In City of Dublin v. RiverPark Group, LLC, No. 18AP-607 (May 9, 2019), the Ohio Court of Appeals (Tenth District), the city exercised eminent domain — via Ohio’s version of “quick take” (immediate possession, not title) — to take an easement “for the purposes of constructing roadway improvements … and a shared-use path adjacent to River Drive.” Slip op. at 2.

The owner answered, but did not deny the city’s taking power or the necessity of the taking. But later, a different entity which claimed an interest in the property intervened, asserting in its proposed answer that the city lacked the power to do a quick take because the taking was not for roadway purposes. The new party sought to eject the city from the land, which it had already occupied. The Ohio quick take statute limits a municipality’s quick take power to “making or repairing roads.” But the court rejected the intervention, and also rejected the original sole defendant’s request to amend its answer to include the same claims as the (now denied) intervenor. The case went to the jury, which awarded compensation.

The owner appealed, asserting the city didn’t have quick take power:

Appellants’ threshold argument in support of its first and third assignments of error is that Dublin did not have a statutory or constitutional right to appropriate their real property by means of the quick take because making or repair of roads was not the purpose of Dublin’s construction of the shared-use bike path.

Slip op. at 4. The city claimed that argument was fait accompli, given that by the time of the appeal, it had already completed the project, and paid the jury-determined compensation.

The court agreed with the city. When faced with an illegal quick take, the property owner’s remedy is to file a new action for trespass, with the remedy being ejection:

The property owner’s remedy for a public agency’s illegal or unconstitutional appropriation is to commence a separate action sounding in criminal trespass and seeking injunctive relief. Carskadon; Branford; Brook Park. Once the public agency completes the project, acquires an ownership interest in the property by way of an appropriation action, and pays the property owner in accordance with the jury award, a reviewing court cannot entertain a challenge to the public agency’s right to the appropriation, even if the public agency’s appropriation of the property was illegal and unconstitutional.

Slip op. at 7. Absent such a separate action, tough beans, landowner.

This strikes us as weird. We get that courts do not like to stand in the way of a condemnation moving forward. And that it would be difficult to un-build a project once built. But it also seems that, generally speaking, a condemnor does quick take at its own risk, especially in a jurisdiction that isn’t a “true” quick take (no immediate transfer of title, merely a right to pre-judgment possession). If a government action is “illegal and unconstitutional,” we’re not sure how the passage of time can cure that.  

City of Dublin v. RiverPark Group, LLC, No. 18AP-607 (Ohio Ct. App. May 9, 2019)