In Muskingum County Convention Facilities Auth. v. Barnes Advertising Corp., No. CT2024-0134 (May 22, 2025), the Ohio Court of Appeal upheld the Authority’s taking of two billboard easements where the stated purpose was for a “new facility serving the City of Zanesville and Muskingum County community[.]” Slip op. at 3.
OK, but what public use is that “new facility” for? How about we describe it by cutting-and-pasting the language in the statute which gives us the authority to take facilities, which defines “facility?” Check it out:
The CFA’s petition to appropriate the billboard easements states that “[t]he [CFA] is currently undertaking a public project to develop a new facility serving the City of Zanesville and Muskingum County community.” That petition describes the “new facility” as “any convention, entertainment, or sports facility, or combination of them, located within the territory of a convention facilities authority, together with all hotels, parking facilities, walkways, and other auxiliary facilities, real and personal property, property rights, easements and interests that may be appropriate for, or used in connection with, the operation of the facility.”
Slip op. at 4.
Here’s the statutory language, a 100% match:
(D) “Facility” or “facilities” means any convention, entertainment, or sports facility, or combination of them, located within the territory of the convention facilities authority, together with all hotels, parking facilities, walkways, and other auxiliary facilities, real and personal property, property rights, easements and interests that may be appropriate for, or used in connection with, the operation of the facility.
Ohio Rev. Code § 351.01(D).
The billboard owner said that wasn’t enough to understand what actual use the property was going to be put to, because it didn’t “contain any plans, specifications, or drawings that could inform [it] about the intended purpose of the appropriation.” Slip op. at 4.
The court said no, this was sufficient and simply lifting the generic description from the statute is enough, because a condemnation petition “does not require …. detailed specifications of the appropriating agency’s intended use.” Id. Yes, you must state what the property is to be used for, but cutting-and-pasting the statutory language is good enough. Slip op. at 4-5. Ohio municipal lawyers take note: you got this, easy peasy!
The court also rejected the owner’s assertion that the Authority had not met its burden to show its plans aren’t speculative. This isn’t “some contemplated but undetermined future use.” Slip op. at 6. The executive director of the Authority testified they had plans and rendering, had “sourced” the funding, and hired a construction manage. We are in a holding pattern until we can get this land, she testified. Good enough, held the court.
What about notice to the owner. As we read the opinion, the details about the intended use came out during testimony during the owner’s legal challenge. Maybe we’re reading the opinion wrong, or the court just didn’t provide the details. But it does appear that all the condemnor had to say was “we’re taking this property for the reasons the statute allows us to,” and that was good enough. How is the owner supposed to understand the reasons for the taking in cases where the owner doesn’t institute a legal challenge to find out the details?
Next, the court held this qualified as a public use, even though Ohio statutes define “public use” as not including projects “solely” to increase public revenue. Yes, this project is designed to increase public revenue (economic development), but it also will host a farmer’s market, and we all know how those things contribute to the public welfare and health.
Finally, the court rejected the owner’s argument that this taking isn’t necessary for the stated public use:
Winland testified that the project cannot be completed if the billboards remain in their current location. The construction project involves moving existing utility lines underground. Because of where those utility lines will be installed, and because the CFA is prohibited from building on top of underground utility lines, the pavilions cannot be constructed anywhere other than where the billboards currently stand. Moreover, Winland testified that the proposed location for the pavilions allows access to a nearby building that will be renovated to create storage space for vendors and Americans-with-Disabilities-Act-compliant restrooms for guests. On cross-examination, she emphasized that alternate locations such as Zane Landing Park would be too far removed from the downtown area to be viable and that the CFA cannot host the farmers markets or non-profit events without constructing the covered pavilions because those organizations cannot consistently afford to rent their own pavilion-sized tents for outdoor events.
Slip op. at 10-11.
Bottom line for us: yes, the testimony may have confirmed all the condemnor’s claims of public use and necessity. But how’s the owner supposed to have figured this out without that testimony?