State ex rel. New Wen, Inc. v. Marchbanks

• Decision Date: 15 January 2020
• Docket Number: No. 2017-0813,2017-0813
• Citation: 2020 Ohio 63,159 Ohio St.3d 15,146 N.E.3d 545
• Parties: The STATE EX REL. NEW WEN, INC., d.b.a. Wendy's v. MARCHBANKS, Dir., et al.
• Court: Ohio Supreme Court

159 Ohio St.3d 15

146 N.E.3d 545

2020 Ohio 63

The STATE EX REL. NEW WEN, INC., d.b.a. Wendy's

v.MARCHBANKS, Dir., et al.

No. 2017-0813

Supreme Court of Ohio.

Submitted May 7, 2019

Decided January 15, 2020

Vorys, Sater, Seymour & Pease, L.L.P., Joseph R. Miller, Thomas H. Fusonie, and Daniel E. Shuey, Columbus, for relator.

Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor, Diane R. Brey, Deputy Solicitor, and L. Martin Cordero, Eric M. Hopkins, and William J. Cole, Assistant Attorneys General, for respondents.

Vorys, Sater, Seymour & Pease, L.L.P., John M. Kuhl, and Elizabeth S. Alexander, Columbus, urging granting of the writ for amicus curiae, Ohio Council of Retail Merchants.

French, J.{¶ 1} Relator, New Wen, Inc., d.b.a. Wendy's, seeks a writ of mandamus to compel respondents, the Ohio Department of Transportation and its director, Jack Marchbanks¹(collectively, "ODOT"), to commence appropriation proceedings for an alleged taking of its real property.We previously granted judgment on the pleadings and dismissed the claims brought by the other relators—Speedway, L.L.C., and Bob Evans Restaurants, L.L.C., and BER Real Estate Investments I, L.L.C.(collectively, "Bob Evans")—in this action.State ex rel. Speedway, L.L.C. v. Wray , 152 Ohio St.3d 1418, 2018-Ohio-923, 93 N.E.3d 1000.For the reasons that follow, we now grant New Wen's request for a writ of mandamus.

I.Background

A.Summary of the issue presented

{¶ 2}State Route 16 ("S.R. 16") generally travels east-west through Licking County, in large part as a four-lane, limited-access, divided highway.Until late 2016, Cherry Valley Road, a.k.a. County Road 128 ("C.R. 128"), a north-south road, intersected S.R. 16 at a four-way, signalized intersection that allowed traffic to enter or exit either road in all directions.ODOT permanently closed the intersection shortly after Thanksgiving in 2016.

{¶ 3}BER Real Estate Investments I, L.L.C., owns the parcel on the southeast corner of the former intersection and leases the property to Bob Evans Restaurants, L.L.C., which operates a Bob Evans restaurant on the site.Speedway, L.L.C., owns the parcel on the southwest corner, on which it operates a Speedway convenience store and fuel center.Other business entities own properties near the former intersection.

{¶ 4} New Wen owns the parcel on the northwest corner of the former intersection of S.R. 16andC.R. 128, on which it operates a Wendy's restaurant.The Wendy's is accessible to cars via an access point on C.R. 128.There is no access point permitting entry to the Wendy's parking lot directly from S.R. 16.Due to this configuration, from 1992, when the Wendy's restaurant opened, to November 2016, when the intersection closed, drivers could access the Wendy's from S.R. 16 by turning north on C.R. 128.

{¶ 5} As a result of ODOT's closure of the intersection, C.R. 128 no longer runs straight across S.R. 16.As drivers on C.R. 128 approachS.R. 16 from either the north or the south, they encounter a dead-end immediately before S.R. 16.On the north side, C.R. 128 dead-ends after the access point to the Wendy's parking lot; ODOT removed the short stretch of C.R. 128 that ran between that access point and S.R. 16, planted grass, erected a fence, and placed a guardrail just south of the Wendy's access point.Drivers on S.R. 16 can likewise no longer turn onto C.R. 128;S.R. 16 simply passes through the point where the intersection used to be.As a replacement for this closure, ODOT opened a new, limited-access interchange approximately 0.4 miles east of C.R. 128.Drivers on S.R. 16 may now reach the portion of C.R. 128 north of S.R. 16 by exiting at that new interchange, proceeding north on a new road called Thornwood Crossing, and taking a local road that parallels S.R. 16.

{¶ 6} ODOT's work did not directly affect the entrance to the Wendy's parking lot from C.R. 128.But as a practical matter, the changes require drivers to travel a longer distance to access the Wendy's from S.R. 16.Prior to the changes, a driver traveling east on S.R. 16 could reach the Wendy's by simply turning left onto C.R. 128 and then turning left again into the Wendy's parking lot—a distance of 0.22 miles from the point where the driver could first see the Wendy's site.After the changes, a driver has to exit S.R. 16 at the new interchange, travel to C.R. 128 using local roads, and then approach the Wendy's from the north—a distance of 1.6 miles.Similarly, the distance that drivers traveling west on S.R. 16 must cover to reach the Wendy's increased from 0.26 miles before the changes to 1.38 miles, using the new interchange and local roads.The distance that drivers leaving the Wendy's must travel to reach S.R. 16 has increased to a similar degree.

{¶ 7} The legal question this case presents is whether ODOT's closure of the access point at the junction of S.R. 16andC.R. 128 constitutes a compensable taking that requires ODOT to commence appropriation proceedings.

B.The evidence in the record

{¶ 8} In 1960, ODOT's predecessor, the Ohio Department of Highways, recorded a centerline plat in the office of the Licking County Recorder showing the proposed route for a limited-access east-west highway that would run through portions of Licking County.That highway—S.R. 16—would bisect C.R. 128.

{¶ 9} The northwest corner parcel bounded by S.R. 16andC.R. 128 was part of a larger property owned by Alice Virginia Jones Olmsted, a.k.a. Alice Virginia Jones LaRue.In April 1961, the state paid Olmsted $23,299 for a permanent highway easement across the southern portion of her property for the construction of S.R. 16(the "S.R. 16 Easement").The state and Olmsted agreed that the payment was compensation for the land taken and for all resulting damages.The S.R. 16 Easement conveyance included an express term by which Olmsted

specifically waive[d] and release[d] any and all right or rights of direct access, or claims thereof, to the present highway improvement to be constructed, or to the ultimate highway improvement to be constructed in the future, as called for by the plans herein referred to, and the execution of this conveyance shall act automatically as a waiver to the State of Ohio in the elimination of any direct access to said highway either for present or future construction.

{¶ 10} At the same time, as part of the S.R. 16 construction project, the state purchased a second easement over the eastern portion of Olmsted's property (the "C.R. 128 Easement").This small easement involved a parcel that was already in large part subject to a preexisting easement for the right of way for C.R. 128.The S.R. 16 project plans identified a "Point of Access" at the juncture of the C.R. 128 Easement and the S.R. 16 Easement, which, according to the affidavit of an ODOT administrator, was created "[i]n order to permit the right of the traveling public within the right of way of County Road 128 * * * southbound to lawfully access ODOT's new limited access right of way."

{¶ 11} New Wen (through a predecessor entity) purchased a portion of Olmsted's property located immediately to the north of the S.R. 16 Easement, on which it opened the Wendy's restaurant.Although New Wen's property does not include any part of the land covered by the S.R. 16 Easement, it does include part of the land covered by the C.R. 128 Easement.Specifically, the eastern border of New Wen's property lies at the centerline of C.R. 128, so the portion of the C.R. 128 Easement to the west of the centerline is on New Wen's property.

C.Procedural history

{¶ 12} In June 2017, New Wen, Speedway, and Bob Evans filed a five-count complaint for a writ of mandamus to compel ODOT to initiate appropriation proceedings.ODOT filed a motion for judgment on the pleadings.

{¶ 13} On March 14, 2018, we granted the motion in part and denied it in part.152 Ohio St.3d 1418, 2018-Ohio-923, 93 N.E.3d 1000.After dismissing all claims brought by the other relators, we granted an alternative writ of mandamus only as to New Wen's claim for a physical taking.The parties submitted briefs and evidence, the Ohio Council of Retail Merchants filed amicus briefs in support of New Wen, and we granted New Wen's request for oral argument.

II.Legal analysis

{¶ 14} The Takings Clauses in the Ohio and United States Constitutions "prevent government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ "State ex rel. R.T.G., Inc. v. State , 98 Ohio St.3d 1, 2002-Ohio-6716, 780 N.E.2d 998, ¶ 33, quotingArmstrong v. United States , 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554(1960).So when private property is taken for a public use, the owner must be paid compensation, "and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."Ohio Constitution, Article I, Section 19.

{¶ 15} When a property owner alleges the taking of private property, mandamus is the correct action to force the state to institute appropriation proceedings.State ex rel. Wasserman v. Fremont , 140 Ohio St.3d 471, 2014-Ohio-2962, 20 N.E.2d 664, ¶ 22, citingState ex rel. Shemo v. Mayfield Hts. , 95 Ohio St.3d 59, 63, 765 N.E.2d 345(2002).To be entitled to a writ of mandamus, a party must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law.State ex rel. Mars Urban Solutions, L.L.C. v. Cuyahoga Cty. Fiscal Officer , 155 Ohio St.3d 316, 2018-Ohio-4668, 121 N.E.3d 311, ¶ 6.As in any mandamus action, a party seeking to compel appropriation proceedings must satisfy these three requirements.Wassermanat ¶ 22-23.

{¶ 16} To establish a taking, New Wen must demonstrate "a substantial or unreasonable interference with a property right."State ex rel. OTR v. Columbus , 76 Ohio St.3d 203,...