Well, this is unusual, althought it should not be.
In this short order, the Supreme Court of Ohio has held the state's Department of Natural Resources in contempt for not moving fast enough to compensate property owners whose land had been flooded. (In California, that would be called "normal planning delay.")
In Ohio, what would be called an inverse condemnation or regulatory takings claim in other jurisdictions takes the form of a mandamus petition to compel the government to institute eminent domain. Several property owners instituted a mandamus action after their lands were flooded because the state did not draw down the level of a lake, despite its ability to do so. In 2011, the Ohio Supreme Court issued the writ, ordering the Department to institute eminent domain proceedings "immediately" amd tale steps to compensate the owners. See State ex rel. Doner v. Zody, 958 N.E.2d 1235 (Ohio 2011).
How quick "immediate" meant was apparently subject to interpretation, and the Department's defintion of differed from that of the property owners. We won't go into the details, but in its per curiam order, the Supreme Court concluded that there was "clear and convincing evidence" (as set out in the property owners' motion for an order to show cause) to hold the state in contempt for not acting quickly enough. In case the Department didn't get the message this time, the court set out a timeline:
We order respondents to complete all appraisals on relators’ parcels for the 2003 flood-level cases within 90 days and to file all appropriation cases for these parcels within 120 days. For the remaining 20 parcels that respondents claim they have not yet surveyed because they involve flooding above the 2003 flood level, respondents are ordered to institute declaratory judgment actions in the Mercer County Common Pleas Court within 30 days to determine the legal rights of the parties for those parcels. We deny relators’ request for attorney fees and for a fine.
Slip op. at 2. Two justices dissented, and concluded that "immediately" gave the state wiggle room to take its time, and that "[w]hile respondents may be proceeding at a pace that is unacceptable to the [owners], our only mandate to respondents was to proceed 'immediately.' We did not set forth any guidelines, let alone a deadline, as to when the appropriations must be completed."
The motion is worth a read, if only to understand the allegations of how the Department dragged its feet, engaged in bad faith settlement negotations, and, in the words of the property owners, "slow-walked" its compliance with the order in what appears to be a classic example of a "bleed out" strategy. Indeed, one of the property owners literally did, and died while waiting for the Department to act. More on the story here from the Columbus Dispatch.
Here's the case docket, complete with the relevant pleadings.
Our thanks to Ohio colleague Matt Fellerhoff for the heads-up.
