River City Capital, L.P. v. Board of County Com'Rs
| Decision Date | 06 June 2007 |
| Docket Number | No. 05-4331.,05-4331. |
| Citation | 491 F.3d 301 |
| Parties | RIVER CITY CAPITAL, L.P., Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, CLERMONT COUNTY, OHIO, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
James F. McCarthy, III, Katz, Teller, Brant & Hild, Cincinnati, Ohio, for Appellant. Mary Lynne Birck, Clermont County Prosecutor's Office, Batavia, Ohio, for Appellee.
ON BRIEF:
James F. McCarthy, III, Katz, Teller, Brant & Hild, Cincinnati, Ohio, for Appellant. Mary Lynne Birck, Clermont County Prosecutor's Office, Batavia, Ohio, for Appellee.
Before: MARTIN and GUY, Circuit Judges; CARR, Chief District Judge.*
This case presents a familiar question in our circuit: whether a plaintiff in Ohio may proceed directly in federal court based on an alleged unconstitutional taking of his private property by a government entity, or whether he must first exhaust Ohio state remedies. We hold that state exhaustion is required, regardless of the nature of the taking, in keeping with this Court's recent decisions in Coles v. Granville, 448 F.3d 853 (6th Cir.2006) and McNamara v. Rittman, 473 F.3d 633 (6th Cir.2007). Because Plaintiff River City Capital has failed to exhaust its state avenues for relief, the case is not ripe for review, and thus we VACATE the order of the district court in all respects, save one minor issue that was collateral to the merits.
The majority of the facts in this case are not in dispute. On July 17 and 18, 2001, there was a five-year rain in Clermont County, Ohio, resulting in a flood emergency for the area. A large sinkhole began to develop at 770 Eastgate South Drive, a commercially-zoned property located in an area known as the Eastgate Square Development. The 770 Eastgate South Drive parcel is owned by River City Capital, an Ohio limited partnership. River City leases the property to the Twins Group, LLP. The Twins Group is a franchisee of Pizza Huts of Cincinnati, Inc., and operates a Pizza Hut restaurant on the property. The River City property lies between two parcels, one (to the west) containing a furniture store called Oak Express, and one (to the east) containing a McDonald's restaurant. The three contiguous properties are bordered on the north side by Route 32 (a state road), and on the south side by Eastgate South Drive (formerly a private road, now dedicated to the County).
A few weeks after the heavy rains, several interested parties attended a meeting to discuss responsibility for repair of the sinkhole. Present at the meeting were: Gayle Jacobs, River City's property manager; Carl Hartman, the Clermont County Engineer; two representatives from the Twins Group; a representative from a company called S.W.S.; and the construction manager for Oak Express. By the time of the meeting, the sinkhole had enlarged to eighteen feet in diameter and was encroaching on the Oak Express property. The Twins Group and Oak Express—i.e., the two tenants on the affected properties—agreed to hire and pay S.W.S. to investigate whether the sinkhole had been caused by a backed-up stormwater pipe running underneath the two properties. Yet when Jacobs spoke with the Twins Group about paying for any necessary repairs, Twins Group representatives specifically disclaimed responsibility beyond what they were paying for the investigation.
No repairs were made to the sinkhole, and on October 22, water backed up onto and flooded Eastgate Drive, forcing the County Engineer to close the road. This prompted the prosecuting attorney for Clermont County to send a letter to the Twins Group, dated November 2. The letter stated in relevant part:
[I]t is our understanding that the Clermont County Engineer . . . has shared with you the fact that we searched the records and found no dedication to public use pertaining to the storm sewer easement as it runs across the following three parcels:
Parcel No. 41-31-05C-221 McDonald's Corporation
Parcel No. 41-31-05C-222 River City Capital
Limited Partnership
(Pizza Hut)
Parcel No. 41-31-05C-223 Visser Real Estate &
Investments (Oak
Express)
Therefore, we are of the opinion that Clermont County has no legal obligation to maintain, upgrade, and/or repair such easement as it runs across the three parcels.
Until the recent flooding occurred, we believed the situation to be a private matter. However, we are now concerned with the possible damage to the road and its underlying structures. In addition, we are concerned about issues of public safety and welfare.
Consequently, we must insist that you take immediate action to repair the storm sewer system. We intend to hold you responsible for any and all damages resulting from this problem.
On November 12, in response both to the county prosecutor's letter and to the fact that its Pizza Hut property was in danger, River City retained Nixco Plumbing to repair the damage. Nixco discovered that a 72-inch diameter stormwater pipe, located immediately under the River City property, had corroded and collapsed. The collapse had caused a shift in the large concrete vault to which the pipe was connected. The weight of the vault had then crushed and destroyed a portion of another 72-inch pipe, this one coming from underneath the Oak Express property and connecting to the River City pipe via the vault. Nixco replaced portions of both 72-inch pipes and reoriented the concrete vault. The entire apparatus was buried approximately thirty feet underground. Nixco also had to repair portions of Oak Express's underground gas and sanitary sewer lines. When this was completed, Nixco refilled the sinkhole with new soil, resurfaced the parking lot, and hired subcontractors to install new power lines and a light pole that were damaged by the sinkhole. River City paid $271,952 for the repairs.
The concrete vault and 72-inch stormwater pipe flowing northward out of the vault comprise the "funnel" for a 280-acre watershed. In other words, the River City property is the low point of the watershed, and thus almost every drop of stormwater runoff must at some point pass beneath it. Approximately 70% of the watershed's runoff collects in a large retention pond south of Eastgate South Drive. The water is then released in controlled fashion from the retention pond through pipes underneath the Oak Express property, ultimately connecting via a 72-inch pipe to the concrete vault. The remaining 30% of the watershed's runoff flows through a 36-inch pipe underneath the McDonald's, ultimately connecting to the opposite side of the concrete vault.1 After flowing out of the concrete vault and northward through the 72-inch pipe along the River City/Oak Express boundary line, stormwater is released into state-controlled pipes underneath State Route 32, and these municipal pipes eventually empty the water into a lake.
On April 22, 2003, River City filed a complaint in federal district court against Clermont County, stating the following causes of action: (1) taking of property without just compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution; (2) denial of due process in violation of the Fourteenth Amendment of the United States Constitution; (3) nuisance; and (4) claim for writ of mandamus, i.e., a writ ordering the County to take responsibility for all subsequent repairs to the 72-inch stormwater pipe on the River City property.
River City's takings claim is a novel one. Its primary allegation is that Clermont County "caused a taking by permitting commercial development on adjacent land and requiring the owners of that land to provide private storm water drainage, and further by requiring the owners to do so by diverting storm water into River City's private storm sewer." D. Ct. Op., 9/9/2005, at 12. Second, River City argues that because the County took over responsibility for two roads in the watershed — Eastgate South Drive and Eastgate Square Drive—via a Dedication Plat in 1995, and because this responsibility included maintenance of the stormwater pipes under the roads, therefore the County "allowed the storm water runoff from its streets to discharge into River City's storm sewer, which caused its collapse, and that amounts to a taking." Id. at 14. Finally, River City argues (in the alternative) that the 1995 dedication actually effected a transfer of River City's reciprocal easement to the public; that is, the 1995 dedication transferred responsibility for the stormwater pipes under the River City property from River City to the County. Id. at 16-18. The nub of River City's takings claim was perhaps best encapsulated by Anthony Nickert, general partner of River City, during his testimony at trial:
[W]e have a piece of property that's approximately one acre, and . . . I've learned during the last couple months, that 240 or 280 acres drain into this pipe and that all of a sudden we have become responsible for that pipe, all that other drainage that goes in there. We put a trickle into that pipe. . . . It's not moral that they would expect me to bear the burden of all that water coming through that pipe on our property.
The County filed two motions in response: first, to exclude River City's proffered expert witness for failure to comply with disclosure provisions under Fed R. Civ. P. 26; and second, to dismiss for lack of jurisdiction because River City had failed to file the proper proceeding in state court prior to initiating its Fifth Amendment takings claim in federal court. On December 10, 2004, the district court denied both motions.
In examining the County's motion to exclude, the district court noted that River City had failed to comply with Rule 26(a)(2)(B) within the deadline set by the court. Expert disclosures were due on July 21, 2004,...
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