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.

Conflicts in Cincinnati (OH) code concerning designation of historic landmarks construed in favor of property owner

by Kaitlin Heinen

Greenacres Foundation vs. Board of Building Appeals & Zoning Board of Appeals, City of Cincinnati
(Ohio Court of Appeals, October 17, 2012)

Greenacres Foundation is a charity that owns a 22-acre site in Cincinnati. One of the structures on the site (the “Gamble House”) used to be the home of James Gamble, a son of one of the founders of the Proctor & Gamble Company. Greenacres determined that renovation of the house was not economically possible, so it decided to tear it down. On February 18, 2010, Greenacres applied to the City’s director of buildings and inspections for a demolition permit. At the time, the Gamble House property was zoned “SF-10,” single family, without any historic designation. Amit Gosh, the City’s chief building official, found out that there had been prior attempts to save the Gamble House on historic preservation grounds. So Gosh contacted Larry Harris, the City’s urban conservator, for more information. Harris believed that the Gamble House was a “historic structure” with “historic significance” within the meaning of Cincinnati Municipal Code Chapter 1435 and thus could not be demolished without Greenacres obtaining a “Certificate of Appropriateness.” Because Greenacres did not obtain a certificate, the City denied them the demolition permit. Greenacres appealed to the Board of Building Appeals (BBA) and to the Zoning Board of Appeals (ZBA), collectively “the City.” The BBA dismissed the case for lack of jurisdiction, and the ZBA denied Greenacres’ appeal and upheld Harris’ determination of “historic significance.” On appeal, the trial court affirmed the common pleas court’s decision that vacated both the BBA’s and the ZBA’s decisions and remanded the permit application to the City’s director of buildings and inspections, which the City then appealed to the Ohio Court of Appeals.

Cincinnati Municipal Code Chapter 1435, entitled “Historic Landmarks and Districts,” was in effect when Greenacres applied for the demolition permit. Greenacres argued that Chapter 1435 required the city council to pass an ordinance designating a structure as an “historic landmark” before the Chapter could take effect to regulate a structure, and because council had not done so at the time of the application, Greenacres argued it was not required to obtain a certificate. However, the City argued that the zoning code gave the urban conservator authority to determine a structure to be of “historic significance” without any action by the city council, thus requiring the owner to obtain a “Certificate of Appropriateness” prior to demolition. The City claimed that amendments made to the zoning code in 2004 did not require a city council designation before being subject to the zoning code. Before 2004, 1435 provided that a historic structure was “[a]ny improvement to real property which has historic significance and which has been designated as an historic structure pursuant to the provisions of this chapter.” After 2004, a historic structure was defined as “[a]n improvement to real property that has historic significance.” The City argued that since the designation requirement was removed by the 2004 amendments, the urban conservator had the authority to determine the Gamble House to be of “historic significance” and to thus require a “Certificate of Appropriateness.”

The Ohio Court of Appeals did not agree and acknowledged that zoning regulations must be construed in favor of the property owner. Even though the designation requirement was removed in 2004, the code failed to delineate who or what body may determine if a structure is of “historic significance.” The powers of the urban conservator listed in Chapter 1435 prior to 2004 did not include the authority to deem a structure “historic.” When the designation requirement was removed in 2004 it left the code without any delineation of who or what body was empowered to make an historic designation.  Additionally, the 2004 amendment created other conflicts within the code.  The code still requires that a proposed demolition of property must conform to property guidelines before a “Certificate of Appropriateness” be issued, and those “guidelines” were to adopted at the time the city council legislatively designated a historic landmark or district. (1435-11).  Since the court must construe conflicting provisions in favor of the landowner, the Ohio Court of Appeals held that the city council was required to legislatively designate the structure as a “historic landmark” or to be within a “historic  district.” Because the city council had not done so, Greenacres was not required to obtain a “Certificate of Appropriateness” before a demolition permit could be issued.

The City also argued that the common pleas court failed to give enough deference to the decisions of the ZBA and the BBA, which meant that the trial court thus abused its discretion in affirming the common pleas court’s decision. The Ohio Court of Appeals held that this is correct in evidentiary conflicts, but that this case is a question of law, so the argument had no merit.  In addition, the City argued that the trial court incorrectly reversed the ZBA’s decision when it found that the ZBA was without jurisdiction to review a recommendation by the Historic Conservation Board. Amendments to the Cincinnati Municipal Code effective July 20, 2012, address this issue, so the Ohio Court of Appeals held this argument to be moot. In sum, the Ohio Court of Appeals concluded that Greenacres’ application for a demolition permit must be processed according to the law that was in effect at the time it applied for the permit. The trial court’s decision was affirmed.

Investigations by zoning board member outside the hearing process did not give rise to due process violation

by Kaitlin Heinen and Gary Taylor

Timothy Hutchinson v. Wayne Township Board of Zoning Appeals
(Ohio Court of Appeals, 12th Appellate District, September 10, 2012)

Tim Hutchinson filed an application for a conditional use permit from Wayne Township Board of Zoning Appeals (BZA) to operate a Halloween-themed nature walk on part of Jana Hutchinson’s farm, which was zoned A-1, agricultural district. The BZA held a hearing for Tim Hutchinson’s application in July of 2008. At this hearing, it was found that the nature walk would be open 6-8 weekends per year during the Halloween season from 5pm-midnight. Traffic would come from Wayne-Madison Road using two unpaved roads, while parking would be provided in nearby open fields. The BZA  found that Wayne-Madison Road is a narrow, two-lane, dead-end road with no lighting and with narrow berms that steeply slope into drainage ditches, although Hutchinson presented expert testimony from a traffic engineer that Wayne-Madison Road would be able to handle the additional traffic. The BZA also heard complaints from residents in the area, which addressed safety issues arising from the use of Wayne-Madison Road by drivers who are inexperienced with gravel roads as well as the peace and the security of the residents in area that may be affected by the increased traffic. The BZA adjourned the hearing in progress, expressing concern that Tim Hutchinson was not a proper applicant since he was only a tenant on the property and not the landowner. Jana Hutchinson was then joined on the application for a conditional use permit, and when the hearing resumed she provided additional information to BZA about security, traffic, road maintenance, and insurance for the nature walk.

In December of 2008, the hearing was reconvened. Tim Hutchinson testified that he estimated 500 cars would be expected at the nature walk each evening. However, BZA member Carleen Yeager stated that she had researched attendance at other Halloween-themed events and, to the contrary, 500 cars would be a “light night” and that nearly 1500 cars would be expected on a “good night.” Tim Hutchinson countered that the nature walk was new and that he was “starting off small.” At the end of the hearing, BZA member Jerry Gerber moved to deny the Hutchinsons’ application.  The vote was unanimous against the application. The Hutchinsons appealed the BZA’s oral denial of the application to the Butler County Court of Common Pleas and the case was remanded to the BZA for the issuance of a written decision.

In March of 2010, the BZA issued its written decision, which found that the Hutchinsons’ nature walk would be inconsistent and incompatible with the current uses of the surrounding area and would adversely affect the general welfare of neighboring residents in the area. The Hutchinsons’ appealed. In January of 2012, the common pleas court issued its decision that affirmed the BZA’s denial of the Hutchinsons’ application for a conditional use permit.

The issue before the Ohio Court of Appeals in this decision then is that “the common pleas court erred to the prejudice of the [appellants] by affirming the BZA’s decision.” The Hutchinsons claimed that the trial court erred in its affirmation of the BZA’s decision, even though the appellants had satisfied all requirements of the zoning resolution, and that the trial court erred in finding that their due process rights were not violated by BZA member Yeager’s outside investigation.

In regards to the Hutchinsons’ first claim, the township’s zoning code requires that conditional uses must meet several criteria, such as not adversely affecting the health, safety, comfort and general welfare of the surrounding area by threats of traffic hazards, noise disturbances, night lighting, fire hazards, etc. (Section 25.053). However, citing prior case law the court stated that satisfaction of these requirements does not make approval automatic, and that the township zoning code also requires the BZA to “give due regard to the nature and condition of all adjacent uses and structures” surrounding the proposed conditional use. After reviewing the record, the court found that the Hutchinsons did not satisfy all the requirements in the code. Despite the Hutchinsons’ presentation of an expert witness, the BZA had reason to find that the increased traffic would be incompatible with the surrounding area. Thus the trial court did not err in their decision to affirm the BZA’s denial on this count.

As for the due process violation alleged, “[t]he essence of due process dictates, at the very least, that an individual have an opportunity to be heard and to defend, enforce and protect his rights before an administrative body in an orderly proceeding.” Here, Yeager admitted to making “some calls” inquiring into the reasonable number of cars to be expected for a Halloween-themed event. The Hutchinsons argued that her statement negatively affected their ability to have a fair hearing, since they were not able to cross-examine Yeager’s informants as well as Yeager herself, at the risk of losing her vote. Again citing previous caselaw, the court stated that “[t]he combination of investigative, executive and adjudicative functions does not necessarily create a risk of bias or unfairness in an administrative adjudication.” The court noted that the BZA’s decision stated, in part, that it was denying appellants’ application because the Nature Walk “would significantly increase traffic flow, according to applicant’s testimony, by hundreds of cars each evening.” From this statement, according to the court, “it is clear that the BZA did not rely on Yeager’s view that as many as 1,500 cars would be traveling Wayne-Madison Road, but only that 500 cars would be on the road, as indicated by Tim Hutchinson.”

Further, the court noted that the BZA unanimously denied appellants’ application. Thus, even if Yeager’s statements demonstrated her own bias and prejudice toward the Nature Walk, the exclusion of her vote would not have altered the result.   No due process rights were violated.

The judgment of the trial court was affirmed, maintaining the denial of the Hutchinsons’ application for a conditional use permit to operate a Halloween-themed nature walk.





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