June 19, 2015
In perhaps the most audacious litigation gambit I have been involved with for a client, we resuscitated a failed Ohio Supreme Court case with a U.S. District Court action that rendered a favorable settlement for our client over…the elimination of his curb cut.
Curbs serve several purposes on a roadway: They are part of the storm water management system, moving water along a road’s edge into a storm sewer, and they operate as an important traffic control mechanism, whereby access onto roadways to and from individual properties is “regulated” by “curb cuts.” A curb cut is the lowering or elimination of an otherwise continuous curb along a roadway, that is too high for traffic to traverse, to allow ingress and egress into private property.
Ohio has a long and rich tradition of allowing, as a constitutional right, access to one’s property through a curb cut onto a public road. See, e.g., OTR v. Columbus (1996), 76 Ohio St.3d 203, 667 N.E.2d 8.
With that as background, in 1998 our client, Preschool Development Co., developed its property along S.R. 73 in Springboro, Ohio into a preschool. It purchased a single family residence that enjoyed an existing curb cut onto S.R. 73, demolished the building, and proposed to build a new preschool there with direct access onto S.R. 73. The City of Springboro at first conditioned zoning approval of the new development on a promise from the developer that when a new drug store was developed next door, we would close our curb cut onto S.R. 73, and access our property only through the drug store parking lot. We objected, citing to the constitutional principle noted above. Eventually, the owner reached a contractual agreement with the City that when the drug store parcel ultimately was developed, the owner would install, at its expense, a median in S.R. 73, thus preventing left turns into and out of the property, a reasonable compromise that allowed the development to go forward while at the same time improving traffic safety along S.R. 73.
As a side note, Ohio law provides, and we certainly believe, that municipalities can require anything they want to assure traffic safety long their roads. But, if they are going to unconstitutionally burden a property to accomplish that, they simply must pay just compensation to the owner to achieve that end. That is the law.
Fast forward 48 months and the new drug store parcel is being developed. The City makes a renewed demand upon the property owner to close his curb cut and access his preschool parcel through the drug store parking lot. We located and dusted off the agreement calling for a median in S.R. 73, instead, and the City persisted. We resisted.
Finally, one fine July Monday morning, my client calls and informs me that, overnight, the City closed his curb cut by building a 6-inch curb in front of his property. His only access to his property is across the drug store parcel. Even worse, he has no legally-enforceable easement across the drug store parcel parking lot, meaning the City of Springboro has effectively land-locked his parcel and rendered it unmarketable.
Under constitutional principles, one is unable to sue a City directly for damages arising from a “taking,” but rather you sue the municipality –in what is called a mandamus action — to make them sue you for eminent domain – and establish judicially in that second proceeding the value of the property taken. Under Ohio law, Plaintiffs have a choice for “mandamus actions,” to proceed initially and directly at the Common Pleas Court, the Court of Appeals, or at the Ohio Supreme Court. Since the law and facts were clearly on our client’s side, we elected to take the case directly and initially to the Ohio Supreme Court.
So we proceeded in an original action at the Ohio Supreme Court for a mandamus requiring that the City “take” our client’s property and pay him just compensation for it. As noted above, this action was supported by a long line of Ohio cases providing that a Curb Cut was a constitutionally-protected interest in Ohio that cannot be taken without just compensation. We were certain the Supreme Court would grant the requested relief, and our client would be compensated for his loss. This confidence was compounded by the fact that the “taking” was not just of a curb cut, but of all legal access to my client’s property – rendering it value-less.
Much to our surprise, the Ohio Supreme Court, in this 4-3 decision, denied our client’s requested relief. They essentially ignored 150 years of precedent on the topic – and the further defective easement rendering our client’s property worthless – in what we felt was a bad decision. The problem was, that by electing to first go to the Supreme Court for our relief, there was no court to which we could appeal the decision. In short, our client was stiffed.
But we were not content to rest on that outcome. The Fifth Amendment to the US Constitution provides that “private property” shall not be “taken for public use, without just compensation.” Thus, again, the City, the State, have the right to take our client’s property (his curb cut access to S.R 73), but they must pay for it. There is federal precedent that when the State’s courts refuse to provide a mechanism to provide that just compensation – in Ohio a mandamus action – one can avail themselves of a remedy directly in federal court.
As a huge bonus to our client, an award of attorneys fees is generally not available to a Plaintiff either for a mandamus action forcing the bringing of a condemnation action, or for the defense of the action to establish damages — thus making much of this litigation impractical if not impossible. But when the State has effectively denied the Plaintiff any remedy for the taking, an action lies under 42 U.S.C. Sections 1983 and 1988, which includes the right in the victorious Plaintiff to recover attorneys fees. In a perverse way, the Ohio Supreme Court had done us huge a favor by making ripe our federal constitutional claims by denying the takings claim in State court.
Thus, we filed an action in the U.S. District Court for the Southern District of Ohio, and drew knowledgeable Judge Arthur Spiegel. Judge Spiegel was fantastic, from the first meeting of the litigants forward. For, as a young attorney, he too was a real estate lawyer, and intuitively understood the principle that one has a property right in and to a curb cut, and was prepared to enforce that right.
The litigation was complex and arduous, with laborious motion work, discovery, expert witnesses, and hearings lasting more than a year. The matter was complicated by issues of res judicata and issue preclusion, as well as the difficult-to-interpret, difficult-to-apply Rooker-Feldman doctrine. Hundreds of hours were spent on briefing, and tens of thousands of dollars were invested on expert witness testimony.
In the end, we filed a motion for partial summary judgment on the question of liability. The City filed a cross motion for summary judgment seeking essentially to extend and enforce the decision of the Ohio Supreme Court. Judge Spiegel thankfully issued a decision – which we thought correct – granting partial summary judgment to the Plaintiff on the issue of liability. Thus, we were headed to trial solely on the question of the value of the taking exacted by the City of Springboro. It was a long-fought-for and sweet victory.
Facing that consequence — a trial solely on damages, where the City would have to pay Plaintiff’s attorneys fees, the City quickly settled – paying our client a fair amount for the “taking” and the full sum of all our client’s attorneys fees expended in the matter.
After five years of battle, the client was completely made whole.
Our deep knowledge of Ohio real estate law, combined with our extensive public interest law experience and incredible persistence and resilience, surely made a difference not only for this client, but to vindicate an important constitutional principle for all Ohioans.