Here’s one we’ve been meaning to post for a while. In Bd. of Comm’rs of Mill Creek Park Metro Dist. v. Less, No. 20MA0074 (Apr. 14, 2022), the Ohio Court of Appeals held that the Park District lacked the authority to condemn Less’s property for a bike path, which did not qualify under the authorizing statute as the “conservation of natural resources.”
The District adopted a resolution to build a bike path on an old railroad right of way, a portion of which had already been constructed, and a resolution to acquire a perpetual easement. Ohio statues require the condemnor to provide written notice to the owner 30 days before filing of an eminent domain case. Ohio law also limits the power of agencies such as the District to take to property for forest reserves, and “the conservation of natural resources.”
The owners objected to the taking, asserting that the District had not complied with the notice requirement, and that a taking for a bike path doesn’t qualify as the preservation of natural resources. The owner sought summary judgment, but the trial court rejected the motion.
The court of appeals reversed and entered judgments in favor of the property owner. The court concluded that the District’s taking of a bike path is beyond its statutory authority to take because a bike path isn’t a forest reserve, nor is it the conservation of natural resources, even though under a very generous and deferential reading of the statute, a bike path kinda sorta could be the conservation of a natural resource. As the court noted:
The primary question, in our view, is whether the creation of bikeways or recreational trails, which are for public use, constitute the conservation of natural resources of the state, a purpose which is required under R.C. 1545.11 in order for a park district to appropriate private property for a park or parkway.
Slip op. at 22. Although the court acknowledged that an argument could be made that nearly anything might count as conservation of natural resources (Barista’s note: this recalls the Berman “well-nigh conclusive” language), it adopted a much more sensible reading:
In our view, despite the reasoning set forth in both MacNAB and Snyder, characterizing essentially anything that serves the public and contributes to the health and welfare of the community as the “conservation of natural resources” is a bit of a stretch, especially when considering that the statutory grant of authority contained in R.C. 1545.11 should be strictly construed and it should be construed in favor of the property owner.
Slip op. at 26. A “bit of a stretch” indeed: because “the public need is speculative at best and the harm to the private property owners is great[,]” the court concluded the District lacked the authority to take. Slip op. at 28 (“Although the 2018 resolution is more elaborate, it is still devoid of any language tying the expansion of the bikeway to the general health and welfare of the public or the conservation of natural resources.”). Throw in the rule of construction that eminent domain statutes are read liberally in favor of the property owner and against the taker, and you have the court’s rationale. Having determined that the District could not take Less’s property, the court considered the lack of notice argument moot.
In sum, the ruling on appeal terminated the case in favor of the property owner. Game over, with a very limited remand so the trial court can “carry this judgment into execution.”
We think this is a good one for you to read, and recommend you check it out.
- Hawaii Land Use Law Conference, May 25-26, 2022, Honolulu – Join Us!
- Links From Today’s Georgia Bar Association Conference
- Are The Federal Courts Powerless When A Condemnor Doesn’t Pay Just Compensation?