Co., L.P.A. Eminent Domain in Ohio Quick Takes, Signage Rights, and Awards Anthony J. Coyne, Esq. Email: acoyne@mggmlpa.com Eminent Domain Generally Appropriation of property governed by Chapter 163 of the Ohio Revised Code - a uniform procedure for appropriation by private and public agencies. Chapter 163 can be characterized as a revision and consolidation of appropriation procedures that applied to condemnations by: Public Utilities and Railroads; Local Governmental Units; and The State. 1
Quick Takes v. Non-Quick Takes Quick Takes vs. Non-Quick Takes General Takings Procedure Notice Offer to purchase Appraisal Petition Mediation Contesting the right to take 2
Quick Takes R.C. 163.06(B) Most often utilized for road widening projects, which may include portions of sidewalks, elevator grates, and buildings when necessary. Available only for public road improvements and implementing rail service. Quick Takes Procedures Normal prerequisites apply Appropriating agency determines the value of the property and damages (if any) to the residue, then Deposits that amount with the court; and May thereafter take possession of and enter the property. 3
Quick Takes Other Features Always entitled to a jury trial. Including a jury view. NOT entitled to attorney fees, etc., when the jury award is 125% more than the initial deposit, UNLESS the land used for agricultural purposes as defined in R.C. 303.01 or 519.01. R.C. 163.21. Interest earned on amount deposited. Applies to additional award above deposit. Quick Takes - Challenging Virtually impossible, assuming all procedures are abided. R.C. 163.08 prevents owner from even challenging the right to take, the inability of the parties to agree, and the necessity of the appropriation when property is taken for purpose of constructing or repairing roads in the answer. Rebuttable presumption of proper purpose created by director s statement of intent to construct a state or interstate highway, or construction plans showing the use of the property for constructing or repairing a public road. Owner must rebut this presumption with evidence that this is not the true purpose of the appropriation. 4
Signage Rights Signage Rights Interests in advertising devices fully (and separately) compensable under Ohio and Federal Law. R.C. 163.32-.33; R.C. 5516.08. Highway Beautification Act of 1965, i.e., the Lady Bird Johnson Act (Codified as amended at 23 U.S.C. 131, et seq.) Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 (codified as amended at 42 U.S.C. 4601, et seq.) 5
Signage Rights Highway Beautification Act of 1965 23 U.S.C 131(g) requires that, [j]ust compensation shall be paid upon the removal of any outdoor advertising... device lawfully erected under State law. Just compensation is to be paid to both (1) the sign owner and (2) the owner of the specific portion of real estate for taking the right to erect advertising devices thereon. Ohio adopted the substance of subsection (g) in R.C. 163.31 33 and 5516.07.08. See Wray v. Stvartak, 121 Ohio App.3d 462, 470 71, 700 N.E.2d 347 (6th Dist. 1997). Signage Rights Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 Addresses compensability and valuation of structures Federal case law considered billboards and other advertising devices to be structures under the Act United States v. 40.00 Acres of Land, 427 F. Supp. 434, 440 41 (W.D. Mo. 1976); Whitman v. State Highway Comm n, 400 F. Supp. 1050, 1070 (W.D. Mo. 1975). R.C. 163.60 enacts these provisions. 6
Signage Rights Ohio Uniform Eminent Domain Act Treats advertising devices separately. R.C. 163.31.33 apply to the removal of advertising devices in conjunction with the appropriation of real property. R.C. 5516.07.08 apply only to the removal of advertising devices by order of the director of transportation, or a state, county, municipal, or other local zoning authority exclusive of property acquisition. Signage Rights Just Compensation for Signs R.C. 163.31(C) defines Just compensation as the payment of compensation by a public agency that orders the removal of an advertising device, in the same manner as it would for other property acquired pursuant to this chapter. NOTE: Also applies under R.C. 5516.08 7
Signage Rights Separate Valuation for Signage Rights Dealing with the Undivided Fee Rule, which states that real property is to be valued without regard to separate interests. Sowers v. Schaefer, 152 Ohio St. 65 (1949), at syllabus 2. Potentially problematic because signage interests usually exist pursuant to a leasehold or similar interest. Separate Valuation 8
Separate Valuation Historical Preservation In Boston Chamber of Commerce v. City of Boston, 217 U.S. 189, 195 (1910), Justice Oliver Wendell Holmes stated, [T]he Constitution does not require a disregard of the mode of ownership, of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. It deals with persons, not with tracts of land. And the question is, What has the owner lost? not, What has the taker gained? Separate Valuation Required by Statute Common law concepts altered by state and federal law 42 U.S.C. 4652 and R.C. 163.60 require compensation for structures to be the greater of (a) the increment value the sign contributes to the land; or (b) the fair market value of the sign itself. Note: Ohio has also removed any question whether billboards are compensable as structures through enacting R.C. 163.31 33. 9
Separate Valuation Required by Statute (continued) Valuation requirements under 42 U.S.C. 4652 and R.C. 163.60 remove the Undivided Fee Rule in structure/billboard cases by mandating a determination of the value of the sign as a separate item of property and awarding compensation in that amount. Separate Valuation Case law from other jurisdictions supports this interpretation: Florida: Dep t of Transp. v. Powell, 721 So. 2d 795 (Fla. Ct. App. 1998) (undivided fee rule not applicable to federally funded appropriations due to applicability of 42 U.S.C. 4625); see also Nat l Adver. Co. v. Dep t of Transp., 611 So. 2d 566, 570 (Fla. Dist. Ct. App. 1992). Illinois: Dep t of Transp. v. Drury Displays, Inc., 327 Ill. App. 3d 881, 764 N.E.2d 166 (Ill. App. Ct. 2002) (unpublished portion of decision approved valuation of improved leasehold as separately compensable). 10
Separate Valuation No ruling by an Ohio court indicating the Undivided Fee Rule has been overturned by these provisions. Worth arguing to protect client s leasehold interest and maximize settlement/award. Awards 11
Awards Proving Value Expert Witnesses Appraisers City Planners Engineers Recognized Valuation/Appraisal Methods Market Approach Income Approach Cost Approach Awards Non-compensable Items Dust Dirt Grime Tremors from highways Divider strips Increase or decrease of traffic Richley v. Jones, 38 Ohio St.2d 64 (1974); In re Appropriation of Easements from Lease, Ohio App.3d 120, 449 N.E.2d 780 (7th Dist. 1981). 12
Awards Just compensation consists of compensation for the property actually taken (i.e., the fair market value) and damages to the residue. Hurst v. Starr, 79 Ohio App.3d 757, 762-63, 607 N.E.2d 1155 (10th Dist. 1992). Consideration of highest and best use State court: 3/4 (6 of 8 jurors) of jury must agree Federal court: jury unanimity required unless otherwise stipulated. Awards Includes Loss of Goodwill If: The loss is caused by the taking of the property; and The loss cannot reasonably be prevented by relocation of the business or by taking steps and adopting procedures that a reasonably prudent person would take and adopt in preserving the goodwill. Limitations 13
Forms Forms Jury Verdicts Total Take Exhibit A Partial Take Exhibit B Temporary Take Exhibit C Entry Confirming Verdict Exhibit D Entry of Settlement Exhibit E/Exhibit F - Long 14
Forms Form Jury Instructions Cost to Cure vs. Damage to Residue COST OF CURE In this case, ladies and gentlemen of the jury, you heard testimony to what is commonly referred to as the "cost of cure." Where the damage to the residue can be avoided by repair or restoration work, and the reasonable cost of such work is less than the decrease in the market value of the property, such costs form the measure of damages. The "cost of cure" cannot be utilized to increase the damages to the residue, but may be employed to reduce such damages. If, by the expenditure of money in an amount less than the difference between the before and after fair market value of the residue, the owner could make improvements to the residue to restore its fair market value, then evidence of such "cost of cure" would be admissible to limit the amount of damages. City of Columbus v. Farm Bureau Cooperative Assn., 27 Ohio App. 2d 197. DAMAGE TO RESIDUE The measure of damage to the residue is the loss or depreciation of the fair market value of the property or, in other words, the difference in the fair market value of the remaining portion of the property before and after the appropriation. If (when) you find that the remaining portion of the property has been injured and is less valuable because of the part taken, then you should inquire into such injury and determine, in dollars and cents, the amount of such loss or depreciation caused by the injury. This will be the amount of damages caused to the residue of the property. To determine the amount of damage to the residue of the property taken you will determine the fair market value of the entire property prior to the take and the fair market value of the property after the take. After determining both the fair market value of the property prior to and after the appropriation you will subtract the fair market value of the property after the appropriation from the fair market value of the property prior to the appropriation. This sum is the total compensation. From the total compensation you will deduct the amount determined by you as the value of the land taken and the value of the improvements taken, if any. The remainder or the difference between the market value of the property before the appropriation less the value of the land taken and the value of the improvements taken (if any) is the damage to the residue. Forms COST OF CURE In this case, ladies and gentlemen of the jury, you heard testimony to what is commonly referred to as the "cost of cure." Where the damage to the residue can be avoided by repair or restoration work, and the reasonable cost of such work is less than the decrease in the market value of the property, such costs form the measure of damages. The "cost of cure" cannot be utilized to increase the damages to the residue, but may be employed to reduce such damages. If, by the expenditure of money in an amount less than the difference between the before and after fair market value of the residue, the owner could make improvements to the residue to restore its fair market value, then evidence of such "cost of cure" would be admissible to limit the amount of damages. City of Columbus v. Farm Bureau Cooperative Ass n, 27 Ohio App. 2d 197. 15
Forms Form Jury Instructions Cost to Cure vs. Damage to Residue COST OF CURE In this case, ladies and gentlemen of the jury, you heard testimony to what is commonly referred to as the "cost of cure." Where the damage to the residue can be avoided by repair or restoration work, and the reasonable cost of such work is less than the decrease in the market value of the property, such costs form the measure of damages. The "cost of cure" cannot be utilized to increase the damages to the residue, but may be employed to reduce such damages. If, by the expenditure of money in an amount less than the difference between the before and after fair market value of the residue, the owner could make improvements to the residue to restore its fair market value, then evidence of such "cost of cure" would be admissible to limit the amount of damages. City of Columbus v. Farm Bureau Cooperative Assn., 27 Ohio App. 2d 197. DAMAGE TO RESIDUE The measure of damage to the residue is the loss or depreciation of the fair market value of the property or, in other words, the difference in the fair market value of the remaining portion of the property before and after the appropriation. If (when) you find that the remaining portion of the property has been injured and is less valuable because of the part taken, then you should inquire into such injury and determine, in dollars and cents, the amount of such loss or depreciation caused by the injury. This will be the amount of damages caused to the residue of the property. To determine the amount of damage to the residue of the property taken you will determine the fair market value of the entire property prior to the take and the fair market value of the property after the take. After determining both the fair market value of the property prior to and after the appropriation you will subtract the fair market value of the property after the appropriation from the fair market value of the property prior to the appropriation. This sum is the total compensation. From the total compensation you will deduct the amount determined by you as the value of the land taken and the value of the improvements taken, if any. The remainder or the difference between the market value of the property before the appropriation less the value of the land taken and the value of the improvements taken (if any) is the damage to the residue. Forms DAMAGE TO RESIDUE The measure of damage to the residue is the loss or depreciation of the fair market value of the property or, in other words, the difference in the fair market value of the remaining portion of the property before and after the appropriation. If (when) you find that the remaining portion of the property has been injured and is less valuable because of the part taken, then you should inquire into such injury and determine, in dollars and cents, the amount of such loss or depreciation caused by the injury. This will be the amount of damages caused to the residue of the property. To determine the amount of damage to the residue of the property taken you will determine the fair market value of the entire property prior to the take and the fair market value of the property after the take. After determining both the fair market value of the property prior to and after the appropriation you will subtract the fair market value of the property after the appropriation from the fair market value of the property prior to the appropriation. This sum is the total compensation. From the total compensation you will deduct the amount determined by you as the value of the land taken and the value of the improvements taken, if any. The remainder or the difference between the market value of the property before the appropriation less the value of the land taken and the value of the improvements taken (if any) is the damage to the residue. 16
Forms Form Jury Instructions Temporary Taking The measure of compensation caused by a temporary work easement is the diminution in the rental value of the property if rented (or the diminution in value of the use of the property by the owner) during the temporary appropriation. In this case, the temporary work easements are for a period of two years. During that period of time, the owner has the right of ingress and egress across the easements. Cuyahoga County has the right to use the land in the area of the easements for the demolition and reconstruction of the bridge. After the two-year period of temporary easements, the use of the property will revert to the property owner. City of Norwood v. Sheen, 126 Ohio St. 482. Relocation 17
Relocation Federal and State Relocation Assistance Vested right to reimbursement for covered expenses associated with relocation to displaced persons. Exclusive of compensation for real estate interest. Entitlements provided under Federal and State law. Relocation Federal Law: Relocation assistance available for federallyfunded projects. Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970 (codified as amended at 42 U.S.C. 4601, et seq.): 49 C.F.R. Part 24 18
Relocation State Law R.C. 163.51.62 Implements federal law with respect to federallyfunded projects SB 7 extended these benefits to purely state-funded projects Relocation Benefits 42 U.S.C. 4622 & R.C. 163.53: Actual reasonable expenses in moving the person, the person s family, business, farm operation, or other personal property; Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the head of the displacing agency; 19
Relocation Benefits 42 U.S.C. 4622 & R.C. 163.53 (continued): Actual reasonable expenses in searching for a replacement business or farm, but not to exceed two thousand five hundred dollars; Actual and reasonable expenses necessary to reestablish a displaced farm, nonprofit organization, or small business at its new site, but not to exceed ten thousand dollars. Relocation 49 C.F.R. Part 24 & O.A.C. 5501:2-5-01, et seq.: Costs associated with: Moving the business and personal property; Advertising signs; Replacing personal property; Acquiring permits; Searching for a new location; and Catchall other moving-related expenses that are not listed as ineligible, as the agency determines to be reasonable and necessary. 20
Relocation Maximizing Benefits Planning Early involvement in acquisition process Leveraging relocation in negotiating the acquisition of the real property 21