a bike path and,
presumably, bike path traffic, but it will not provide any unreasonable or additional burden
on access to the Appellant’s property that is not caused by automotive traffic on Glick
Road. Appellee complained about the need to have a great deal of room to back his
vehicles, some of which are 70 feet long and expressed some concern for the safety of
the users of the shared-use path. Assuming the accuracy of his measurement, Appellant
will be blocking nearly the entire road to properly back his vehicle in this property and
such a spectacle will be clearly seen by oncoming traffic both in the road and on the bike
path.
{¶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
Delaware County, Case No. 18 CAE 01 0007 14
for the trial court’s conclusion that R.C.163.04 (E) was sufficiently satisfied, that there is
scant evidence of any impact on traffic or Appellant’s access and, therefore, there is no
basis to conclude that the project was not necessary as a result of the impact on traffic or
access. Whether the impact on Mr. Beatty’s property entitles him to additional
compensation remains to be determined.
{¶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 Ohio Revised Code
which compels it to conduct a hearing no sooner than five nor later than fifteen days after
the filing of the Appellant’s answer. R.C.163.09 (B)(1). Appellant claims the trial court’s
decision prevented him from conducting necessary discovery. However, we have
previously determined that this statute is intentionally drafted in such a manner to
expedite resolution regardless of the status of discovery. “The Masheter court found that
the legislative intent was that the cases should move as quickly as possible through the
court so there is a minimum of delay in proceeding with the project, and the General
Assembly was within its authority to set up a procedure so this type of case could proceed
as quickly and expeditiously as possible. Masheter at 10, 53 O.O.2d at 90–91, 263 N.E.2d
at 405–406.” Ohio River Pipe Line LLC v. Henley, 144 Ohio App.3d 703, 706, 761 N.E.2d
640, 642 (5th Dist.2001). Because the court complied with the R.C. 163.09(B)(1) in the
Delaware County, Case No. 18 CAE 01 0007 15
scheduling of the hearing, we find the court did not abuse its discretion in moving forward
despite Appellant’s objections.
{¶39} Appellant’s sixth assignment of error is overruled.
Delaware County, Case No. 18 CAE 01 0007 16
{¶40} For the forgoing reasons we affirm the decision of the Delaware County
Court of Common Pleas.
By: Baldwin, J.
Gwin, P.J. and
John Wise, J. concur.