Is a property owner entitled to compensation if the DOT closes off an intersection by which drivers entered a fast-food restaurant, and now can only get to the restaurant by circuitous access? In other words, if a public project limits access, but does not cut it off entirely? And is the answer the same if the state had in 1961, taken with compensation an easement from the current owner's predecessor, and the former owner had agreed the compensation was for "all the land taken and resulting damages?"
That's the issue the Ohio Supreme Court split 4-3 on in State ex rel. New Wen, Inc. v. Marchbanks, No. 2020-Ohio-63 (Jan. 15, 2020):
{¶ 6} ODOT’s work did not directly affect the entrance to the Wendy’s parking lot from C.R. 128. But as a practical matter, the changes require drivers to travel a longer distance to access the Wendy’s from S.R. 16. Prior to the changes, a driver traveling east on S.R. 16 could reach the Wendy’s by simply turning left onto C.R. 128 and then turning left again into the Wendy’s parking lot—a distance of 0.22 miles from the point where the driver could first see the Wendy’s site. After the changes, a driver has to exit S.R. 16 at the new interchange, travel to C.R. 128 using local roads, and then approach the Wendy’s from the north—a distance of 1.6 miles. Similarly, the distance that drivers traveling west on S.R. 16 must cover to reach the Wendy’s increased from 0.26 miles before the changes to 1.38 miles, using the new interchange and local roads. The distance that drivers leaving the Wendy’s must travel to reach S.R. 16 has increased to a similar degree.
Slip op. at 3-4.
Wendy's sued DOT for inverse condemnation -- well, technically not inverse, since in Ohio the procedure is that an owner who believes its property has been taken without compensation seeks a writ of mandamus to compel the condemnor to institute condemnation proceedings -- asserting it was due compensation for the diminished access.
The court's majority held:
The evidence here shows that a taking of a property right occurred. A landowner’s right of access to abutting public roadways is “[o]ne of the elemental rights growing out of the ownership of a parcel of real property.” Id. at 207. An abutting property owner possesses “not only the right to the use of the highway in common with other members of the public, but also a private right of easement for the purpose of ingress and egress to and from his property.” State ex rel. Merritt v. Linzell, 163 Ohio St. 97, 126 N.E.2d 53 (1955), paragraph one of the syllabus. The state may not take away, destroy or substantially impair that right of access without providing compensation. Id.
Slip op. at 7.
"Without question," the court concluded, "ODOT has eliminated New Wen's property right of access to S.R. 16 and the taking physically occurred on New Wen's property." Slip op. at 7.
The court rejected ODOT's argument that Wendy's predecessor-in-title waived the right to direct access to the highway in the easement it granted as the result of the 1961 taking. It held that the easement granted to ODOT by the former owner (as the result of the original condemnation), still reserved to the former owner (and thus Wendy's today) the property right to direct access to S.R. 16. Slip op. at 12 ("New Wen has shown, by clear and convincing evidence, that ODOT’s closure of the intersection deprived New Wen of access to S.R. 16, a right of access that the original plans and the easement agreement expressly preserved, and that it has not received compensation for the taking.").
The three dissenters had a different view, and would have concluded that the decades-old taking included the right of the property owner to directly access S.R. 16. Slip op. at 16 (O'Connor, J., dissenting) ("Specifically, pursuant to state law, abutting property owners such as Olmsted could have no right of direct access to the limited-access highway by reason of the fact that their property abutted the highway.").
While this case turned on the terms of the 1961 easement, the question of whether a partial loss of access to a parcel is a compensable taking is one of the hottest issues around. Indeed, the Virginia Supreme Court recently agreed to review a case on just that issue (we shall post more about that one shortly). Stay tuned.
State ex rel New Wen, Inc. v. Marchbanks, No. 2020-Ohio-63 (Ohio Jan 15, 2020)