Here's a good one from the Ohio Court of Appeals to start off your 2016.
In State ex rel Greenacres Foundation v. City of Cincinnati, No. C-150038 (Dec. 30, 2015), the court agreed that the City's failure to issue a demolition permit for the "Gamble House," which the City claimed was a property worthy of historic preservation but had not yet so designated, was a taking.
The Gamble House was built by the "Gamble" in Proctor & Gamble, the guy who invented Ivory Soap. But over the years, the house "had been uninhabited since 1961, had suffered extensive water and termite damage, and was infested by mice, birds, raccoons, squirrels, and bats." So the current owners asked the city for a demolition permit so they could redevelop the property.
The city said no, and ran the owners through a maze, with several appeals through the usual administrative procedures. We won't recount it here, but read the opinion for the full details, all of which will sound very familiar to you land users out there. Eventually, the property owners prevailed -- while the city eventually designated the house as historic, at the time the owners applied for the demolition permit, the city had not done so. The court ordered the city to allow demolition. The Gamble House was demolished in 2013.
Round Two. The owners sued the city for a taking, asserting that the city's refusal to allow demolition temporarily deprived them of all economically beneficial use, and the city should be ordered to condemn it. Under Ohio law, a regulatory takings claim is brought by instituting a mandamus action, with the remedy being an order that the government institute eminent domain proceedings.
The trial court agreed with the property owners, and the court of appeals affirmed. The court first rejected the city's claim that the claim was brought too late, and that the "taking" occurred when the city did not issue the demolition permit, and that any takings claim should have been wrapped up in the owners' administrative appeals. The court concluded that it was the city's later denial of a "Certificate of Appropriateness" which would have allowed demolition despite a historic preservation classification, that was the event triggering the four year statute of limitations.
The court affirmed the Lucas wipeout taking, and rejected the city's argument that the owners were not deprived of all use of the property. The city argued they could continue to use the Gamble House as before, but the court held that the house was just a wreck, and could not be put to any economically viable use "without spending significant sums of money." Slip op. at 16. The city's appraiser who testified that the building had value had failed to consider the cost of repair, which "would vastly exceed the value of the home." Id.
The court also rejected the city's argument that the delay was a Tahoe-Sierra moratorium, and that the time alone was not dispositive. But it wasn't a total win for the owner. The court of appeals held the trial court should not have determined that compensation would be measured from a date before the COA denial. Instead, since the taking didn't occur until that date, compensation would be measured only from that date.
State ex rel Greenacres Foundation v. City of Cincinnati, No. C-150038 (Ohio App. Dec. 30, 2015)
