c ll:d - sconet.state.oh.us in the supreme court of ohio state of ohio ex rel. case nos. 2008-0029...
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IN THE SUPREME COURT OF OHIO
STATE OF OHIO EX REL. CASE NOS. 2008-0029RICHARD C. GILBERT, and 2009-0753
STATE OF OHIO EX REL.LEE A. GILBERT,
Appellants/Relators,
CITY OF CINCINNATI,
HAMILTON COUNTY BOARD OFCOMMISSIONERS, and
THE METROPOLITAN SEWERDISTRICT OF GREATERCINCINNATI,
Appellees/Respondents.
ON APPEAL FROMTHE HAMILTON COUNTYCOURT OF APPEALSFIRST APPEI;1A STA; 1 c
C LL:D I)
NOV 09 2009
CASE NO. C-07-0166COURT 0,I
REPLY AND RESPONSE TO APPELLEES'MEMORANDUM IN OPPOSITION AND CROSS-APPEAL
Paula Boggs Muetliing (0080018)Counsel of Record
Terrance A. Nestor (0065840)Counsel of Record
City of Cincinnati Law Department
401 Plum Street, Room 214
Cincinnati, Ohio 45202
Telephone: (513) 352-3327
Facsimile: (513) 352-1515
Email: terry.nestorC^?cincinnati-oh.gov
paula.b oggs@cincinnati-or.. govAttorneys for Appellees/ Cross-Appellants/ Respondents City ofCincinnati, Hamilton County Board ofCommissioners, and the MetropolitanSewer District of Greater Cincinnati
MANLEY BURKEA LE6AL PNOF'FSSfONAL ASSOCIA'[7ON
Matthew W. Fellerhoff (0064005)Counsel of RecordDaniel J. McCarthy (0078388)MANLEY BURKEA LEGAL PROFESSIONAL ASSOCIATION
225 West Court StreetCincinnati, Ohio 45202-1098
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: mwfomanleyburke.com
dmccarthyPmanleyburlce.com
Attorneys forAppellants/RelatorsRicha
CnvCINNATi 45202-1098(513) 92L5525
19rR M0.1513; 721-024tl
TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS .................... .......................................................................................... i
TABLE OF AUTHORITIES .. ..................................................................................................... ii
1. INTRODUCTION ..............................................................................................................1
II. STATEMENT OF THE CASE AND FACTS .................................................................2
III. LAW AND ARGUMENT ..................................................................................................5
A. Cross-Appeal ..........................................................................................................5
Cross-Appeal Proposition of Law No. 1: The LowerCourt Erred by Denying the City's Motion to Supplementthe Record as the Schweir's Affidavit Provides EvidenceThat it is Dispositive of the Legal Issues in This Case ........................................5
Cross-Appeal Proposition of Law No. 2: The Court Erredin Finding That the Gilberts Were Entitled to theExtraordinary Relief of Mandamus for A Physical Taking ...............................7
Cross-Appeal Proposition of Law No. 3: The Lower CourtErred in Denying the City's Motion for Findings of Factand Conclusions of Law .......................................................................................13
B. Citv's Response to the Gilberts' Opening Brief ................................................16
Response to the City's Reply to Appellants' Proposition of Law:A Governmental Regulation Need Not Deprive A PropertyOwner of All Economically Viable Use of the Property in Orderfor the Regulation to Constitute A Taking of the United Statesand Ohio Constitutions ........................................................................................16
IV. CONCLUSION ................................................................................................................21
CERTIFICATE OF SERVICE ..................................................................................................23
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TABLE OF AUTHORITIES
PAGE
Cases
Bd. of County Comn2'rs of Hamilton Counhf v. Florian, et al (1985),1985 WL 9266 (Ohio App. 1 Dist. Jan. 16, 1985) ....................................................... 8, 10, 12
Florian v. Paul et al (1977),No. C-76332, 1977 WL 199743 (Ohio App 1 Dist. June 8, 1977) ............................. 8, 10, 12
Florian, et al v. Bd. of County Conim'rs of Ham.ilton Couraty (1981),No. C-800843, 1981 WL 9934 (Ohio App 1 Dist. Aug. 5,1981) .............................. 8, 10, 12
Lake Erie and Western Rd. Co. v. Conemissioners of Hancock County,63 Ohio St. 23, 57 N.E. 109 ....................................................................................................... 7
Masley v. City of Lorain (1976),48 Ohio St.2d 334, 358 N.E.2d 596 .......................................................................... 8, 9, 10, 12
Norwood v. Horney (2006),2006-Ohio-3799, 110 Ohio St.3d, 353, 853 N.E.2d 1115 ..................................................... 21
Norwood v. Sheen (1933),126 Ohio St. 482, 186 N.E.2d 102 ............................................................................ 7, 8, 12, 19
Penn Central Transp. Co. v. New York City (1978),438 U.S. 104, 98 S.Ct. 2646 ...................................................................................17, 19, 20, 22
Rigby v. Lake County (1991),58 Ohio St.3d 269, 569 N.E.2d 1056 ........................................................................................ 5
State ex rel. Livingston Court Apartments v. City of Columbus (1998),130 Ohio App.3d 730, 721 N.E.2d 135 ....................................................................... 8, 11, 12
State ex rel. Shelly Materials v. Clarlc County Bd. of Co;nm'rs.,115 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d. 59 ................................................... 13, 17
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Sullivan v. Hamilton County Board of Health (2003),155 Ohio App.3d 609, 802 N.E.2d 698 .................................................................................18
The Shopco. Group, et al. v. City of Springdale (1990),66 Ohio App.3d 702, 586 N.E.2d 145 ............................................................................. 19, 20
Statutes
Ohio Revised Code, §2506 ........................................................................................................18
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I. INTRODUCTION
The City, starting with its first sentence and continuing throughout its entire
brief, grossly misstated the law, the facts, the Gilberts' claims, and the Court of Appeals'
second decision in this case. The City's arguments on its Cross-Appeal are centered on
the fallacies that the Court of Appeals departed from established case law and decreed a
new per se taking category for sewer overflows.
The City argues this despite the fact that the Court of Appeals clearly stated
otherwise:
"But the Supreme Court has never held that any overflow of
sewage from a sewage system automatically constitutes a taking.
We emphasize that evidence of one or two sewage overflows onto a
landowner's property would not necessary be sufficient to show a
taking. Proof of damage alone will not entitle a landowner to
compensation."'
The City also attempted to shift all responsibility for their actions onto the
Gilberts. The City, however, is the one that designed Brittney Acres Pump Station to
overflow onto the Gffberts' property. The City permitted the Brittney Acres Pump
Station to repeatedly and continuously dump raw sewage directly onto the Gilberts'
property for over a decade. The City's actions and inactions resulted in the Global
Consent Decree that required placement of a sign labeling the Gilberts' property a
Sanitary Sewer Overflow. The City is the one that failed to upgrade the Brittney Acres
1 Appendix, p.22 at q4.
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Pump Station until the Gilberts were forced to file a lawsuit to protect their
constitutionally guaranteed property rights.
In short, the Gilberts, as property owners, are victims of the City's actions and
inactions regarding its failure to timely upgrade the Brittney Acres Pump Station. The
Gilberts are merely seeking just compensation for the taking of their property caused by
the City's failure to provide sewer capacity and by the repeated dumping of raw
sewage onto their property. Apparently, the City believes it can use the private
property of private citizens for public use without just compensation. Fortunately, the
Court of Appeals correctly applied the law and held that the City must commence an
appropriation action to determine just compensation for the taking of the Gilberts'
property. However, as noted in the Gilberts' opening brief, the Court of Appeals erred
by denying the Gilberts' regulatory takings claim.
II. STATEMENT OF THE CASE AND FACTS
T11e Gilberts will largely rest on the statement of the case and facts set forth in
their opening brief (which is incorporated by reference as if fully restated here).
However, some of the City's clear misstatements must be addressed.
Even the City's statement of the case contains inaccurate statements. The City
argues that the Court of Appeals improperly granted the Gilberts' Motion for Relief
from Judgment because the newly discovered evidence "consisted of information
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available to and in the possession of the Gilberts in the first trial."T In reality, the Court
of Appeals granted the Gilberts' Motion because the City failed to provide documents
requested numerous times that detailed the frequency of sewage overflows onto the
Gilberts' property. The Gilberts point this out not to reargue their Motion, but rather
because the City's misstatement on this point is indicative of their entire brief.
Likewise, the City's statement of facts contains numerous misstatements. For
example, the City argues that the Gilberts claim that, at most, the City dumped raw
sewage onto the Gilberts' property 79 days from 1998 to the present. In reality, the
evidence showed that on at least 79 days there was evidence of a sewage discharge or a
discharge was actually observed at the Brittney Acres Pump Station. (R2, 1730-1866;
Supp. at 94 -137.) The number of days of overflow activity is at least 79 and not more
definite only because the City did not monitor the Brittney Acres Pump Station every
day. (Id.) For instance, the Station was not monitored from February through March
17, 2002. (R2, 1789-90; Supp. at 105, 106.) Additionally, there are other numerous
sporadic dates with no monitoring. (R2,1730-1866; Supp. at 94-137.)
Several pages later in its Brief, the City again argues about the number of
overflows. Instead of looking at the individual reports MSD provided each month to
the Ohi.o EPA, the City relies on self-serving summaries prepared by MSD. The only
appropriate way to determine the rnimber of bypasses is to simply look at all the
2 City's Brief at p. 3.
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monthly reports and add up the days in which there was evidence of an overflow at the
Brittney Acres Pump Station. When such a review is done, it is clear that evidence of an
overflow existed on an absolute minimum of 79 days.
It should, however, also be clear that just because there was no evidence of any
overflows on other days, it does not necessarily mean there was not raw sewage present
in the Gilberts' creek. It stands to reason that raw sewage did not just automatically
disappear from the Gilberts' creek as soon as the City's records no longer indicated
overflow activity at the Pump Station. It is very likely that raw sewage remained in the
Gilberts' creek long after each overflow event.
The City also attempts to blame neighboring septic systems for the sewage in the
Gilberts' creek. The City argues that, "There's nothing in the record to refute that the
sewage in the creek and/or the odor was not a result of one of the failing systems or
their own system's malfunction."3 Contrary to the City's argument, all the evidence in
this case clearly shows that the Brittney Acres Pump Station was designed to overflow
into the Gilberts' creek and that it did in fact overflow numerous times into the Gilberts'
creek. There is not one shred of evidence to support the City's hypothesis that the
sewage from the creek came from any source other than the Brittney Acres Pump
Station. In the face of its own documents that provide hard evidence of a clear taking of
' City's Briefat p. 9.
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property under well-established Ohio law, the City argues the Court of Appeals erred
because it did not discount a suppositional possibility that has no factual support.
Despite the City's other numerous misstatements of facts, the Gilberts will rest
on their opening statement of facts.
III. LAW AND ARGUMENT
This brief will first respond to the propositions of law raised in the City's Cross-
Appeal, and secondly, will reply to the City's Response to the Gilberts' Opening Brief.
A. Cross-Appeal
Cross-Appeal Proposition of Law No. 1: The Lower Court Erred by
Denying the City's Motion to Supplement the Record as the Schweir's
Affidavit Provides Evidence That it is Dispositive of the Legal Issues in
This Case.
The admission or exclusion of evidence is within the trial court's
discretion." In this case, the Court of Appeals, as the trial court in this original action,
properly exercised its discretion and denied the City's last minute request to
supplement the record.
The City filed its Motion to Supplement the Record on Wednesday,
January 28, 2009, which was just days before the Monday, February 2, 2009 oral
argument. This was not the first time in this case that the City attempted to supplement
the record in an untimely matter. The first oral argument in this case was held on
4 Rigby v. Lake County (1991), 58 Ohio St.3d 269, 569 N.E.2d 1056.
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September 17, 2007. The City then moved to introduce additional evidence on October
2, 2007. The Court of Appeals granted the City's first Motion to Supplement the
Record, but properly exercised its discretion and denied the City's second attempt to
untimely supplement the record.
The evidence the City sought to introduce (the status of the long-delayed
upgrade to the Brittney Acres Pump Station) was not necessary for the Court of Appeals
at this stage. The issue of just compensation was not before the Court below. Rather,
the Court was merely tasked with the question of whether a taking occurred. The City
can introduce evidence of the status of the Brittney Acres Pump Station in a future
proceeding to determine just compensation for the taking of the Gilberts' property. On
this issue, the Court of Appeals explained, "We believe that the issue of whether the
upgrade has resolved the problern is more relevant to the issue of damages in the
appropriation proceeding than to issue of whether a taking has occurred."s
Accordingly, the Court of Appeals did not abuse its discretion by denying
the City's second, last minute Motion to Supplement the Record.
5 Appendix, p. 25-26 at 116.
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Cross-Appeal Proposition of Law No. 2: The Court Erred in FindingThat the Gilberts Were Entitled to the Extraordinary Relief ofMandamus for A Physical Taking.
The Court of Appeals did not abuse its discretion in finding a taking of the
Gilberts' property because the City continuously and repeatedly used the Gilberts'
private property for a public purpose: namely by turning the Gilberts' property into a
sanitary sewer overflow. A governmental agency cannot unilaterally decide to use
private property for a public purpose without paying the property owner just
compensation. The Court of Appeals simply ordered the City to commence an
appropriation action to compensate the Gilberts for the public use of their private
property.
Courts in Ohio have long made it clear that when a governmental agency
deposits raw sewage onto another's property, the governmental agency has taken the
property and the owner must be paid just compensation. As this Court held, in the
1933 case of Norwood v. Sheen, "[a]ny direct encroachment upon a land, which subjects it
to a public use that excludes or restricts the dominion and control of the owner over it,
is a taking of his property, for which he is guaranteed a right of compensation by
Section 19 of the Bill of Rights."6
Norwood v. Sheen (1933), 126 Ohio St. 482, 488, 186 N.E.2d 102 (quoting, La)ce Erie and
Western Rd. Co. v. Commissioners of Hancock County, 63 Ohio St. 23, 57 N.E. 109).
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In Sheen, raw sewage was dumped onto Mrs. Sheen's property for four
years. Finally, the City of Norwood constructed a sewer system to stop the deposit of
raw sewage onto Mrs. Sheen's property.7 This Court found that Norwood's actions
constituted a taking of Mrs. Slieen's property $ The Court explained that the raw
sewage that flowed onto Mrs. Sheen's property did not constitute a permanent and
complete taking, "but there was a direct encroachment upon the land which excluded
the dominion and control of the owner over it until the condition was abated. This
constituted legally a taking of the property for a public use."'
Further, a long line of cases in Ohio make it clear that a governmental
agency must pay just compensation for depositing raw sewage onto a neighboring
private property.10 The City's attempt to distinguish these factually similar cases are
without merit. In Masley v. City of Lorain, this Court found that, "[a] municipality in
creating a public improvement, may be liable for causing sewage, percolating water or
surface water to be cast upon land of another, if in so doing, the owner is deprived of
1 0
Id. at 490.
Id. at 494.
Id. at 487-88.
See, Masley v. City of Lora.in (1976), 48 Ohio St.2d 334, 336, 358 N.E.2d 596, 598; State ex
rel. Livingston Court Apartments v. City of Columbus (1998), 130 Ohio App.3d 730, 721
N.E.2d 135; Bd. of County Cornm'rs of Hamilton County v. Florian, et al (1985), 1985 WL
9266 (Ohio App. 1 Dist. Jan. 16,1985); Florian, et al v. Bd. of County Comm'rs of Hamilton
County (1981), No. C-800843, 1981 WL 9934 (Ohio App 1 Dist. Aug. 5, 1981); Florian v.
Paul et al (1977), No. C-76332, 7977 WL 199743 (Ohio App 1 Dist. June 8, 1977).
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any of the use or enjoyment of his property:'17 This Court further held that, "a
municipality is also liable if it causes sewage to be emptied into a natural water course,
thereby creating a nuisance inflicting special and substantial damages on the lower land
owner."12
The City attempts to distinguish Masley by first arguing the Gilberts did
not establish wide-spread encroachment on their property. However, as established
above, the City's own documents clearly show that the Brittney Acres Pump Station
was designed to overflow onto the Gilberts' property and did, in fact, do so on at least
79 different occasions. Furthermore, the City unilaterally reserved the right to dump
raw sewage onto the Gilberts' property at any time. The City took the Gilberts'
property during the entire period the Brittney Acres Pump Station was over capacity
and used the Gilberts' property as their back-up reserve sanitary sewer overflow. Even
when the Brittney Acres Pump Station was not actively dumping raw sewage onto the
Gilberts' property, the City was still using and taking the Gilberts' property for public
use by reserving the right to be able to dump raw sewage at any time onto their
property. The sign erected by the City describing the Gilberts' property as a sanitary
sewer overflow confirms this fact.
" Masley, 48 Ohio St.2d at 336.
12 Id. at 340.
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It is simply not rational to conclude that a residential property owner is
not denied the right to use and enjoy his or her property when it is under constant
threat to be over-washed with raw sewage at every change of the weather. This is what
the City argues.
The City further attempts to distinguish Masley from this case by stating
that the Gilberts were not damaged by the repeated sewage overflows. This assertion
flies in the face of logic and simply cannot be further from the truth. Because of the
continuous possibility of the presence of raw sewage, the Gilberts have not been able to
use and enjoy large portions of their land for years. (R. 223, Supp. at 4.) They have not
been able to breathe fresh air. They cannot go anywhere near the creek. (R. 510; Supp.
at 39.) Further, the raw sewage has greatly reduced the volume marketability of their
property. (R. 246-49; Supp. at 17.) Common sense dictates that potential buyers would
not want to buy property that is frequently overrun with raw sewage overflows. In
fact, the Gilberts, both experienced real estate professionals, testified about the adverse
effects the creek has had and continues to have on the property. (R. 246-47; Supp. at 17.)
The testimony was never contradicted.
The City attempts to distinguish the Florian line of cases in the same
manner as it did for Masley. ihe City's attempts to distinguish Florian likewise fau. The
City's entire argument is, "The Gilberts did not provide any evidence related to the
level or extent of the overflows and utterly failed to provide any evidence of damages
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resulting from overflows of the Brittney Acres Pump Station."13 However, as
established above, the City's own documents established that the City dumped raw
sewage on the Gilberts' property a minimum of 79 days, while also reserving the right
to do so at any other time. The Gilberts specifically testified about the damage they
suffered because of the constant presence or threat of the presence of raw sewage on
their property. There is no evidence in the record to the contrary.
This case is also factually similar to the 10th District Court of Appeals case
State ex rel. Livingston Court Apartments v. City of Columbus.14 In Livingston Court
Apartments, the property owner owned an apartment building in Columbus. The owner
filed a mandamus action alleging that Columbus had a duty to cominence an
appropriation action because the City had allowed the sanitary sewer system to
deteriorate and malfunction causing raw sewage backups into the basement of an
apartment building. The Court of Appeals held that the failure of Columbus to
properly maintain and control the sewer system resulted in an interference with the use
and enjoyment of the owner's property and therefore, constituted a taking.
Accordingly, the Court of Appeals granted the requested writ of mandamus and
ordered the commencement of an appropriation proceeding.'s The court noted, "A long
" City's Brief, p. 18.
14 State ex rel. Livingston Court Apartnients v. City of Colurnbus (1998), 130 Ohio App.3d
730, 741, 721. N.E.2d 135.
15 Id. at 741.
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line of Ohio Supreme Court cases holds that a taking may result where sewage or storin
water from a governmental authority causes damage to a property owner.""
The Court of Appeals in this case properly reviewed the facts presented
and analyzed Ohio precedent established in Sheen, Masley, Livingston Court Apartments
and Florian and concluded that the City's actions constituted a taking of the Gilberts'
property.
The City again attempts to argue that the Court of Appeals' decision held
that any overflow from a public sewer onto private property is a per se taking. The City
is again wrong. Notably, the words "per se" never appear in the Court of Appeals'
decision. Further, as established above, the Court of Appeals specifically stated that its
decision could not be construed in the manner in which the City attempts to twist the
Court's findings. There is no way to construe the decision that included the sentence,
"[w]e emphasize that evidence of one or two sewage overflows onto a landowner's
property would not necessarily be sufficient to show a taking[,]" created a new per se
category of takings cases. There was simply nothing unusual about the Court's decision
in this case. The Court properly applied the relevant facts to appropriate Ohio
precedent and concl.uded that the City, by dumping raw sewage continuously and
repeatedly onto the Gilberts' property, occupied the Gilberts' property and owed the
Gilberts just compensation for the taking of their private property for public use.
16 Id. at 736.
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The City also argues that the Gilberts were not entitled to a writ of
mandamus because they have a plain and adequate remedy of law. However,
following the above-discussed cases, mandamus is the only procedure the Gilberts
could have pursued to ensure just compensation for the taking of their property.
"Mandamus is the appropriate action to compel public authorities to commence
appropriation cases when an involuntary taking of a private property is alleged."" The
Gffberts were not required to seek damages for trespass or any other creative tort the
City could come up with because what is alleged is the taking of their property for
public use. Ohio courts have been very clear that the only procedure that may be used
to seek just compensation for the taking of private property is mandamus.
Cross-Appeal Proposition of Law No. 3: The Lower Court Erred inDenying the City's Motion for Findings of Fact and Conclusions of Law.
The Court of Appeals did not abuse its discretion and properly denied the
City's request for findings of fact and conclusions of law. There was simply no need for
specific findings of fact and conclusions of law when the Court of Appeals issued a
detailed written opinion.
17 State ex rel. Sh.elly Materials v. Clark Couraty Bd. of Comm'rs., 115 Ohio St.3d 337, 2007-
Ohio-5022, 875 N.E.2d. 59, at 115.
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The City essentially raises two factual issues that it argues the Court of
Appeals should have more specifically addressed. First, the City continues to claim that
the evidence was disputed about the number of days that the Brittney Acres Pump
Station overflowed onto the Gilberts' property. In reality, no such dispute exists. The
City's own documents clearly reflect that on at least 79 days from 7.998 to the present,
the Brittney Acres Pump Station had evidence of a discharge or a discharge was
actually observed. The City, ignoring its own reports, argues that the evidence showed
discharges on only eight days during that time period. They argue that the Court of
Appeals was required to specifically find whether the Brittney Acres Pump Station
overflowed at a minimum of 79 times or at the most eight times.
However, such a finding was not necessary to the legal issues present in
this case. As noted above, there is no contradiction that the Brittney Acres Pump
Station was designed to overflow onto the Gilberts' property and did so, according to
the City's own documents, "frequently." A number of exact days is not relevant to
whether or not the City used the Gilberts' private property for a public use. Further, the
City's use of the Gilberts' property extended well-beyond the number of days when an
actual sewage overflow occurred. The City continuously used the Gilberts' property
every day that a sewage overflow was possible onto the Gilberts' property. In sum, the
Court of Appeals did not abuse its discretion in refusing to make a specific finding of
fact on this issue, because it was not required to do so.
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The City also takes issue with the fact that none of the witnesses in this
case testified that they personally witnessed an overflow of sewage onto the Gilberts'
property. While this is technically accurate, it is also an absurd standard. The Gilberts
produced ample evidence that the Brittney Acres Pump Station repeatedly overflowed
onto their property. Three different witnesses from MSD testified that the Brittney
Acres Pump Station was in fact designed to overflow onto the Gilberts' property. (R.
70, R2 1689-92, 427; Supp. at 6887-90, 69.) The Gilberts both testified to observing, either
by sight or smell, raw sewage in the creek. (R. 233, 509-10; Supp. at 4030-39.)
Accordingly, the Gilberts established, beyond clear and convincing evidence, that the
Brittney Acres Pump Station dumped raw sewage onto their property. And, again, the
City produced no evidence to rehrte those facts. No specific findings of fact on this
point was warranted or required because it was never in genuine dispute.
The City finally argues at length that the Court of Appeals erred by failing
to specify the nature of the taking. This is not true. The decision clearly required the
City to appropriate the Gilberts' property. In its summary, the Court stated, "In sum,
we conclude that the Gilberts have shown 1) that they possess a legal right to
appropriation, 2) that the city has a clear legal duty to appropriate the property, and 3)
that they have no adequate remedy at law."'$
18 Appendix, p. 26, at y[17 (emphasis added).
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If the take was for something less than the entire property, the City, at a
minimum, must pay the Gilberts just compensation for taking their property during the
entire time that the Brittany Acres Pump Station was over capacity. As noted above,
even when raw sewage was not physically flowing onto the Gilberts' property, the City
still was using the property as a reserve for raw sewage overflow.
Furthermore, appropriation of the entire property is appropriate under
the Gilberts' regulatory takings claim that the Court of Appeals erred in denying. Even
if the Court of Appeals erred by failing to more specifically identify the taking by
physical invasion, such error was harmless because the City must appropriate the entire
property as a result of the Gilberts' regulatory takings claims.
B. Citv's Response to the Gilberts' Opening Brief
Response to the City's Reply to Appellants' Proposition of Law: AGovernmental Regulation Need Not Deprive A Property Owner of AllEconomically Viable Use of the Property in Order for the Regulation toConstitute A Taking of the United States and Ohio Constitutions.
In addition to the physical taking that occurred in this case because of the
deposit of raw sewage onto the Gilberts' property, a regulatory taking also occurred
because the City prevented the Gilberts from developing their property in accordance
with the zoning provisions by failing to provide adequate sewage options. The Court of
Appeals below did not consider the Gilberts' regulatory takings claim in its second
decision. As stated in the Gilberts' opening brief, the Court of Appeals erred in denying
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the Gilberts' regulatory takings claim because the Court applied the wrong legal
standard. Specifically, the Court iunproperly held that a property owner "must be
denied all economically viable use of the land" in order for a taking to occur. The Court
never even entertained the appropriate analysis set forth in Penn Central,19 Shelly
Materials20 and similar cases. Accordingly, the Court of Appeals' decision should be
reversed on this issue.
While the City acknowledges the Gilberts' argument - that a governmental
regulation must not deprive a property owner of all economically viable use in order for
the regulation to constitute a taking - the City never addressed the merits of the
Gilberts' claim. Specifically, in Penn Central, the United States Supreme Court clearly
held that a property owner need not be deprived of all economically viable use for a
regulatory taking to occur.21 Likewise, this Court, in Shelly Materials, recognized that
Penn Central indeed also applies in Ohio22 Contrary to the City's claim that this was not
raised below, the Gilberts' Verified Petition for Writ of Mandamus specifically stated
that the City's actions and inactions interfered with the Gilberts' investment-packed
expectations of the property. This is at the very heart of a Penn Centrat takings claim.
19 Penn Central Transp. Co. v. New York City (1978), 438 U.S. 104, 98 S.Ct. 2646.
20 State ex rel. Shelly Materials v. Clark Cty. Bd. of Commrs., 1.15 Ohio St.3d 337, 2007-Ohio-5022, 875 N.E.2d 59.
21 Penn Central, 438 U.S. at 104.
22 Shelly Materials, 2007-Ohio-5022 at y[18,19.
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Rather than address the specifics of the Gilberts' claim on appeal, the City
cites to a string of cases for the proposition that a taking could not have occurred in this
case because the Gilberts' were not deprived of all economically viable use of the
property. The City first cites to Sullivan v. Hamilton County Board of Health.23 This case is
muc11 different than the Sullivan case. In that case, the owners of the property at issue
received an offer of $1,250,000.00 if the purchaser could fully develop the subject
property. The offer was reduced to $600,000.00 if certain sewage limitations remained
in place.24 They were not in the Catch 22 the Gilberts were in. The Gilberts attempted
to market and sell the property. However, because of the lack of sewer connections and
the sign stigmatizing the property as a sanitary sewer overflow, the Gilberts could not
sell the property even for a reduced amount. Further, the property owners in Sullivan
had several sewage options including the use of soil absorption systems or by
connecting to the sanitary sewer system. In thiy case, the Gilberts have no such options.
MSD repeatedly denied the Gilberts' sewer connection request while the Ohio EPA and
the Hamilton County Health District denied an on-site septic solution because of the
long planned upgrade of the Brittney Acres Pump Station. Furthermore, Sullivan was
an administrative appeal sought under R.C. §2506 and was not a mandamus case.
13 Sullivan v. Hamilton County Board of Health (2003), 155 Ohio App.3d 609, 802 N.E.2d
698.
24 Id. at 611-622.
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The City then attempts to distinguish November Properties v. City of
Mayfield Heightsu from this case by claiming that the property owners in that case were
denied all beneficial use of their property. However, in that case there was no
discussion of whether the property owners were denied all use of their property. The
November Properties case, however, made it clear that the City had a duty to upgrade the
Brittany Acres Pump Station in a reasonable time period. The Eight District stated:
"The problem of inadequate sewers is not one that arises
immediately, instantaneously or overnight. It is a gradual
development over a long period of time. Engineering data
concerning the location, design and size of sewers is regularly
available to a municipality. Thus, municipalities are, or should be,
aware of these problems and they have the duty and obligation to
develop a reasonable plan for the improvement of their sewer
systems so that they will be adequate at all times."26
Specifically, the City then states, "It is clear that they have not been denied
all economically viable use of their property." Again, there is no requirement under
November Properties or more specifically under Penn Central that a property owner must
be denied all economically viable use of the property for regulatory taking to occur.
Similarly, the City's reliance on the Shopco. Group v. Springdale is
misplaced. In Shopco., the property owner argued that the zoning restrictions
25November Properties v. City of Mayfield Heights (1979), No.36926, 1979 WL 210535 (OhioApp. 8 Dist. Dec. 6, 1979).
26 November Properties v. City of Mayfield Heights (1979), No. 36926, 1979 WL 210535 *17(Ohio App. 8 Dist. December 6, 1979).
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constituted a taking of its property.27 In this case, the Gilberts have no problem with the
zoning restriction on their property. In fact, the Gilberts simply wanted to develop their
property as permitted by the applicable zoning provisions which permit at least ten or
eleven single-family homes.
Further, the City relies on Shopeo. for the proposition that a regulation
must deprive a property owner an economical use of a property to constitute a taknlg.
This simply is not true under the United States Supreme Court and Ohio Supreme
Court precedent. The Gilberts alleged a Penn Central type of regulatory taknlg, but the
Court of Appeals refused to consider the proper analysis and simply followed the City's
misleading and irrelevant case law for the proposition that the Gilberts did not suffer a
taking because they were not deprived of all economically beneficiary use of the
property.
It is ironic that the City argues on its issues on appeal that the Court of
Appeals' second decision radically altered Ohio case law in takings jurisprudence.
However, on their contention, the Court of Appeals specifically limited its holding and
clearly stated that deposit of raw sewage was not a per se taking. However, on the
Cilberts' point on appeal, the Court of Appeals specifically stated that the Gilberts did
not suffer a taking because the City did not deprive the Gilberts of all economically
27 ne Shopco. Group, et al. v. City of Spririgdate (1990), 66 Ohio App.3d 702, 705, 586N.E.2d 145, 148.
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viable use of their property. This was a clear misstatement of law. The Court of
Appeals' heightened requirement, in fact, was a radical departure from established
precedent for regulatory takings because the United States Supreme Court and this
Court have made it clear that a property need not be deprived of all economically
beneficial use of their property for a taking to occur.
IV. CONCLUSION
As this Court emphasized in Norwood v. Horney, the rights associated with
property in American law, "to acquire, use, enjoy, and dispose of property are among
the most revered in our law and traditions."2" The right to property is a fundamental
right and, "[t]here can be no doubt that the bundle of venerable rights associated with
property is strongly protected in the Ohio Constitution and must be trod upon lightly,
no matter how great the weight of other forces."29 In this case, the Gilberts are entitled
to just compensation for the regulatory taking of their property as the physical invasion
taking of their property.
21 Norwood v. Horney (2006), 2006-Ohio-3799, 110 Ohio St.3d, 353, 853 N.E.2d 1115 at y[34.
29 Id. at y[ 38.
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For the reasons set forth above, the Gilberts respectfully request the Court affirm
the Court of Appeals decision regarding the Gilberts' physical invasion takings claiun
and reverse the Court of Appeals decision regarding the Gilberts' regulatory takings
Penn Central claim.
Respectfully submitted,
W. Fellerhoff (0064005)Counsel of Record
Daniel J. McCarthy
MANLEY BURKE
(0078388)
A LEGAL PROFESSIONAL ASSOCIATION
225 West Court Street
Cincinnati, Ohio 45202-1098
Telephone: (513) 721-5525
Facsimile: (513) 721-4268
Email: [email protected]
Attorneys forAppeltants/RetatorsRichard C. and Lee A. Gilbert
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A LEGAL YROFESSIONAI. ASSOCIATION ( arq 72145a?5H.v Na. ^M3) M 42fiN
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Brief of Appellants is being mailed to all
parties entitled to service under Rule 5 of the Ohio Rules of Civil Procedure on the 9th
day of November, 2009.
DanieWMcCarthy
SERVICE LIST:
Paula Boggs Muething
Counsel of Record
Terrance A. Nestor
Counsel of Record
City of Cincinnati Law Department
401 Plum Street, Room 214
Cincinnati, Ohio 45202
Attorneys forAppellees/Cross-Appellants/Respondents City of Cincinnati, HamiltonCounty Board of Commissioners, and theMetropolitan Sewer District of Greater Cincinnati
N:\[LIENTS\Gilbert, Dick & lee\Fteadings\Sup CL Reply & Resp to Oppeltee's Memo in Dpp of [ros Appeal (1106-09).DJM.doc-wlh
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