City of Cleveland v. Carcione

• Decision Date: 25 April 1963
• Citation: 118 Ohio App. 525,190 N.E.2d 52
• Parties: , 5 A.L.R.3d 891, 92 Ohio Law Abs. 464, 26 O.O.2d [PG53 CITY OF CLEVELAND, Plaintiff-Appellee, v. Nettie CARCIONE, Defendant-Appellant, and Frank M. Brennan, County Treasurer, John J. Carney, County Auditor, Defendants.
• Court: Ohio Court of Appeals

Page 525

118 Ohio App. 525

190 N.E.2d 52, 5 A.L.R.3d 891, 92 Ohio Law Abs. 464, 26 O.O.2d [PG53

CITY OF CLEVELAND, Plaintiff-Appellee, v. Nettie CARCIONE, Defendant-Appellant and Frank M. Brennan, County Treasurer, John J. Carney, County Auditor, Defendants.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 25, 1963.

Charles S. Tricarichi, Cleveland, for defendant-appellant.

Bronis J. Klementowicz, Law Director, City of Cleveland, Gerald F. Sweeney and Thomas E. Lenahan, Asst. Law Directors, for plaintiff-appellee.

KOVACHY, Presiding Judge.

This is an appeal on questions of law from a judgment entered in the Court of Common Pleas wherein the defendant appellant, Nettie Carcione, was awarded $30,000.00 as compensation for property owned by her and appropriated in fee simple by the City of Cleveland.

Council for the City of Cleveland in 1957 passed an ordinance authorizing the St. Vincent Urban Renewal Plan which was followed by the adoption of Resolution No. 2065-59 on October 26, 1959, as an emergency measure, declaring the necessity and intention of appropriating the fee simple title in and to certain real estate for the rehabilitation of a blighted area designated as 'St. Vincent Center Urban Renewal Project Ohio R-13'. Appellant's property, located at the northwest corner of East 28th Street and Woodland Avenue in the City of Cleveland and consisting of a four-story brick building and a threestory brick building, was among the properties specifically described in the resolution in which 'this Council hereby declares its intent to appropriate and does appropriate the fee simple interest * * *.'

However, the appropriation case to assess compensation to be paid by the City of Cleveland to appellant for the fee simple title for her property was not filed until May 4, 1962, in compliance with Ordinance No. 279-62 passed by the Council of the City of Cleveland authorizing and directing the Director of Law to apply to the court to assess compensation for appellant's property. The cause was tried to the jury on June 26, 1962.

The Carcione property was constructed in 1884. It has been in the Carcione family for forty years. The appellant, Nettie Carcione, inherited the property from her husband when he died in 1954. The buildings face Woodland Avenue, a main thoroughfare in the City of Cleveland running in a generally east and west direction. At the commencement of the St. Vincent Renewal Project, Woodland Avenue, both to the east and west, was solidly built up in a community of residential, commercial, retail and small shop, and manufacturing structures. Appellant's buildings contain two stores and living quarters of fourteen suites comprising sixty-two rooms. The surrounding area was populated by families in the low and middle low income groups.

Following the 1957 ordinance, the Commissioner of the Division of Urban Renewal for Cleveland instructed the Cuyahoga County Welfare Department to notify all relief tenants living in the St. Vincent Slum Area to move out of the area. This was done by letter sent to them, with the admonition that if they failed to comply within a reasonable time the Welfare Department would stop their rental payments. Three relief clients living in the Carcione property received wuch notices in the year 1958. Two moved out that same year while the third died in a hospital. The County Welfare Department also received information of streets and numbers in the area where demolitions were planned. The listings of these streets and numbers were distributed to case workers who in turn would instruct people living on these streets to move elsewhere. These people were aided in finding new living quarters by the relocation office of the City of Cleveland, Cleveland Metropolitan Housing Authority, and the County Welfare Department which sent people out to secure addresses of available housing facilities.

The City pursued a policy of demolishing buildings piecemeal in the area as it acquired title to the land. By the time this cause to assess compensation for appellant's property came to trial in the Court of Common Pleas, some five hundred forty-five buildings out of a total of five hundred eighty-four had been razed and only thirty-five to forty structures, including appellant's, remained standing in a vast desert.

The occupancy of the Carcione property decreased progressively, year by year, as these procedures continued. In 1957, when the Renewal Project was undertaken, the stores and all suites were rented but by June, 1962, at the time of the appropriaticn trial, the buildings were all but abandoned and the income from rentals a mere pittance. The gross income those years was as follows:

                 1957  $8110.00
                 1958  7323.00
                 1959  3698.00
                 1960  420.00
                 1961  565.00
                

In June of 1962, at the time of the trial, one store was rented at $50.00 per month and two suites were occupied by tenants out of work and unable to pay.

The decrease in the gross income of this property was directly caused by the activities of the City of Cleveland in furtherance of the Renewal Project. Relief clients were compelled to leave the area before the City was ready to appropriate the properties. Inhabitants were urged to leave the area and new facilities arranged for them elsewhere.

The psychological effect upon the residents by these tactics was to impel them to leave the St. Vincent Renewal Area as soon as possible whether or not the buildings in which they resided were marked for demolition.

Mrs Carcione had spent $11,024.00 upon orders given to her as the owner by the City of Cleveland in 1955, 1956 and 1957 to replace hot water tanks, electrical wiring, gas lines, water lines and roof so that the buildings were in reasonably good condition during the years 1957, 1958 and 1959 when the renewal program was getting under way. The demolition of buildings and the exodus of the inhabitants in the area, coupled with many vacancies in her buildings together with the resulting lack of police protection, permitted extended vandalism during the years 1961 and 1962. By June of 1962 practically all of the plumbing fixtures and hot water tanks had been removed, the plaster was down, doors and windows were broken, window sashes removed, floors torn up, drain pipes and galvanized plumbing torn up, wiring torn out, all fixtures missing, and the roof was leaking, leaving the buildings in an almost complete state of dilapidation.

The real estate experts had varying opinions as to the fair market value of this property. Appellant's expert estimated its value at $51,000.00 in 1958. Appellant, Nettie Carcione, claimed a valuation of

65,000.00 in 1958 when the property was in good condition and occupied. The City's experts placed a valuation on the property of $34,000.00 to $35,750.00 in 1960 and $25,600.00 to $26,850.00 at the time of trial.

Appellant sets forth eleven errors committed to her prejudice by the Court of Common Pleas. Number eleven appears to be the core of the claims of error since the determination of most of the others depends upon its determination.

It reads as follows:

'11. The Court erred in its general charge to the jury, in instructing the jury that the standard by which compensation is to be measured is the fair market value of the property at the time of trial.'

Parts of the general charge of the court to the jury pertinent to the consideration of this assignment of error read as follows:

'The City of Cleveland, for this taking of Nettie Carcione's property is required to compensate her.

'This action is all-inclusive. Nettie Carcione will have no other means of recovery and compensation except in this proceeding. It, therefore, becomes your duty to determine this question: What amount of money will fairly compensate Nettie Carcione for her parcel with the two buildings thereon which the City of Cleveland is appropriating?

'The standard by which compensation is to be measured by you members of the jury, is the fair market value of the property at the time of this trial.

* * *

* * *

'* * * You will consider * * * the character and location of this parcel in Cleveland with relation to the surrounding neighborhood.

'You will consider the use to which the land is now being put and the highest and best use to which the land is reasonably adaptable and to which it may be put in the future within the limitations of the zoning ordinances and classifications applicable to the property as of the date of the trial of this case.

'Further, you will consider the nature of the buildings located on this land, their type of construction, the age and condition of the buildings, the use to which the buildings are now being put and to which with reasonable certainty they would have hereafter been put had the property not been taken by the City of Cleveland.'

Article I, Section 19, of the Constitution of Ohio, in parts pertinent here reads:

'Private property shall ever be held inviolate, but subservient to the public welfare. * * * where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.'

In Illinois Cities Water Co. v. City of Mt. Vernon, 11 Ill.2d 547, 144 N.E.2d 729, 68 A.L.R.2d 384, headnote five of the North Eastern Reporter, Second Series, reads:

'Eminent Domain 'Nothing short of amount which will put condemnee in as good a financial condition after transfer as it was before will conform to constitutional requirement of just compensation.'

The Supreme Court of Rhode Island had the following to say in the case of Stafford v. City of Providence, 10 R.I. 567, at page 571:

'* * * Upon any principle of justice, the person whose land is taken, whether in whole or in part, should be no worse off than his neighbors whose land is not taken, otherwise he does not receive that just...