Major interstate highway bridge construction nearby resulted in homeowners suing ODOT for inverse condemnation because "extreme noise, pounding and vibrations" caused their home (red arrow) to be uninhabitable. The Ohio Court of Claims granted ODOT summary judgment, and the property owners appealed.
The homeowners argued that the trial court applied the wrong standard, and should have analyzed the undisputed facts under the Penn Central test for a regulatory taking. Problem was, they hadn't referred to Penn Central in the Court of Claims, arguing only that ODOT had "'substantially and materially' interfered with their use of their property," and had physically trespassed.
In Sommer v. Ohio Dep't of Transportation, No. 13AP-848 (Dec. 23, 2014), the Ohio Court of Appeals rejected the homeowners' argument, concluding that the Court of Claims properly analyzed the facts under the correct standard: "'As ordinarily understood, the term, 'taking,' as used in the Constitution, comprehends '[a]ny direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it.''" Slip op. at 5 (quoting State ex rel. Fejes v. City of Akron, 213 N.E.2d 353 (Ohio. 1966)). So even though the court did not analyze the Penn Central factors, there was no error.
The court of appeals also rejected the homeowners' argument that in applying the Fejes standard, the Court of Claims improperly analyzed their claim as a physical invasion case, and not as a regulatory taking. "[I]nconveniences such as noise, dust, and vibrations arising out of government construction projects are not generally compensable in takings actions." Slip op. at 7. The type of "inconveniences" which the homeowners suffered through here were not enough:
In the instant case, while expressing frustration with the noise, dirt, and other annoyances, appellant Birge was not aware of any physical damage or harm to her property as a result of the construction work. Similarly, appellant Sommer was unaware of any structural damage to the house. Appellant Birge assumed, once the construction was completed, she would be able to enjoy her property the same as she did prior to the work. Appellant Sommer, while agreeing that the bridge construction work "needs to be done," believed that ODOT "could have come to us and maybe let us know what was going on and give us maybe fair warning." (Sommer Depo. 27.)Slip op. at 8. This did not amount to a "substantial, material and unreasonable interference with the physical access to or from the property." Id. at 9.
On the same theory -- the inconveniences the homeowners endured were not different from those typically resulting from similar construction -- the court of appeals also rejected their nuisance claim.
Sommer v. Ohio Dep't of Transportation, No. 13AP-848 (Ohio App. Dec. 23, 2014)
