The State Ex Rel. Gilbert v. City Of Cincinnati
| Decision Date | 08 April 2010 |
| Docket Number | 2009-0753.,No. 2008-0029,2008-0029 |
| Citation | 928 N.E.2d 706,2010 Ohio 1473,125 Ohio St.3d 385 |
| Parties | The STATE ex rel. GILBERT et al., Appellants and Cross-Appellees,v.CITY OF CINCINNATI et al., Appellees and Cross-Appellants. |
| Court | Ohio Supreme Court |
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Manley Burke, Matthew W. Fellerhoff, and Daniel J. McCarthy, Cincinnati, for appellants and cross-appellees.
John P. Curp, Cincinnati City Solicitor, and Paula Boggs Muething and Terrance A. Nestor, Assistant City Solicitors, for appellees and cross-appellants.
{¶ 1} This is an appeal and cross-appeal from a judgment granting a writ of mandamus to compel appellees and cross-appellants, city of Cincinnati, Hamilton County Board of Commissioners, and the Metropolitan Sewer District of Greater Cincinnati (collectively, “the city”), to institute an appropriation proceeding for the physical taking of the property of appellants and cross-appellees, Richard C. Gilbert and Lee A. Gilbert, and denying a writ of mandamus to compel the city to commence an appropriation proceeding for the alleged regulatory taking of the Gilberts' property.1 Because the court of appeals properly granted the writ on the Gilberts' physical-taking claim and correctly denied the writ on their regulatory-taking claim, we affirm.
{¶ 2} In 1998, Richard C. Gilbert, through his investment company, purchased a house and over 5.5 acres of property in Cincinnati, Ohio. The property includes a creek that runs along its length. Richard Gilbert refinanced the property in 1999, and the property was transferred to him and his wife, Lee A. Gilbert. The Gilberts have lived in the home on the property since then.
{¶ 3} When the property was purchased, the Gilberts were both real-estate agents, and they intended to develop the property by dividing it into 10 or 11 lots, in accordance with applicable zoning regulations. Although a sewage line is adjacent to the property and a nearby pump station serves it, the property is not connected to the sewer system, and therefore the Gilberts' property uses a septic system.
{¶ 4} Although a means to dispose of the waste from the proposed development was necessary, Richard Gilbert purchased the property without knowing that there would be limitations on his ability to use the sewer system. He had not contacted the sewer district before the purchase and had no expectation that the nearby pump station would be upgraded to accommodate the increased waste from the proposed development. In fact, in 1995, the city knew that the existing pump station was incapable of accepting any additional sewage flow unless it was upgraded.
{¶ 5} After he bought the property, Richard Gilbert was given a copy of a 1997 letter to other property owners in the neighborhood who had inquired about the city's providing sewer service to their property. In that letter, the city explained that it could not provide sewer service, because the existing system was at full capacity. The city noted that it was planning to upgrade the pump station in late 1998, when additional sewer connections would be permitted.
{¶ 6} The Gilberts subsequently sought approval for the development of additional single-family residences on the property, but the requests were denied because the city had not yet upgraded the pump station to handle the additional sewage generated by the proposed development.
{¶ 7} After the Gilberts purchased the property, the pump station repeatedly overflowed, spilling sewage into the creek on their property. Pursuant to a consent decree entered into between the federal and state environmental protection agencies and the city after the city was found to be in violation of the Federal Water Pollution Control Act, the city erected a sign near the creek on the Gilberts' property. The sign stated that the area was a sanitary-sewer-overflow area, that water in the area “may contain sanitary sewage,” and that contact with sewage poses a “potential health risk.” The sewage has impaired the Gilberts' ability to use and enjoy their property and has restricted their control of it.
{¶ 8} In 2007, the Gilberts filed an action in the Court of Appeals for Hamilton County for a writ of mandamus to compel the city to commence an appropriation proceeding. In their mandamus petition, the Gilberts alleged two separate takings claims: (1) a regulatory taking based on the city's failure to improve the sewer-system pump station, which frustrated the Gilberts' reasonable investment-backed expectations, and (2) a physical taking based on the city's failure to upgrade the pump station, which caused raw sewage to directly encroach upon the Gilberts' property by flowing into the creek.
{¶ 9} In November 2007, the court of appeals denied the writ. State ex rel. Gilbert v. Cincinnati, 174 Ohio App.3d 89, 2007-Ohio-6332, 880 N.E.2d 971. The court of appeals concluded that (1) the Gilberts' inability to develop their property to the maximum allowed under its zoning classification had not resulted in a regulatory taking and (2) the Gilberts had failed to present sufficient evidence that sewage from the pump station had overflowed onto their property so as to constitute a physical taking. Id. at ¶ 27-28.
{¶ 10} The Gilberts appealed the court of appeals' denial of the writ to this court in case No. 2008-0029. After the court of appeals entered its judgment, the Gilberts received additional sanitary-sewer-overflow reports from the Ohio Environmental Protection Agency that they had previously requested. Based on this new evidence, the Gilberts filed a Civ.R. 60(B) motion for relief from judgment in the court of appeals and motions in this court to stay the appeal and to remand part of the appeal to the court of appeals to rule on the Civ.R. 60(B) motion. We granted the motions for a stay and a partial remand. State ex rel. Gilbert v. Cincinnati, 118 Ohio St.3d 1445, 2008-Ohio-2831, 888 N.E.2d 421.
{¶ 11} On remand, the court of appeals granted the Gilberts' motion for relief from judgment on their physical-taking claim by ordering the parties to file evidence and briefs on the issue whether “the discharge of raw sewage from a sewer system onto private property constituted a taking.” The additional evidence included testimony that the planned pump-station upgrade, which would eliminate overflows and allow additional sewer-system connections, was close to completion. Following the completion of briefing, the city filed a motion to supplement the record with evidence that the pump-station upgrade had been completed, the sanitary-sewer-overflow sign had been removed, and the upgrade provided capacity for the Gilberts' planned development.
{¶ 12} In 2009, the court of appeals granted a writ of mandamus to compel the city to commence an appropriation proceeding on the Gilberts' physical-taking claim. State ex rel. Gilbert v. Cincinnati, Hamilton App. No. C-070166, 2009-Ohio-1078, 2009 WL 636541. The court of appeals also denied the city's motion to supplement the record and denied the city's subsequent request for findings of fact and conclusions of law. The city appealed the judgment in case No. 2009-0753.
{¶ 13} This cause is now before the court upon the Gilberts' appeal from the judgment of the court of appeals denying the writ of mandamus for their regulatory-taking claim and the city's cross-appeal from the judgment of the court of appeals granting the writ of mandamus for the Gilberts' physical-taking claim.
{¶ 14} “The United States and Ohio Constitutions guarantee that private property shall not be taken for public use without just compensation.” State ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 63, 765 N.E.2d 345, judgment modified in part on other grounds, 96 Ohio St.3d 379, 2002-Ohio-4905, 775 N.E.2d 493; Fifth and Fourteenth Amendments to the United States Constitution; Section 19 Article I, Ohio Constitution. “Mandamus is the appropriate action to compel public authorities to institute appropriation proceedings where an involuntary taking of private property is alleged.” Shemo at 63.
{¶ 15} To be entitled to the requested writ of mandamus, the Gilberts must establish a clear legal right to compel the city to commence appropriation, a corresponding legal duty on the part of the city to institute that action, and the lack of an adequate remedy for the Gilberts in the ordinary course of law. See State ex rel. Shelly Materials, Inc. v. Clark Cty. Bd. of Commrs., 115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59, ¶ 15. The Gilberts claim entitlement to appropriation proceedings for two separate takings of their property-a regulatory taking and a physical taking.
{¶ 16} In their appeal, the Gilberts assert that the court of appeals erred in denying a writ of mandamus to compel the city to commence an appropriation action on their regulatory-taking claim. The Gilberts claim that the city's failure to timely upgrade the pump station and to permit sewage connections or alternatives to dispose of sewage interfered with their reasonable investment-backed expectations for the property. The court of appeals denied the Gilberts' takings claim because they were not able to establish that the city's regulatory actions “denied all economically viable use of the land.” Gilbert, 174 Ohio App.3d 89, 2007-Ohio-6332, 880 N.E.2d 971, ¶ 25.
{¶ 17} The court of appeals erred in so holding because the Gilberts' failure to establish that the city's regulatory actions denied them all economically viable use of their property does not render their mandamus claim meritless. See State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 119 Ohio St.3d 11, 2008-Ohio-3181, 891 N.E.2d 320, ¶ 21. The Gilberts could still establish a partial regulatory taking under the standard specified by the Supreme Court of the United States in Penn Cent. Transp. Co. v. New York City (1978), 438 U.S. 104, 98 S.Ct....
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