Dust, noise from bridge project did not give rise to taking or public nuisance claims

by Hannah Dankbar and Gary Taylor

Sommer v Ohio Department of Transportation
Ohio Court of Appeals, Tenth District, December 23, 2014

In 2007 Nick Sommer and Alyssa Birge bought a home in the Tremont neighborhood in Cleveland. In 2010 the Ohio Department of Transportation (ODOT) started construction to replace the “Innerbelt Central Viaduct truss bridge.”

The first phase of the project was to realign the sewer system.  This phase of the project ran from September 2010 to July 2011. The construction was coordinated between ODOT and Northeast Ohio Regional Sewer District (NEORSD). This phase of construction took place around Sommer’s home and resulted in “construction noise” and the closure of traffic lanes around Sommer’s home. The driving of piles into bedrock for the westbound bridge “create[d] a loud banging sound.”  In June 2012 Sommer filed a complaint against ODOT complaining that the construction resulted in “extreme noise, pounding and vibrations *** separate and distinct from that experience by other affected properties,” and causing his home to be uninhabitable.  Sommer sought declaration of inverse condemnation, as well as a public and private nuisance.  The Court of Claims filed an entry granting ODOT’s motion for summary judgment.

Sommer claimed that the Court of Claims was wrong by (1) not examining their inverse condemnation (takings) claim under the proper legal standard, and (2) granting summary judgment in favor of ODOT on their takings claim.

Sommer argued that the proper analysis for the takings claim was the three-part test set forth by the US Supreme Court in 1978 in Penn Central Transportation Co. v New York:

[w]here a regulation places limitations on land that falls short of elimination all economically beneficial use, a taking nonetheless may have occurred, depending on a complex list of factors including (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action.”

ODOT countered that because Sommer waited until the appeal to raise this claim, it should not stand.  The Court of Appeals agreed, noting that Sommer’s response to ODOT’s summary judgment motion contained no citation to either Penn Central, or to its three-part test.  It also noted that the lower court did analyze Sommer’s claim under Ohio state caselaw, specifically a 1966 case that recognized a taking as “any direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it.”  The Court of Appeals found no error by the lower court.

The next claim on appeal is that the Court of Claims was wrong to interpret the Ohio law that requires a physical invasion of property or a complete denial of access and that issues of material fact still remain as to whether ODOT substantially interfered with appellants’ use and enjoyment of their property in such a degree as to amount to inverse condemnation. While Sommer complained about how the construction “prohibits you from relaxing completely,” he was never denied access to his property and did not claim any physical damage to his property, prerequisites to an inverse condemnation claim per Ohio caselaw.  “An increase in vibration and dust caused by a highway improvement, both from the construction and from the increase in traffic from the expanded highway, is not compensable as a taking.”  It is assumed that once the construction is complete Sommer will be able to enjoy his property as he did before the construction.

Finally, among Sommer’s other claims he alleged that “a genuine issue of material fact exists regarding whether the harm suffered by appellants was different in kind than suffered by property owners.”  Ohio defines a public nuisance as “an unreasonable interference with a right common to the public.” A private individual does not have standing to claim a public nuisance unless the individual can show that they suffered an injury or damage that was not incurred by the general public. The Court of Appeals reviewed the uncontroverted evidence that the inconveniences experienced by Sommer were also experienced by others in the neighborhood, and concluded that since Sommer failed to show how the harm done to his is different than the harm to others in the neighborhood his claim cannot stand.

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