State ex rel. Preschool Development, Ltd. v. City of Springboro

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 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 348 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. ¶ 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. 349 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 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, 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 * * * ”). 350 ¶ 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 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.