State ex rel. Preschool Dev., Ltd. v. Springboro - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State ex rel. Preschool Dev., Ltd. v. Springboro, 99 Ohio St.3d 347, 2003-Ohio-3999.]

THE STATE EX REL. PRESCHOOL DEVELOPMENT, LTD. v. CITY OF SPRINGBORO.
[Cite as State ex rel. Preschool Dev., Ltd. v. Springboro, 99 Ohio St.3d 347,
2003-Ohio-3999.]
Mandamus to compel city of Springboro to bring appropriation proceedings
after it eliminated a curb cut from relator's property to State Route 73 --
Writ denied.
(No. 2002-1785 -- Submitted April 15, 2003 -- Decided August 13, 2003.)
IN MANDAMUS.
__________________

MOYER, C.J.
{¶1} State Route 73 is a five-lane highway that runs through the city of
Springboro, Ohio, respondent, for approximately 3.3 miles. S.R. 73, which is also
known as East Central Avenue and West Central Avenue, is the primary east-west
highway in the region. Most commercial activity in Springboro occurs along S.R.
73.
{¶2} Relator, Preschool Development, Ltd. ("PDL"), is a limited
liability company that operates a daycare facility located on property it owns on
S.R. 73 in Springboro. No public street other than S.R. 73 abuts or otherwise
adjoins PDL's property.
{¶3} In 1998, when a daycare center was anticipated on the site, a curb
cut providing for vehicular access between the property and S.R. 73 was
constructed. All necessary permits to develop the property, including the permit
for the construction of the curb cut, had been obtained. In 1999, the chief
executive officer of PDL transferred the property to PDL and sought to convert
the property from single-family use to commercial use. Raj K. Sharma, the City
Engineer for Springboro, advised the city that although left turns in and out of

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PDL's existing curb cut had been acceptable for the low traffic volumes
associated with a single-family residence, these left turns would be hazardous for
business-generated traffic volumes.
{¶4} Subsequently, the city advised PDL that the safest alternative
would be to grant PDL and its customers access to S.R. 73 through the property of
Discount Drug Mart Plaza, an adjacent shopping center then being constructed.
{¶5} In June and July 2002, the Ohio Department of Transportation
("ODOT") began repaving S.R. 73 near PDL's property. During this process, on
the city's instruction, ODOT removed PDL's curb cut to S.R. 73 after
determining that closing the curb cut would best maximize safety and traffic flow.
ODOT replaced the curb cut with a four-inch concrete barrier.
{¶6} Springboro and the general public received a permanent easement
for vehicular and pedestrian traffic between PDL's property and the curb cut for
Discount Drug Mart Plaza that allows access to S.R. 73. The distance from the
center line of the original PDL curb cut to the center line of the Discount Drug
Mart Plaza curb cut is approximately 207 feet. The distance from the eastern
boundary of the PDL property to the center of the Discount Drug Mart Plaza curb
cut is approximately 94 feet. According to Sharma, traffic to and from the
shopping center and the PDL property now maintains a reasonable traffic flow.
{¶7} On July 23, 2002, PDL filed a complaint in the Warren County
Court of Common Pleas claiming that Springboro's elimination of its curb cut
onto S.R. 73 violated a written contract as well as the United States and Ohio
Constitutions. PDL sought a writ of mandamus to compel Springboro to bring
appropriation proceedings under R.C. Chapter 163 and to grant access to certain
documents. PDL also raised claims for trespass, declaratory judgment, and relief
under Section 1983, Title 42, U.S.Code. After Springboro notified PDL of
removal of the case to a federal district court, PDL dismissed its complaint
without prejudice on July 29, 2002.
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{¶8} Nearly three months later, in October 2002, PDL filed this action
for a writ of mandamus to compel Springboro to bring an appropriation action for
the elimination of the curb cut. The city answered, and following the issuance of
an alternative writ, the parties submitted evidence and briefs.
{¶9} This cause is now before the court upon the city's request for oral
argument and on the merits.
Oral Argument
{¶10} We deny Springboro's request for oral argument. The city does
not specify why oral argument would be beneficial. Johnson v. Timmerman-
Cooper (2001), 93 Ohio St.3d 614, 615, 757 N.E.2d 1153. Furthermore, this case
does not involve any conflict between courts of appeals or complex legal or
factual matters that would benefit from oral argument. State ex rel. Stacy v.
Batavia Local School Dist. Bd. of Edn., 97 Ohio St.3d 269, 2002-Ohio-6322, 779
N.E.2d 216, ¶ 13. And although this case does raise a constitutional issue, we
have resolved comparable takings cases without oral argument. See, e.g., State ex
rel. Elsass v. Shelby Cty. Bd. of Commrs. (2001), 92 Ohio St.3d 529, 532-533,
751 N.E.2d 1032; State ex rel. Painesville v. Lake Cty. Bd. of Commrs. (2001), 93
Ohio St.3d 566, 569, 757 N.E.2d 347.
Mandamus--Appropriation
{¶11} PDL asserts that it is entitled to a writ of mandamus to compel
Springboro to commence appropriation proceedings.
{¶12} The United States and Ohio Constitutions guarantee that private
property shall not be taken for public use without just compensation. Fifth and
Fourteenth Amendments to the United States Constitution; Section 19, Article I,
Ohio Constitution. "Mandamus is the appropriate action to compel public
authorities to institute appropriation proceedings where an involuntary taking of
private property is alleged." State ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio
St.3d 59, 63, 765 N.E.2d 345, reconsideration granted in part on other grounds, 96
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Ohio St.3d 379, 2002-Ohio-4905, 775 N.E.2d 493, certiorari denied (2003), ___
U.S. ___, 123 S.Ct. 1484, 155 L.Ed.2d 226. As the relator, PDL has the burden of
proving its entitlement to the writ. Elsass, 92 Ohio St.3d at 533-534, 751 N.E.2d
1032.
{¶13} PDL claims that the city's elimination of its curb cut denied its
right of access to the abutting public highway, S.R. 73, and constituted a
compensable taking. " `In cases of * * * destruction of a fundamental attribute of
ownership like the right of access, the landowner need not establish the
deprivation of all economically viable uses of the land.' " (Emphasis sic.) State
ex rel. Sekermestrovich v. Akron (2001), 90 Ohio St.3d 536, 537-538, 740 N.E.2d
252, quoting State ex rel. BSW Dev. Group v. Dayton (1998), 83 Ohio St.3d 338,
342, 699 N.E.2d 1271. Instead, the landowner must demonstrate "a substantial or
unreasonable interference with a property right." State ex rel. OTR v. Columbus
(1996), 76 Ohio St.3d 203, 206, 667 N.E.2d 8.
{¶14} Consistent with these holdings, "[a] property owner's right of
access to his property from a street or highway upon which it abuts cannot be
lawfully destroyed or unreasonably affected * * *." State ex rel. McKay v. Kauer
(1951), 156 Ohio St. 347, 46 O.O. 204, 102 N.E.2d 703, paragraph one of the
syllabus.
{¶15} Here, however, the city did not destroy or unreasonably interfere
with PDL's right of access to and from S.R. 73. It is true that PDL no longer has
access to and from S.R. 73 directly from its property. It does, however, have
access to and from S.R. 73 via a route that runs parallel to S.R. 73 from its
property to the center line of the curb cut of an adjacent shopping center for a total
length of 94 feet. The fact that drivers must negotiate one additional turn and
travel 207 feet along a secondary access route rather than on S.R. 73 to reach the
PDL parking lot does not warrant a finding of a compensable taking. See State ex
rel. Merritt v. Linzell (1955), 163 Ohio St. 97, 56 O.O. 166, 126 N.E.2d 53,
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January Term, 2003
paragraph two of the syllabus ("Mere circuity of travel, necessarily and newly
created, to and from real property does not of itself result in legal impairment of
the right of ingress and egress to and from such property * * *").
{¶16} We reached a similar conclusion in State ex rel. Noga v. Masheter
(1975), 42 Ohio St.2d 471, 71 O.O.2d 484, 330 N.E.2d 439. In that case, we
denied a writ of mandamus to compel the Director of Highways to commence
appropriation proceedings. We ruled that the state's elimination of the
landowners' direct access to a highway by constructing a curb barricade along the
edge of the highway fronting their property did not constitute a compensable
taking. In that case, the state had constructed a service road that gave the
landowners access to the highway, which was approximately 500 feet from their
property. In the case at bar, the city and the public were granted a perpetual
easement across the adjacent shopping center property to a curb cut to S.R. 73,
which is only about 207 feet from PDL's original curb cut. In Noga, the distance
involved was more than twice as long, yet we did not find the elimination of the
owner's direct access from its property to result in a compensable taking.
{¶17} PDL's reliance on OTR is misplaced. In OTR, 76 Ohio St.3d 203,
667 N.E.2d 8, syllabus, we held that an "owner of a parcel of real property has a
right to access public streets or highways on which the land abuts. Therefore, any
governmental action that substantially or unreasonably interferes with this right
constitutes a taking of private property * * *." (Emphasis added.) Although OTR
referred to the denial of access to the abutting public roadway along the frontage
of the property, we do not view this language as controlling here. This reference
was made in an appreciably different factual context in which the government's
action of building a railroad overpass not only significantly changed the grade of
the property frontage, but also involved the building of massive concrete retaining
walls precluding the property owner from ever developing any access routes onto
the abutting road--an action which the majority found "destroyed or at the very
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least substantially impaired" the owners' right of access to its properties." Id. at
209, 667 N.E.2d 8. We reject the argument that OTR stands for the proposition
that a substantial or unreasonable interference with access to abutting roads
necessarily occurs when that access no longer is direct from the frontage of the
parcel itself.
{¶18} Because the elimination of PDL's curb cut onto S.R. 73 did not
substantially or unreasonably interfere with its access to the property from S.R.
73, we deny the writ. PDL has not established that the city's elimination of the
curb cut represented a compensable taking. By so holding, we need not address
the city's alternative argument that PDL's previously dismissed action constituted
an adequate remedy at law that precludes its entitlement to the writ here.
Writ denied.

LUNDBERG STRATTON, O'CONNOR and O'DONNELL, JJ., concur.

RESNICK, F.E. SWEENEY and PFEIFER, JJ., dissent.
__________________

PFEIFER, J., dissenting.
{¶19} Because the property at issue will not house a preschool forever,
and because this damaging decision will be around forever, I respectfully dissent.
{¶20} The determination of this case comes down to whether the
applicable precedent is State ex rel. OTR v. Columbus (1996), 76 Ohio St.3d 203,
667 N.E.2d 8, or State ex rel. Noga v. Masheter (1975), 42 Ohio St.2d 471, 71
O.O.2d 484, 330 N.E.2d 439. The majority's reliance on Noga is misplaced;
OTR, on the other hand, is directly analogous.
{¶21} In Noga, the appellees owned property abutting U.S. Route 422, a
four-lane highway in Trumbull County. Until 1968, the appellees had direct
access to the westbound lanes of Route 422. In 1968, however, the state changed
the entire character of the roadway, widening it and transforming it into a limited-
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January Term, 2003
access highway. However, the state constructed a service road to which each
property owner had its own access, and that road connected to Route 422.
{¶22} In this case, S.R. 73's character was not transformed. Other
property owners along S.R. 73 retained their direct access to the roadway, unlike
in Noga, where every property owner was affected. Most important, in Noga,
each property owner ended up with its own direct access to a public road; here,
PDL is left without its own direct access to a public road.
{¶23} State ex rel. Merritt v. Linzell (1955), 163 Ohio St. 97, 56 O.O.
166, 126 N.E.2d 53, the case cited by the majority for the proposition that "[m]ere
circuity of travel, necessarily and newly created, to and from real property does
not of itself result in legal impairment of the right of ingress and egress to and
from such property * * *," also addresses a situation completely different from the
case at bar. In Merritt, aggrieved property owners had abutted U.S. Highway 50
in Athens County until the state relocated five miles of that highway to avoid a
long, sweeping curve. These property owners found themselves on the old
portion of the road, which became a part of the Athens County highway system.
Access lanes were built to connect the former U.S. 50 to the new U.S. 50. Again
in Merritt, as in Noga, while the entire character of the roadway was changed, all
landowners retained their own direct ingress and egress from a public road.
{¶24} OTR is the case that is more directly on point. OTR held two
parcels of real property on East Campus View Boulevard in Columbus. Neither
property had established driveways along the properties' frontage on Campus
View Boulevard. Both properties were accessible by other driveways not going
through OTR's Campus View frontage. The city of Columbus decided to extend
Campus View Boulevard, and that project involved changing the grade of the
road and constructing an overpass over railroad tracks. Those changes in the road
prevented OTR from ever developing access routes along the building's frontage
on Campus View Boulevard. Despite the fact that direct access onto Campus
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View did not yet even exist, this court held that the city had substantially or
unreasonably interfered with OTR's right of access. This court rejected the
holding of the appellate court that " `[o]nly where the denial of an undeveloped
right of access results in a complete loss of access to the property * * * will the
denial be found to constitute a "substantial interference." ' " OTR, 76 Ohio St.3d
at 206, 667 N.E.2d 8.
{¶25} In OTR, as here, another way of entering the property remained.
But the city "interfered with an existing property right--the right to access
Campus View Boulevard from appellants' abutting properties." Id., 76 Ohio St.3d
at 209, 667 N.E.2d 8. As the court held in OTR, "The law in Ohio is clear. An
owner of a parcel of real property has a right to access public streets or highways
on which the property abuts." Id. at 211, 667 N.E.2d 8. That law applies just as
clearly to PDL as it did to OTR.
{¶26} A complete denial of direct access to the abutting street
substantially interferes with a property possessor's ownership rights. Here, we
are not dealing with mere potential access to the abutting thoroughfare, but
existing access. Based on OTR, PDL has established a compensable taking. "An
owner of property abutting on a public highway possesses, as a matter of law, not
only the right to the use of the highway in common with other members of the
public, but also a private right or easement for the purpose of ingress and egress to
and from his property, which latter right may not be taken away or destroyed or
substantially impaired without compensation therefor." Merritt, 163 Ohio St. 97,
56 O.O. 166, 126 N.E.2d 53, paragraph one of the syllabus. When the abutting
property owner's access-easement is extinguished, a compensable taking occurs.
Rothwell v. Linzell (1955), 163 Ohio St. 517, 56 O.O. 431, 127 N.E.2d 524.
{¶27} We should not approach this case by merely asking how
unreasonable it is for a daycare business to have its means of street entry moved
207 feet onto an adjoining property. We must consider whether a complete
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January Term, 2003
removal of access directly from this property to the street is a substantial
impairment of the right of access. One might dispute the value of this taking, but
that is a matter properly determined in an appropriation proceeding.
{¶28} Part of the wisdom of OTR is its recognition that unused access is
still valuable. The PDL property will most likely not house a daycare center in
perpetuity. When the owners sell the property, would its value be diminished
without its own curb cut? When faced with properties in a similar location, which
would a buyer choose, the property with or without its own access to the
roadway? The age-old adage is that the three most important considerations in
determining the value of a piece of property are location, location, and location.
From the standpoint of real estate values (excepting residential), direct access to a
busy street or highway is among the most important aspects of location. Renne,
How Industry Changes Are Affecting Restaurant Property Values (Sept./Oct.
1998), Assessment J. 31; Smalley, Measuring the Convenience of Gas Stations
(Oct. 1999), Appraisal J. 399.
{¶29} Our holding today will affect property owners statewide, not
merely the owners and operators of this daycare center. The majority's holding
that a local government may take away a property owner's direct access to the
roadway without compensation undermines the value of every piece of
commercial property. It affects owners, lenders, and developers by creating a
cloud on value. No one can be certain what the owner actually owns.
{¶30} The question may arise, as a practical matter, as to how often
takings like the one in this case might actually happen. The answer is: Often, if
you don't have to pay. The great restraint on this type of arbitrary taking is the
knowledge of governments that they are constitutionally required to pay for what
they take. Our state's commitment to that idea is so fundamental as to be
explicitly set forth in the Ohio Constitution. Section 19, Article I of the Ohio
Constitution states:
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{¶31} "Private property shall ever be held inviolate, but subservient to
the public welfare. When taken in time of war or other public exigency,
imperatively requiring its immediate seizure, or for the purpose of making or
repairing roads, which shall be open to the public, without charge, a compensation
shall be made to the owner, in money, and in all other cases, where private
property shall be taken for public use, a compensation therefor shall first be made
in money, or first secured by a deposit of money, and such compensation shall be
assessed by a jury, without deduction for benefits to any property of the owner."
{¶32} The Fifth Amendment to the United States Constitution is equally
applicable here. The Fifth Amendment declares, "No person * * * shall be * * *
deprived of life, liberty, or property, without due process of law; nor shall private
property be taken for public use, without just compensation."
{¶33} Here, there was no due process and no compensation. Over a July
weekend in 2002, the entrance to PDL simply disappeared, replaced by a four-
inch barrier. Springboro gave PDL no prior notice or warning. While ODOT was
in the neighborhood resurfacing S.R. 73, the city simply instructed the ODOT
contractor to curb over PDL's entry.
{¶34} The majority's decision invites cities to curb over any driveway in
the interest of safety, as long as there remains a plausible, indirect way to reach
the abutting roadway. It establishes the possibility of competitive advantages for
certain landowners. What Wendy's owner wouldn't say, "For the good of the
town, and the safety of its citizens, please close off the driveway to McDonald's.
If you do that, out of our sense of civic responsibility, we will grant McDonald's
an easement, so that anyone hungry for a hamburger can enter through our
driveway. And feel free to `biggie size' that curb!"

RESNICK and F.E. SWEENEY, JJ., concur in the foregoing dissenting
opinion.
__________________
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January Term, 2003

Finney, Stagnaro, Saba & Klusmeier Co., L.P.A., Mark H. Klusmeier and
Paul T. Saba, for relator.

Rendigs, Fry, Kiely & Dennis, L.L.P., Wilson G. Weisenfelder Jr. and
James J. Englert; and Roger C. Eckert, Springboro Law Director, for respondent.
__________________
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