National Eminent Domain Blog : Eminent Domain & Condemnation Lawyer & Attorney : Ackerman Ackerman & Dynkowski : Michigan and Washington, DC

Frequently, eminent domain proceedings require environmental impact statements (EIS) or other feasibility studies before the government can begin condemnation. In road construction, both federal and state authorities often require local governments to submit such studies before proceeding. The Ohio Department of Transportation (ODOT) has required the City of Stow to submit a second feasibility study before it expands a road. While this process can be costly ($56,000 in this case), ODOT is right to take a second look here. Business owners are concerned about how the widening will affect their properties and whether the public benefit is worth the impact to business. The $56,000 may be much less than the cost of acquiring the businesses along Graham Road, which may not be viable after the City carries out the widening.

Falls News Press

The city of Stow may have to pay another $56,000 for the Graham Road widening project so the Ohio Department of Transportation can investigate whether eminent domain is justified in Stow and Cuyahoga Falls.

The focal point of the widening issue is Krieger's Health Food Market, which does not want to give up a strip of its property for the widening.

"ODOT feels that what they're proposing is best for the masses," said Costello. "Other people feel it's not best for them, and it very well may not be.

"ODOT wants more documentation and evaluation and more public input," Costello said.

Costello said the request for further study was made by businesses along Graham Road.

"Businesses are saying [to ODOT], 'Show us why those decisions were made, and let's look at some other options,'" Costello said. "They're saying, 'We understand you want to make [the road] safer, but why are you doing it this way?'"

Costello said the complaints involve businesses in both Cuyahoga Falls and Stow.

Currently the plan is to widen Graham Road on the north side, where Krieger's is located. 

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WEWS’s news report leads one to believe that Cleveland’s I-490 “Opportunity Corridor” is simply a taking of blighted property that allows residents to escape a dying neighborhood. However, digging deeper one may find that the history of this project severely crimped potential for development in the neighborhood and destroyed incentives to keep property safe and in good condition. Often, with the specter of eminent domain looming for years, even decades, property developers avoid putting money into neighborhoods, knowing they will eventually be condemned. It is a chicken-and-egg scenario; does eminent domain respond to blight, or does the threat of condemnation cause it?

On the other hand, the government needs viable alternatives and growth within Cleveland. This route may end up benefitting everyone in the city, including those in the Opportunity Corridor’s path. Only time will tell.

WEWS News

The Opportunity Corridor is a massive transportation project on the city’s southeast side that would connect I-490 to University Circle. The project promises to open the door to new economic development and jobs in an area with little to no economic activity right now.

The route the Ohio Department of Transportation recommended will connect 490 from East 55th to East 105th and Quincy. This will allow thousands of motorists to have an alternate route into the University Circle area and possibly trigger business growth in what has become known as the forgotten triangle.

Homeowners like Joyce Hairston would lose their homes -- and that gives her the opportunity to get out of a rundown, depressed neighborhood.

“I probably couldn’t get a thousand bucks for my house right now,” said Hairston. “But where do you go? I’ve had 16 wonderful years here.”

Hairston did say the state is making an “equitable offer” for her property. Out of 95 homes that may be affected, it appears only 12 are owner-occupied. Many are boarded up. Some are spray painted with the words "No Copper Inside" -- a warning to vandals who might try to steal the pipes. 

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As the Mansfield News Journal notes, a local road project is meeting some relatively strong resistance. Property owners will probably end up with capable eminent domain lawyers, such as Ohio attorney David Haring. Hopefully, these owners’ attorneys will at least get them fair compensation. Further, many of these residents have reasonable, non-compensation requests, such as erecting guardrails and protecting property from flooding. A good lawyer may be able to negotiate these compromises. On the other hand, Ohio condemnation law is very pro-government. Mansfield residents face a lengthy court battle.

The Mansfield News Journal

Southside residents directly affected by the multimillion-dollar project to rebuild Middle Bellville Road packed into a church meeting room Thursday with concerns ranging from construction havoc for up to two years to having portions of their property taken by eminent domain.

One mile of Middle Bellville Road -- from Lexington Avenue to Straub Road -- would be reconstructed to a 29-foot pavement width, with sidewalks installed. A left turn lane would be added at Logan Road, and a small "roundabout" meant to slow traffic to 20 mph would be added at Straub Road.

Residents at the meeting expressed concerns that the project might result in flooding. They were told project designers were required under federal guidelines to come up with plans that would not increase stormwater drainage problems.

One resident, who lives at Logan Road and Middle Bellville, told officials he does not oppose the project -- but wants designers to order a guardrail installed. The man said he has seen five wrecks at the intersection since he has lived there. "I've had cars in my front yard," he said. 

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After remand from a U.S. District Court, nursing home owners were unsuccessful in their claim in State Court of damage to their business enterprise because of Springfield, Ohio’s condemnation of their property.

State law defines “value” and what constitutes “property” for purposes of just compensation. Either Ohio law limits compensation for losses to intangible property like business value, or the facts simply did not favor the owners in this case.

Springfield News-Sun

A judge has ruled in favor of the city of Springfield in a lengthy lawsuit filed by the owners of the now demolished Pillars Nursing Home.

Owners MSI Pillars Ltd. first filed a suit in federal court, then in Clark County Common Pleas Court, demanding that the city also compensate it for the taking of intangible property, such as the business enterprise.

The city manager and commissioners denied the request.

That denial constitutes a taking of more than just the buildings, but also its ability to construct and operate a new nursing home on site, the lawsuit alleged.

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Jacksonville is acquiring 40 to 45 acres to create a viable state fairground. However, it will seriously interfere with the activity of Entergy Arkansas and other owners in the area. One questions whether the municipality has thought this process through and considered whether a new state fair is worth the effect on owners. Whatever the case, outstanding Arkansas attorneys like Michael Philips will be soon see a whole lot of property owners visiting their offices.

Baxter Bulletin

Thomson said the company needs the property for future facilities, but would have to comply under eminent domain. He noted that Entergy Arkansas is not the only owner of land being eyed by the city council.

"Now it's up to the city to begin the process to acquire it," he said. "We will wait on the city to see what they do, and then we'll respond to it when the time comes."

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Despite the comment of Bryan Smith of the Portage Area Regional Transportation Authority (PARTA), the community is not bound by its own appraisal. To the contrary, owners obtain separate appraisals because they believe the government’s appraisal is incorrect. To simply state, as Smith does, that PARTA’s appraisal alone is enough to take an owner to trial does not fulfill the government’s obligation to make a fair offer prior to initiating a condemnation proceeding. Even when the condemning agency feels it has made an adequate offer, it should at least look at the owner’s appraisal to ascertain whether the government’s appraisal is correct. To imply otherwise, as PARTA does, is unfair to owners.

The Akron Beacon Journal (Ohio.com)

PARTA and property owners Tony and Carolina Difiore have been unable to agree on a sale price.

The agency initially offered about $450,000 for the half-acre property and 10,000-square-foot building.

Bryan Smith, PARTA's director of planning, said the agency followed federal rules by hiring an appraiser, and then hiring an independent consultant to review the appraisal.

The Difiore's counter offer was $1.5 million, Smith said.

''We're bound to offer (the appraised amount). We're not allowed to pay $1.5 million,'' Smith said. ''We as taxpayers wouldn't want that.''

PARTA told the Difiores that if they can prove the property is worth $1.5 million, there was a process for amending the appraisal.

After PARTA filed an eminent domain action, the Difiores presented an appraisal valuing the property at $750,000, Smith said. The day before last week's trial, they submitted a revised appraisal for $1 million.

PARTA sought a continuance to review the information, and it was granted by Portage County Common Pleas Judge John Enlow.

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Ohio Tribune

WARREN - A visiting common pleas judge toured a proposed landfill site Friday following a court hearing in the continuing litigation that pits the city of Girard against the landfill proponents.

Although Total Waste Logistics has plans for the 41 acres off U.S. 422 for the landfill, Girard would prefer that the site be used as an addition to its park system, according to Mayor James Melfi.

………………………………………………..

''Right now we're locked in this land appropriation case,'' Melfi said. ''But everyone knows that we're in striking distance of Tod Park and the city's cemetery, where Revolutionary War veterans are buried. This land would give us access to the MahoningRiver and the proposed bike path.''

Curran is allowing all sides a couple weeks to submit more written arguments before any decision.

In 2005, city officials offered Youngstown Belt Railway Co., which owns the property, the then-full appraised value of $41,500 for the undeveloped land between two railroad tracks. The company would not negotiate with the city.

Melfi said the city has wanted the land for park purposes for about nine years, and the acquisition is not intended just to stop a landfill from opening

Gerard, Ohio does not want a landfill in town.  Therefore, it finds a way to acquire through eminent domain.  What it forgets is that the licensing process is part of the consideration of what it is taking.  This is not simply an old railroad siding, but a parcel awaiting profitable use.  The City may win the battle of acquisition, but lose the war of Just Compensation.  The Citizens should be very aware of where they are heading.

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Newark Advocate

John Boesch's house stands vacant along Ohio 161, with the only sign of life being the big yellow one declaring his feelings for the state transportation agency.

Many of his neighbors lost their houses entirely to the new four-lane highway project, which is scheduled for completion in May 2010. The Ohio Department of Transportation has spent $41.6 million just on property acquisition, far more than it offered the dozens of property owners along the highway.

On average, property owners who took ODOT to court before giving up their land for the new Ohio 161/37 gained almost $250,000 more than they originally were offered, according to records obtained from the state in a public records request.

Of the people who ended up in court, the median increase they received was 82.8 percent greater than the original offer, or $65,000 more. By contrast, the additional money received by property owners by negotiating with ODOT or because of additional damages was 5.6 percent higher than the original offer, or $9,700 more.

In the end, the median amount property owners received was $154,000, including both people who lost their homes and those who lost land.

Bill and Helen Bettac joke about people wondering if they made millions. They received $165,000 for a house they were told was worth $285,000 by others. 

Condemning agencies generally try to "do it right" although they often undervalue property. However, the extent of underestimation described in the Newark, Ohio newspaper seems outside a statistically reasonable range of error.

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 Columbus Dispatch

Assuming all the paperwork is in order, Ohio regulators will approve Ohio American Water's latest rate request -- an average 23 percent increase across 16 service areas in nine counties.

That's the way state law works. When the regulated utility can prove and justify the expense, a rate increase follows.

OAW's parent company, American Water Co., started buying up small water companies across the state in 2002. Since 2005, OAW rates have gone up three times.

Ohio American rate increases have averaged 21 percent every two years, including a 30 percent increase in November. OAW sewer rates have gone up an average 19 percent every two years, including a 37 percent increase in November.

Ohio American President Dave Little said that the rate increases were needed to update the water- and sewage-treatment systems.

The Public Utilities Commission of Ohio also negotiates profit margins for regulated utilities. For Ohio American, that margin has hovered around 8 percent. "You can't expect a company to work without profit," Little said.

Kennedy said Ohioans shouldn't have to choose between decent water and affordable rates.

Ohio Consumers' Counsel spokesman Anthony Rodriguez said state law is the problem. "The law says that they are allowed to get a return on their investment as a private utility serving the public and that they are allowed to recover their costs," he said.

For now, Marion fights the increases by pooling legal resources with Tiffin, another citywide OAW service area. That costs, too, Schertzer said, but it's necessary.

"As near as we can figure, Marion has had a private water supplier for many, many years," he said. "A lot of people refer to it as city water, and when rates go up, a lot of times the municipality gets blamed for it."

Taking over the local private water company sounds simple until the stability of the community is shattered by the political brawl. If the community wins,  all the problems of poor administration will follow.

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 Marion Star

All of the Northwest Industrial Connector except an overpass will be done by approximately fall of 2010, Marion County Engineer Brad Irons estimated.

The $17 million project, which once completed will link Ohio 95 West to Marion-Williamsport Road with a 2.65-mile road, likely will break ground this fall, Irons said. Local officials sought construction of the road to expedite shipping for Whirlpool Corp., the county's largest employer, alleviate heavy truck traffic downtown and open up land along the route to industrial development.

Federal stimulus money totaling $5.1 million awarded for the 4 1/2-year-old project includes a deadline requiring the money to be spent by March 2010, but Irons said the county is ahead of schedule.

"I'm not worried about that date because we're so far ahead," he said, adding that the Marion County Board of Commissioners' adoption of a resolution May 12 moves the project ahead the next step toward acquiring the land needed for the road.

He estimated the entire project including the overpass might be done in fall of 2011.

The resolution moves to appropriate property for the Northwest Connector for real estate owned or used by Ohio American Water Co., Richard A. and Constance L. Sheaffer, R.A. Shaeffer Inc., William and Sandra Bates, Carl and Karen Hamm and Harriman Family Partnership. The county has made offers to those property owners, but been unable to negotiate a purchase price. If unable to reach purchase agreements through negotiation with individual land owners, the county will file an eminent domain action in Marion County Common Pleas Court and proceed with the project as the court sets a purchase price, County Prosecutor Brent Yager said.

Yager said the county will send the land owners a "good faith offer" based on appraisals the county had done by M.E. Companies of Columbus. The land owners will have 30 days to accept or counter the offer.

The agency takes a cavalier attitude about; the ability to utilize eminent domain to acquire and the values of the properties involved. The arrogance in the condemnor could hurt both the owners and the government.

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Cincinnati.com

A jury has awarded the owners of 1.3 acres at the fast-growing Interstate 75-Ohio 63 intersection $900,000 for their property in an eminent domain case growing out of the Ohio 63 widening project.

The Warren County Common Pleas Court jury award last week was about 50 percent more than the state's appraisers valued the vacant store site across Ohio 63 from the Waffle House restaurant.

"The significance of this case is that it demonstrates the exploding growth along the I-75 corridor," said Richard Glazer, Montgomery-based eminent domain lawyer who represented the property owners James and Kimberly Dinus of Naples, Fla.

The state and city of Monroe are jointly acquiring property along Ohio 63 for the widening project from Trader's World east of I-75 to Union Road on west side of I-75. Most of the property owners have reached agreement or are in negotiations on the value of their property. The Dinus case is the first to go to trial.

When it filed its eminent domain lawsuit in 2007, the state offered $335,510 for a partial taking of the Dinus property that eliminated access to Ohio 63.

Glazer argued the partial taking by eliminating access to the property made it useless. The state subsequently converted its case to a total taking of the property. During the three-day trial last week, the state's appraisers valued the site at $602,000 and $651,200, respectively. The Dinus appraiser valued the site at $1,023,399.

Despite the concerns all of us have about the general economy, there can still be a demand for land in contemplation of growth in a community. There are always parcels especially well suited for development in the near term. 

Mr. Glazer apparently did a great job of explaining the potential for development to the jury.

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 Vindy

The city seeks to demolish the machine shop for a street extension for a YSU project.

YOUNGSTOWN — The city law director wants a magistrate to hand over a small machine shop to the city under eminent domain, and then let a jury decide what compensation the shop owner should receive for his property.

A hearing will be at 9 a.m. Dec. 10 on the city’s motion to seize and demolish the business for a street extension in conjunction with Youngstown State University’s new $34.3 million business school.

Magistrate Dennis Sarisky of Mahoning County Common Pleas Court set the hearing on this and other motions in the city’s lawsuit that seeks to take the Grenga Machine & Welding Co. machine shop and storage facility at 128 W. Rayen Ave.

The city plans to tear down the Grenga building to make way for a northward extension of Hazel Street designed to link the university with the city’s downtown.

The university broke ground for the new business school this fall.

Iris Torres Guglucello, city law director, said the city’s position is that the law requires Sarisky to order the property turned over to the city.

After the Dec. 10 hearing, the only issue that should remain for a jury trial is how much compensation Joseph Grenga should receive for his property, Torres Guglucello said.

Here is all that is wrong with individuals representing themselves in condemnation cases. Without knowing whether his defense is valid, Mr. Grenga relied upon a non-lawyer to file a 'friend of the court' pleading in Mr. Grenga's defense. Does the owner not have a valid claim? There are any number of outstanding lawyers in Ohio who would have represented him. This is not good for the individual owner nor our democracy.

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North Central Ohio

The organization OPORR, Ohioans Protecting Our Resources and Rights, is fighting an attempt by Columbia Gas Transmission Corp. to take control of property rights in southern Richland County.

The group held a public awareness meeting Thursday night at the Clear Fork Adult Center to discuss Columbia's proposal to expand its Weaver Gas Storage Field to the Federal Energy Regulatory Commission.

The expansion encompasses 3,000 acres plus a protective boundary of 9,000 acres of land. OPORR President Van Wade said property owners may lose control of their land to the company through eminent domain which could result in a financial loss to property owners.

Columbia Gas Transmission Corp. said the proposal seeks no change in the volume of gas to be stored in the field and no new wells or pipeline facilities. Columbia says the sole purpose of the request is to protect the natural gas that it stores in the field for its customers.

 

-The utility does not raise a safety issue. It is hard to imagine the need for an expanded take premised upon the comments of the attached article. It will be interesting to see what the utility provides to the Ohio Public Utilities Commission as the basis for its need to affect the title to so many acres of privately owned land.

The owners in the affected area have done an unbelievable job of uniting in their opposition to the project. One need only look to the website established by the aggrieved owners at www.oporr.com in order to find how to protect individual rights by making a community effort to propound a reasonable position.

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Toledo Blade

The state wants to use a small part of the land of Eugene Ward, on Box Road near Grand Rapids, Ohio, for the new U.S. 24. ODOT is offering Mr. Ward $300 for the land; Mr. Ward is holding out for $3,000. A surveyor’s measurement is in question. The state says past errors are common in acquisition cases.

-This is a balanced article on the Ohio Department of Transportation acquisition process.  However, the general problem in the process comes thru 'loud and clear' in the agency's disregard for the flooding effect caused by the taking. 

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www.springfieldnewssun.com, 03/28/2008

The City of Springfield has the right use eminent domain to acquire Robinson Insulation, Common Pleas Court Judge Richard Carey ruled Friday, March 28.

The property owners, Garth and Jennifer Robinson, had challenged the city's right to take their property, which would be razed to make room for Community Mercy Health Partner's new downtown hospital complex slated to open in 2012.

In his ruling, Carey assigned April 28 for a jury trial to determine the amount of compensation the Robinsons will receive for the property located on Baltimore Place, and Cliff, Plum and Cedar streets.
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-There is always a challenge in the determination of what is a public use. Hospitals have frequently been non-profit or publicly owned. Therefore, when a taking for a hospital expansion is considered a public use it should not be considered a surprising result.

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Columus Dispatch, September 29, 2007

When Canal Winchester offered Richard "Pete" Stebelton $9,249 for a 1-mile strip of his property, Stebelton thought the payment was too low.

This month, a Franklin County Common Pleas jury decided the village should pay the farmer and used-car dealer $595,625. 

Canal Winchester wants the land to link a bike path between Rager Road and the village swimming pool. It used eminent domain to take a strip of Stebelton's 80-acre property and hired an appraiser who determined that the $9,249 would be enough compensation.

Stebelton was the only one of eight property owners who didn't agree to sell his land to the village for the path. Instead, he went to court to challenge the village's valuation.

The jury decided Sept. 20 that the land the village wants, along the northern edge of his property, is worth $37,000. But the jury also decided that by taking it, the village was closing off a back entrance to the property and damaging the value of the rest of Stebelton's land by $558,625.

-In many jurisdictions, even after the jury=s verdict, the condemning authority can withdraw from a condemnation.  This offers great risk to owners who may face a second condemnation, with not as decent results.

In this situation, it looks like Mr. Stebelton had the opportunity to face a community which may walk away, but at least pay his fees.  The process can be maddening indeed!

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Beacon Journal, July 2007

The Akron City Council intended to vote on the authorization of the city to exercise its powers of eminent domain if necessary to acquire residential property in the middle of the renewal area. 

Notices were to be mailed 15 days in advance of the public hearing, however one of the property owners failed to receive a notice.

-Due process requires fair notice of a hearing in which the final decision to take is made. The courts have consistently taken a position that the judiciary is extremely limited in the propriety of review of the local decision. Therefore, it is imperative that owners have the right to be heard at the time the decision is made in the local legislative body, be it a Township Supervisor Board or a City Council hearing.

The Akron taking may be as much for the opportunity simply to have some development action in the community as it is more than for a public use.

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