A short (but interesting) one from the Ohio Supreme Court. In State ex rel. Balunek v. Marchbanks, No. 2021-1469 (July 25, 2023), the court held that a physical takings claim alleging the DOT cut off access to property was ripe, even though the owner might have applied for permit to gain access.
As part of a road construction project, ODOT removed and didn't replace two driveways to the property, landlocking it. ODOT admitted it did so, but didn't include the lost access in the compensation by arguing "that access could be [re]established if Balunek obtains a 'street opening permit' from Cleveland. Slip op. at 3.
The owner sued, seeking a writ to compel ODOT to formally condemn the access. Remember that Ohio does not recognize the usual inverse condemnation remedy, but in situations where an owner asserts its property has been taken and the government has not paid compensation, the owner seeks an order to compel the government to formally take.
The court had no problem concluding that ODOT wiping out the property's access and landlocking it was a taking:
{¶ 12} Balunek has clearly and convincingly established that ODOT took property beyond that for which it has already commenced appropriation proceedings. Prior to ODOT’s construction project, the property had access to abutting roads through driveways and an easement. ODOT, however, destroyed the property’s driveways that connected it to East 93rd Street and did not replace those driveways or provide alternative curb-cut access. The project also eliminated the property’s easement access to Woodland Avenue. The property is thus currently inaccessible to lawful vehicular traffic; to obtain access, Balunek would need to apply for and be granted a street-opening permit from Cleveland and then rebuild the driveways himself. ODOT’s construction project has deprived the property of all access to an abutting roadway and thus constitutes a taking.
Slip op. at 4-5.
The court next dealt with ODOT's "sole argument that Balunek is not entitled to a writ of mandamus," slip op. at 5,which asserted it hadn't taken the property because the owner might obtain a street opening permit from the city. This was not described as a "ripeness" argument, but anyone familiar with regulatory takings litigation recognizes it as such (the government asserting that a court can't tell whether the defendant has taken the owner's uses of property, because there hasn't been a decision on what uses are allowed, if any). Here, ODOT asserted there could not be a taking of access, because the owner might get access, if only it asked: "ODOT argues that requiring a property owner to obtain a permit to use his property does not constitute a taking." Slip op. at 6.
ODOT relied upon a case in which the court held that the denial of a mining permit was not a taking. Requiring you to get a permit before you can use your land isn't necessarily a taking, because -- as the old saw goes -- the existence of a permit system implies that a permit might be granted. This is the same thing, right?
No, the court held, this is much different. The requirement that you seek a permit before you can allege a taking (aka ripeness) only works for those cases where the denial of a permit is alleged to be a taking. So the argument might work in a case where the city denied the owner permits to build driveways. Here by contrast, ODOT eliminated existing access to the property, and the owner is alleging that is a taking:
In contrast, here, the taking has already occurred—ODOT eliminated the property’s access to abutting streets by removing its driveways. ODOT argues that an obligation to compensate for a taking is somehow extinguished if the landowner can, at his own cost, potentially obtain a permit to access his property from a roadway; ODOT has cited no authority for such a proposition.
Slip op. at 6-7.
Seems about right to us.
State ex rel. Balunek v. Marchbanks, No. 2021-1469 (Ohio July 25, 2023) (per curiam)
