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in the united states district court for the northern district of ohio western division brandywine estates l.p., 23933 vreeland road flat rock, michigan 49134

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Published by , 2017-02-08 07:10:03

ff - Frankly Inc

in the united states district court for the northern district of ohio western division brandywine estates l.p., 23933 vreeland road flat rock, michigan 49134

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 1 of 20. PageID #: 1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

)
) CaseNo.:
BRANDYWINE ESTATES L.P., )
23933 Vreeland Road
Flat Rock, Michigan 49134 )
) Judge:
)
Plaintiff, )

) VERIFIED COMPLAINT FOR DAMAGES
vs. ) AND INJUNCTIVE RELIEF WITH JURY

) DEMAND ENDORSED HEREON
)
LUCAS COUNTY, OHIO, )
One Government Center ) Marvin A. Robon (0000664)
Toledo, Ohio 43604, ) Zachary J. Muny (0087421)
Serve: Julia R. Bates, Esq. ) BARKAN & ROBON LTD.

Lucas County Prosecutor ) 1701 Woodlands Drive
Lucas County Courthouse ) Suite 100
700 Adams Street, Suite 250
Toledo, OH 43604, ) Maumee, Ohio 43537
) Phone: (419) 897-6500
) Fax: (419) 897-6200
)
and ) [email protected]
) [email protected]

THE ANDERSONS, INC, ) Attorneys for Plaintff
480 W. Dussel Drive )
Maumee, Ohio 43537 )
Serve: Naran U. Burchinow
)
480 W. Dussel Drive )
Maumee, Ohio 43537, )

)
)
and
)
)
PETER GERKEN, )
Lucas County Commissioner )
One Government Center, Ste. 800
Toledo, Ohio 43604 )
)
)
)
LAW orriecs and

BARKAN & PaeaN LTD. )

701 W000LANDS OSIVE )
SUITE 00

MAUMEE. OHIO 4537 4066
141918976500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 2 of 20. PageID #: 2

CAROL CONTRADA )
Lucas County Commissioner )
One Government Center, Ste. 800 )
Toledo, Ohio 43604
)
and )
)
TINA SKELDON WOZNIAK )
Lucas County Commissioner )
One Government Center, Ste. 800 )
Toledo, Ohio 43604

and

DEFENDANT JOHN DOES 1-50, BEING

THE AGENTS, ATTORNEYS AND/OR

OFFICERS OF THE ANDERSONS, INC.

AND/OR LUCAS COUNTY, [Real names and )
)
Addresses Unknown],

/

Defendants.

NOW COMES the Plaintiff Brandywine Estates, L.P., by and through its undersigned
counsel, and hereby files its Complaint for damages and injunctive relief against Defendants, and in
support of its cause, hereby alleges and avers as follows:

NATURE OF THE ACTION
I. This civil rights case challenges the tortious misconduct and conspiracy to commit the same
against Plaintiff Brandywine Estates, L.P. by the Defendants through the use of eminent domain
power under color of state law and in violation of the Ohio Constitution. Plaintiff is the record
owner of certain real property located at 6538 Salisbury Road within Monclova Township, Lucas
County, Ohio. Defendant Lucas County has approved and, upon information and belief, initiated in

LAW OFFICES -2-

BARKAN & RaDON Lrc

1701 WOODLANDS DAIVE
SUITE 00

AAUHEE, OHIO 43537 4056
14101007 6500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 3 of 20. PageID #: 3

the Lucas County Court of Common Pleas, an eminent domain/appropriation proceeding against
Plaintiff in order to Take Plaintiffs land to extend the public roadway identified as Briarfield
Boulevard. This proposed extension will serve no purpose other than to create a dedicated access
point for the planned corporate headquarters of The Andersons, Inc. which is scheduled to
commence construction in May 2015. Immediately, after the eminent domain action was filed in the
Lucas County Common Pleas Court, the Andersons acquired approximately 60 acres of the

Brandywine Golf Club.
2. Defendant Lucas County’s actions constitute the appropriation of private land, in essence, for
the benefit of another private owner in the name of economic development. Such conduct was

specifically and explicitly prohibited by the Ohio Legislature via amendments to Ohio Rev. C. §

163.01, et seq. following the U.S. Supreme Court’s decision in Kelo v. City ofNew London, 545 U.S.

469 (2005).
THE PARTIES

3. Plaintiff Brandy Wine Estates, L.P.. is a limited partnership engaged in the business of
developing and managing multi-family residential housing properties. At all relevant times herein
alleged, Plaintiff Brandywine Estates L.P. was the record owner of certain real property located at the
intersection of Bdarfield Boulevard and Salisbury Road in Monclova Township, Lucas County,

Ohio.
4. Defendant Lucas County, Ohio is a geographical and political subdivision located within the
State of Ohio. At all relevant times alleged herein, certain real property owned by the Plaintiff which
is the subject of this action, was situated exclusively within the geographic boundaries of Defendant

Lucas County, Ohio.

LAW OFFICES

BARKAN & P050N LTD.

WOODLANDS DRIVC
SUC :00

M.McE. ONio 4j53.4tSS

4:0,5976500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 4 of 20. PageID #: 4

5. Defendant The Andersons, Inc. (“Andersons”), is a corporation formed and organized under
the laws of the State of Ohio with a principal place of business in Maumee, Lucas County, Ohio. For
the 2013 fiscal year Defendant Andersons, inclusive of its subsidiaries, reported approximately $5.6
billion in total revenue. At all relevant times herein alleged, Defendant Andersons was engaged in
plan for the development of a new world headquarters to be located at the current site of the
Brandywine Country Club in Monclova Township, Lucas County, Ohio, adjacent and contiguous to
the property of Plaintiff. The putative location of the new headquarters is directly north of the real
property owned by Plaintiff.
6. Defendant Carol Contrada is, and at all relevant times herein alleged was, employed as a
County Commissioner for Defendant Lucas County, Ohio. Defendant Contrada, acting in her official
capacity approved the use of appropriation/eminent domain proceedings against Plaintiff which are
the subject of this action knowing or should have known it was illegal.
7. Defendant Tina Skeldon Wozniak is, and at all relevant times herein alleged was, employed
as a County Commissioner for Defendant Lucas County, Ohio. Defendant Skeldon Wozniak, acting
in her official capacity approved the use of appropriation/eminent domain proceedings against
Plaintiff which are the subject of this action knowing or should have known it was illegal.
8. Defendant Peter Gerken is, and at all relevant times herein alleged was, employed as a
County Commissioner for Defendant Lucas County, Ohio. Defendant Gerken, acting in his official
capacity approved the use of appropriation/eminent domain proceedings against Plaintiff which are
the subject of this action knowing or should have known it was illegal.
9. John Doe Defendants 1-50 (fictitious-name designations of one or more individuals,
partnerships, corporations, and/or other entities whose actual identities have yet to be determined)

LAW orriccs
BARKAN & RosoN LTD.

701 WOODLANDS DRIVE
SUITE ICC

MAUMEE. OHIO 435374058
4191 897 6500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 5 of 20. PageID #: 5

being the agents, attorneys and/or officers of The Andersons, Inc. and/or Lucas County, at all times

relevant hereto were in engaged in a conspiracy to appropriate real property belonging to the Plaintiff

located within the geographic confines of Lucas County, Ohio for the sole purpose of benefiting

Defendant Andersons. Upon information and belief, the John Doe Defendants, as a direct and/or

proximate consequence of the conspiracy alleged herein, have derived, or are likely to derive,

substantial revenue from these activities.

10. At all times alleged herein, Defendants include and included any and all parents, subsidiaries,

affiliates, divisions, franchises, partners, joint venturers, and organizational units of any kind, their

predecessors, successors and assigns and their officers, directors, employees, agents, representatives

and any and all other persons acting on their behalf

11. At all times herein mentioned, each of the Defendants was the agent, servant, partner,

predecessors in interest, aider and abettor, co-conspirator and joint venturer of each of the remaining

Defendants herein and was at all times operating and acting with the purpose and scope of said

agency, service, employment, partnership, conspiracy and joint venture.

JURISDICTION AND VENUE

12. This Court has jurisdiction over this action pursuant to 28 U.S.C.A. § 1331 as Plaintiffs

claims arise under Defendants’ violations of the Constitution and laws of the United States of

America the State of Ohio.

13. This Court also has jurisdiction over this action pursuant to 28 U.S.C.A. § 1367.
14. Venue is proper in the Northern District of Ohio pursuant to 28 U.S.C.A. § 1391, as the

events giving rise to Plaintiffs claims occurred within this district, and Defendants reside and/or

conduct business in the Northern District of Ohio.

LAW crrIcEs 5..

BARKAN & ROBON LTD.

1701 WOODLANDS DRIVE
SUITE DO

MAUHEE. OHIO 43537-4056
14151 897-6500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 6 of 20. PageID #: 6

FACTS
15. Plaintiff owns and operates an apartment complex comprised of twen’-one (21)
condominium units at 6538 Salisbury Road, Monclova Township. Lucas County, Ohio and rents
those units to various families.
16. In 2010, the Ohio Department of Transportation widened Salisbury Road, upon which the
Plaintiffs property abutted. As part of the settlement, a Court Order and settlement was entered with
the Ohio Department of Transportation, providing that Brandyway Lane (a dedicated roadway)
which is on the easterly end of the Plaintiff’s property would be signalized with traffic signals at the
intersection of Briarfield Boulevard and Salisbury Road so that free and uninterrupted ingress and
egress could be provided to the apartment complex owned by Plaintiff In this respect, the Ohio
Department of Transportation has signalized the lights on Salisbury Road and Briarfield Boulevard,
which dead ends into the apartment complex, so that all the other streets have a red light when there
is a green light for Brandyway Lane. This has worked remarkably well for traffic and for the
residents of the large apartment complex.
17. Sometime in late 2013 early 2014, Defendant Andersons announced that it needed a new
corporate world headquarters due to the inability of its current headquarters on Illinois Avenue,
Maumee, Ohio to sufficiently house the growing company. Defendant Anderson has subsequently
contracted with the Brandywine Country Club to purchase approximately 60 acres of land and has
purchased other, adjacent land owned by the Lucas County Port Authority for the building of a new
world headquarters.

LAW OFFICES -6-

BARKAN & Rosow Lto.

1701 WOODLANDS DPWE
SUITE 00

MAUHEE, OHIo 43537 4086
4191897 6500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 7 of 20. PageID #: 7

18. The land for the new headquarters to be constructed by Defendant Andersons is directly
behind, arid abuts, the real property owned by Plaintiff which consists of an apartmentlmulti-family
complex consisting of 71 units in three (3) buildings.
19. In developing the plan for its new headquarters, the Collaborative, the architectural firm
engaged by Defendant Andersons prepared a site plan showing an entryway directly from Briarfield
Boulevard. Said entryway would require the extension of Briarfield Boulevard for about 450 feet
north of Salisbury Road and through the middle of the building owned by the Plaintiff and occupied
by twenty-one different families. A copy of the site plan is attached hereto as Exhibit 1 and
incorporated herein by reference.
20. No one from Defendant Andersons ever contacted the Plaintiff about providing an entryway
or purchasing Plaintiffs property
21. Instead, even though the plans showed the roadway, upon information and belief, secret
meetings were held between representatives of Defendant Andersons, the John Doe Defendants and
representatives of Defendant Lucas County, Ohio including the Defendant County Commissioners,
to use the guise of eminent domain law to take the property of the Plaintiff.
22. In order to use its eminent domain power, the Defendant Lucas county, Ohio, the Defendant
County Commissioners, and John Doe Defendants secured the services of Mannik Smith Group to
create a traffic study indicating that other development was going to occur in the area which would
require a realignment of Brandyway Lane and its vacation, and the extension ofBñarfield Boulevard.
A copy of a map of the proposed Briarfield extension project is attached hereto as Exhibit 2 and
incorporaLed herein by reference.

LAW OFFiCES 4..

BARKAN & PonoN LTD.

170[ WOODLANDS DRIVE
SUITE 00

MAUMEE. OHIO 435374056
4101607 6500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 8 of 20. PageID #: 8

23. The August2014 report issued by Mannik Smith provided for seven aLternatives. However,

these alternatives were pretextual in that the stated “preferred” option and the one approved by

Defendant Lucas County was to extend Briarfield Boulevard through Plaintiff’s property to a dead

end on what is now the second golf hole of the Brandywine Country’ club’s golf course. Ultimately

however, tins extension will abut the entryway to the new world headquarters for Defendant

Andersons.

24. Defendant Lucas county, Ohio, through its commissioners, gave unauthorized authority to

certain agents that did drilling and testing on the property of the Plaintiff without notice, without

consent and without compensation in the winter of 2015. During that testing and drilling, they

severed the cable wires to the twenty-one residents in the Brandywine Estates Apartment building,

interfering with the peaceful use and enjoyment of the property of the Plaintiff and its tenants

interrupting internet and television usage which was repaired by Plaintiff

25. In the August 2014 Mannik Smith report on Page ES-i it is stated that the Briarfield

Boulevard extension was necessary to meet the needs of development. However, the only

development to be served by the extension of Briarfield Boulevard is Defendant Andersons’ new

building.

26. Knowing this, the various John Doe Defendants, Defendant Andersons, Defendant Lucas

County, Ohio, and the defendant County Commissioners conspired with one another to use the guise

of eminent domain law to take private property from the Plaintiff under the guise of governmental

authority.

27. Needless to say, private property cannot be taken for private use by a governmental agency.

Knowing this, all of the Defendants conspired with one another to abuse the law, abuse their power

LAW OFFICES -8-

BARKAN & RoBON LTD.

1701 WOODLANDS DRIVE
SUITE 100

MAUHEC, OHIO 435374056
14191997 6500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 9 of 20. PageID #: 9

and violate the sanctity of the constitutions of federal and state statutes in an effort to deprive the
Plaintiff of its property rights.
28. In addition, Defendant County Commissioners and various John Does provided for a Notice
of Hearing dated March 3,2015 for the County to have a public hearing on the necessity of the take.
At that hearing a brief summary was given by an engineer for the County and, in spite of vehement
opposition to the project and explicit reference made to the fact that the project was for the benefit of
Defendant Andersons---and not the general public---the Defendant County Commissioners
unanimously passed a Motion and Resolution authorizing appropriation issue without discussion or
consideration.
29. The resolution passed by the County on March 3, 2015, makes zero reference to the
Brandywine Golf Course take or to the Defendant Andersons’ planned headquarters. Instead, its
language provides a pretextual basis for the appropriateness of the appropriation.
30. As a direct and proximate result of the unlawful activity and conspiracy of the Defendants
herein alleged, Plaintiff has and will suffer substantial economic damage as well as severe irreparable
harm.

FIRST CAUSE OF ACTION
(Wrongful Use of Governmental Power and Violation of Constitutional Rights-

Defendant Lucas County, Ohio)
31. Plaintiff hereby incorporates by reference each preceding and succeeding paragraph as though
set forth fully at length herein.
32. Attached hereto as Exhibit 2 is a true copy of the existing diagram for the traffic patterns at
the intersection of Briarfield Boulevard, Salisbury Road, and Brandyway Lane. Briarfield Boulevard
intersects Salisbury Road approximately 75-100 feet west of Brandy Way Lane. Defendant Lucas

LAW OFFICES

BARKAN & RCBQN LTD.

1701 WOODLANDS DOIVE
SUITE DO

MAUMEE. OHIO 435374050

4191097 0500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 10 of 20. PageID #: 10

County, Ohio is proposing the closure of Brandyway Lane and extension Briarfleld Boulevard to the

north of Salisbury Road.

33. The proposed extension of Briarfield road will create dedicated road access from the

intersection of Briarfield Boulevard and Salisbury road to the putative site of Defendant Andersons’

new world headquarters.

34. The proposed extension will traverse directly across the real property owned by the Plaintiff

Furthermore, the extension of Briarfield Boulevard will require the demolition of a 21 unit

condominium-style apartment complex on Plaintiffs property and will displace 21 families.

35. In the Executive Summary of the August2014 Mannik Smith Group Report prepared at the

behest of Defendant Lucas County, Ohio the engineer explicitly refers to development of an

“overbuy” parcel as a result of the planned Briarfield Boulevard extension. The development

referenced identifies a 150,000 square foot building. A copy of the August 2014 Mannik Smith

Traffic Study Report is attached hereto, and incorporated by reference, as Exhibit 3 at ES-i. Upon

information and belief, the 150,000 square foot building referred to in the report is Ddendant

Andersons’ planned world headquarters.

36. In support of the proposed Briarfield Boulevard extension, the August 2014 Maimik Smith

Group Report specifically notes the following:

given its cost and potential for accommodating larger traffic volumes, Design
Alternate F should be considered at this intersection if development occurs on an
“overbuy” parcel.

Id.atES-l.

37. The “overbuy” parcel referred in the August 2014 Mannik Smith Group Report is currently

utilized as golf holes within the Brandywine Country Club. Thus, the entire purpose of the report is

LAW Drr’CES —10-

BARKAN & R060N Lro.

‘DI WOODLANDS DRIVL
SuilL ‘00

MAUHEC. OHIo 435374056

4II 537 0500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 11 of 20. PageID #: 11

betrayed by Mannik Smith’s acknowledgement that the sole and/or primary purpose of the Traffic
Study/Report was to support the necessity of the Briarfield Boulevard extension for the exclusive
benefit of Defendant Andersons. Indeed, if it not for the putative development of the
Brandywinc Golf Course by Defendant Andersons, the proposed Briarfield Boulevard
extension would create a “road to nowhere” dead-ending at the second hole of the Brandywine
Country Club golf course.
38. On March 3,2015, the County held a public hearing in the chambers of the Lucas County
Commissioner’s Office as a “rubber stamp” prerequisite to the initiation of appropriation
proceedings against the Plaintiff. During the public hearing, which was attended by executives from
Defendant Andersons, the County Commissioners made no inquiry of the adverse impact of the
proposed Briarfield Boulevard extension on the property owner, nor did they devote any
consideration or discussion to the limited scope of Defendant Lucas County, Ohio’s appropriation

authority under Ohio Rev. C. § 163.02 1(A) as amended by Senate Bill 7 in 2007 which specifically

prohibits private-to-private appropriation:
163.021 — Taking necessary for public use - blight —veto.
No agency shall appropriate real property except as necessary and for a public use. In
any appropriation, the taking agency shall show by a preponderance of the evidence
that the taking is necessary and for public use.”

Id.

39. The strict statutory prohibition against the private-to-private appropriation undertaken by
Defendant Lucas County, Ohio in this case is further buttressed by the legislative history of Senate

Bill 7, compiled by the Ohio Legislative Service Commission, which amended Ohio Rev. C. §

163.01, ci seq. which shows that the Ohio legislature was unequivocal in its purpose in amending

LAW OFFICES —11-

BARKAN & RonoN LTD.

1701 WOODLANDS DRIVE
SUITE DO

MAUMEE. ONID 43537-4056

.1016076500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 12 of 20. PageID #: 12

this chapter of the Ohio Revised Code to prohibit a governmental agency from using its
appropriation power for private development. See Legislative History of Senate Bill 7, attached
hereto as Exhibit 4.
40. Further emphasizing the “rubber stamp” nature of the March 3, 2015, public hearing, on
February 23, 2015, Defendant Lucas County, Ohio employed certain contractors to enter onto the
property of the Plaintiff and to conduct drilling and test borings. See Exhibit 5.
41. Said entry onto Plaintiffs property and the drilling and boring performed were conducted
without license or permission of the Plaintiff and, upon information and belief, constitute a trespass
by Defendant Lucas County, Ohio, as the principal of the John Doe contractors.
42. Upon information and belief, in an attempt to disguise its true motive in approving the
Briartield Boulevard extension, Defendant Lucas County intentionally omitted any reference to the
planned new world headquarters of the Andersons in the Notice of Public Hearing published prior to
the March 3,2015, Hearing. A copy of the Notice of Public Hearing is attached hereto as Exhibit 6
and incorporated herein by reference.
43. Instead of acknowledging the true reason for the Brairfield Boulevard extension, the Notice
of Public Hearing refers to an expansion by Dana Corporation, more than one mile south, and a new
Crown Lift facility, also more than a mile south of the intersection, as the basis for the proposal.
44. Indeed, and upon information and belief, the Public Hearing Notice does not mention the
Brandywine golf course acquisition by Defendant Andersons so as to suggest that this development
by the county would go on whether or not Defendant Andersons had decided to develop that land or
not.

LAW OFFICES -12-

BARKAN & RaDON LTD.

1701 WOCOLANDS DPIVC
SUITE ICC

MAuMEE, OHIO 43537 4056
14191507 6500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 13 of 20. PageID #: 13

45. However, such contention cannot pass even the barest scrutiny given the contemporaneous
temporal relationship between the announcement of the putative location of Defendant Andersons’
new world headquarters and the decision to appropriate Plaintiffs real property for the Briarfield
Boulevard extension.
46. Following the March 3, 2015, hearing, Defendant County Commissioners, acting in their
official capacity as agents of Defendant Lucas County, Ohio, issued a four-page Resolution, a copy
of which is attached hereto as Exhibit 7 and incorporated herein by reference. As with the Notice of
Public Hearing, the Resolution intentionally makes no reference to the development of Defendant
Andersons’ world headquarters at the exact location to be served by the Briarfield Boulevard
extension. Given that the majority of public comment during the hearing explicitly addressed the
fact that Defendant Andersons was developing the property that the Briarfield Boulevard extension
would be serving, the fact that the Resolution malces no reference to Defendant Andersons appears to
be an intentional omission on the part of the Defendant Lucas County, Ohio and the other
Defendants to engage in subterfuge and limit any public record of the true goal of the appropriation,
i.e. to take Plaintiffs property for the exclusive benefit of Defendant Andersons and not the
public at large.
47. On March 24, 2015, the Lucas County Engineer sent a letter to Plaintiff indicating that
Defendant Lucas County, Ohio would be appropriating Plaintiffs property. A copy of the letter is
attached hereto as Exhibit 8 and incorporated herein by reference. The letter includes a purchase
contract and offer to acquire the subject property for $651,983.00, an amount equal to the listed tax
vaLue of the property.

LAW 0FFICS —13-

BARKAN & PaGaN Li-c.

1701 WOODLANDS 0IVt
SUITE 00

MAUMCE. OHIO 435374056
4191697 0500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 14 of 20. PageID #: 14

48. However, because of the prior eminent domain proceeding and the three-year period of
construction around Plaintiffs property, Plaintiff was required to reduce rents to forestall increased
and continued vacancies in its rental units. Plaintiff thereafter requested the Lucas County Board of
Revision to reduce the tax value because of the lower occupancy rate and the lower rentals. Since
that time the facility has been basically 100% filled and occupied and the rentals have been adjusted
substantially upward, meaning that the property is now worth approximately 52,300,000.00.

49. Plaintiff frrther states that under Ohio Rev. C. § 163.021(A) the Defendant Lucas County,

Ohio is absolutely prohibited from taking private land or property for the benefit of private
development, which is what is happening in this case.
50. Defendant Lucas County, Ohio’s flagrant misuse of its appropriation authority and disregard
of Ohio statutes have caused, and will continue to cause, great financial damage and iffeparable harm
to the Plaintiff and to the 21 families that reside in the complex.
51. Defendant Lucas County’s actions were and are undertaken under color of law and Defendant
Lucas County, Ohio has used its power to violate Plaintiffs constitutional rights. Defendant Lucas
County, Ohio is therefore liable to Plaintiff pursuant to 28 U.S.C.A. §1983.

SECOND CAUSE OF ACTION
(Civil Conspiracy-All Defendants)
52. Plaintiff hereby incorporates by reference each preceding and succeeding paragraph as though
set forth thily at length herein.
53. Plaintiff further states that Defendant Lucas County, Ohio and the other Defendants, through
‘their affirmative acts, have conspired to take Plaintiffs real property under color of law and under
the guise of such appropriation being undertaken for the public benefit.

LAW CFFICCS —14-

BARKAN & Poems Lro.

701 WOODLANDS D6iYC
SUJTC 00

MAUMEE. OHIO 43537.4066
4191 6976500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 15 of 20. PageID #: 15

54. Upon information and belief, all Defendants acted in concert to advance the Briarfield
Boulevard extension, either as a precondition to Defendant Andersons’ selection of the Brandywine
Countzy Club property for its new headquarters, or after the site had been selected.
55. Defendants, inclusive of Defendant Andersons and its agents, actions undertaken in the
conspiracy alleged herein showcase a shocking disregard for the rights of Plaintiff and a recognition
by Defendant Lucas County, Ohio, that it certain individuals and companies over others.
56. In particular, Defendant Andersons conspired with Defendant Lucas County, Ohio through its
participation in hearings, and its attendance at, participation in, and organization of meetings
between i-s legal counsel and the County Engineer, the County Commissioners and others.
57. Defendant Andersons will also receive the benefit ofthe unlawful appropriation of Plaintiffs
property at the expense of Plaintiff.
58. As a direct and proximate result of Defendants’ action and conspiracy, Plaintiff has suffered.
and will continue to suffer, substantial economic damages and irreparable harm.
59. Defendants conduct was extreme and outrageous thereby warranting an assessment of
punitive damages as well as an award of Plaintiffs legal fees and expenses.

THIRD CAUSE OF ACTION
(Tortious Interference with Contract-All Defendants)
60. Plaintiff hereby incorporates by reference each preceding and succeeding paragraph as though
set forth fully at length herein.
61. Plaintiff further says that it has twenty-one residents occupying the various condominium
units in the building on Briarfield Boulevard that is subject to Defendant Lucas County, Ohio’s
unlawful appropriation action.

LAW CFflCCS -15-

BARKAN & ROBQN LTD.

I?C WDCDLAl5RVC
SUITC ICC

M.uHtt. CHIC 4353740S6

4:01007 6000

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 16 of 20. PageID #: 16

62. Defendants’ conduct in seeking the unlawful appropriation of Plaintiffs property
constitutes tortious interference with the contractual rights and lease obligations between the
Plaintiff and its tenants.
63. As a direct and proximate result of Defendants’ tortious interference with Plaintiffs
existing and potential lease contracts Plaintiff has, and will, suffer substantial damages.

FOURTH CAUSE OF ACTION

(Violation of Ohio Public Records Act, Ohio Rev. C. § 149.43-

Defendant Lucas County, Ohio)
64. Plaintiff hereby incorporates by reference each preceding and succeeding paragraph as though
set forth fully at length herein.
65. Plaintiff further says that on March 31, 2015 its counsel sent a records request to the Lucas
County Administrator to provide all correspondence and communications between the Lucas County
Government and any third party’ regarding the proposed project, including The Andersons. Inc. See

Exhibit 9.
66. On April 3,2015 the County’s Chief Civil Counsel responded indicating said records would
be provided within a reasonable time. See Exhibit 10.
67. To date, no records have been provided and, upon information and belief, Defendant Lucas’
County, Ohio’s failure to produce requested records indicate an effort to conceal the civil conspiracy,
the deception, the abuse of power and wrongful activities of all of the Defendants.

FIFTH CAUSE OF ACTION
(Declaratory Judgment-Defendant Lucas County, Ohio)
68. Plaintiff hereby incorporates by reference each preceding and succeeding paragraph as though
set forth fully at length herein.

AW O’FICtS -16-

BARKAN & RosoN LTD.

I WOCb..ANDS ; ‘IL
SUITE ‘CC

MAUMEE, OHIO 435374056

4191 697 ESOC

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 17 of 20. PageID #: 17

69. Plaintiff requests that this Court issue a declaratory judgment holding that:
a. the appropriation action undertaken against Plaintiff by Defendant Lucas County,
Ohio is unlawful and contrary to the limitations on such authority articulated by the
Ohio Revised Code;
b. the appropriation action be abandoned; and
c. the proposed appropriation is not for the public good or for a public purpose.
SIXTH CAUSE OF ACTION
(Injunctive Relief-Defendant Lucas County)

70. Plaintiff hereby incorporates by reference each preceding and succeeding paragraph as though
set forth fuLly at length herein.
71. Defendant Lucas County, Ohio has acted and is continuing to act in excess of its
constitutional and statutory authority in this matter. As the attempted appropriation of Plaintiffs real
property being undertaken by Defendant Lucas County, Ohio is not for any public use, Defendant
Lucas County, Ohio’s actions constitute a gross abuse of its governmental authority.
72. Misuse of Lucas County, Ohio’s authority to appropriate Plaintiffs real property for the sole
and exclusive benefit of Defendant Andersons, a private entity, will cause Plaintiff to suffer
irreparable injury’, as Plaintiff is unable to pursue its claims arising from the conspiracy between the
Defendants, as alleged herein, in any slate court appropriation proceeding.
73. In addition, if not enjoined by order of this Court. Defendant Lucas County, Ohio will
continue to misuse and abuse its appropriation authority to illegally take Plaintiffs real property, the
right there to being inviolate under the laws of the United States and the State of Ohio.

LAW OFFICCS -17-

BARKAN & R000N LTD.

1701 WOODLANDS DRIVE
SUITE ICC

MAUHEE. OHIO 43537-4056
4101007 0500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 18 of 20. PageID #: 18

74. Plaintiff does not have a plain, speedy, and adequate remedy in the ordinary course of law
since Lucas County has deposited the alleged purchase price and can take possession and unilaterally
evict the 21 families housed in Plaintiffs complex!
75. Accordingly, Plaintiff is entitled to an Order permanently enjoining Defendant Lucas County,
Ohio from engaging in any appropriation of Plaintiffs real property that is not necessary for a public
use.

SEVENTH CAUSE OF ACTION
(Unjust Enrichment-Defendant Andersons)
76. Plaintiff hereby incorporates by reference each preceding and succeeding paragraph as though
set forth fully at length herein.
77. In addition, Plaintiff states that Defendant Andersons will be truly unjustly enriched at the
expense of the Plaintiff by the actions taken by the Defendant Lucas County, Ohio, its agents and
other John Does.
78. In particular, through the unlawful appropriation of Plaintiffs property, Defendant Andersons
will enjoy a substantial increase in the economic and aesthetic value of the property upon which its
new world headquarters will be situated.

EIGHTH CAUSE OF ACTION
(Punitive Damages-All Defendants)
79. Plaintiff hereby incorporates by reference each preceding and succeeding paragraph as though
set forth fully at length herein.
80. Defendants’ acts were willful and malicious in that Defendants’ conduct was carded out with
a conscious disregard for rights of Plaintiff

LAW OFrIcES -18-

BARKAN & POBON LTD.

17D1 WOODLANDS DRIVE
SUItE IDD

MAUMEE, OHIO 435374056
14191597 6500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 19 of 20. PageID #: 19

81. Defendants’ conduct thereby warrants an assessment of exemplary and punitive damages

against each Defendant in an amount appropriate to punish the Defendants and set an example of

them.

WHEREFORE, Plaintiff prays:

a. for an injunction to prevent the county from proceeding with any eminent domain
action until the termination of this litigation;

b. for monetary damages against Defendants, jointly and severally, in the amount of at
least $2,300,000.00;

c. for punitive andlor exemplary damages against Lucas County, Ohio, The Mdersons,
Inc., the individual John Does, and Defendant County Commissioners;

d. for an Order requiring Defendant Lucas County, Ohio to produce the public records
requested and to assess danrnges and attorney fees for same against the County;

e. for attorney fees and such other legal and equitable relief which as may be just and
proper.

Respectfully submitted,
BARIC&N & ROBON LTD.

By—,i I

\

Marvin A. Robon

By:_____________________

ZachØ%IJ. Muny

JURY DEMAND

Plaintiffs hereby demand a trial by jury on all issues so triable.

Respectfully submitted,
BARKAN & ROBON LTD.

7 n.j

Bc .

Marvin A. Robon

By:_3....’

Zachary J.$niy

LAW OFF1DES -19-

BARKAN & R060N LTD.

1701 WOODLANDS DRIVE
SUITE 100

MAUMEE. OHIO 435374056
141918976500

Case: 3:15-cv-00884-JJH Doc #: 1 Filed: 05/04/15 20 of 20. PageID #: 20

VERIFICATION

STATE OF MICHIGAN )SS:
COUNTYOF

John 1-lowey, being first duly sworn according to law, deposes and stales chat he is the Managing
Member of the entity which controls the Plaintiff in this case and that he has read the Complaint
and the facts therein are true to his best knowledge and belief.

Dated this Yeday of May, 2015 --- z

ir

Sworn to beFore me this] . àay of May, 2015.

k4RYAI4N S,’- -,
CCicPflccw4y
-

& RCDQN UP -20-

CC

.CC D.u

‘‘ Sr

Case: 3:15-cv-00884-JJH Doc #: 1-2

T
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Filed: 05/04/15 1 of 2. PageID #: 23

La nrw a Case: 3:15-cv-00884-JJH Doc #: 1-2

LAND TO BE RE-ZONED
WftHIN YELLOW DASHED LINE)J

‘—- NON-DEVELOPMENT BUFF
(AMEA WIThIN RED DASHED LW

WE WLDROWER FIELD, .;

WLDR.OWER FIELD, T F..

. nTJ I -F

LOW-MAINTENANCE TURF ALONG PROPERTY I/

—LINE. FOR TIDY EDGE CONDITION (TIP.) II
-y ‘n)P
I
- r2 I/IEVERGREEN AND DECIDUOUS TREE MiD SHRUBS
Li
WITHIN NON-DEVELOPMENT BUFFER. IN LOCATIONS
MiD QUANTITIES SUFFICIENT To SCREEN ViEWS TO
AND FROM AWACEESr LOTS En?.).

NEW
CORPORAT
HEADQUART

I

NEW WALKING Aiii I

CONNECTED TO EXISTING PATH -

ICANOPY TREES ALONGSIDE I -s
IENTRANCE DRIVE ‘St -

EXISTiNG FA!RWAYiENAIN \C
(IF DESIRED)
\N 0
IC TREES TO REMAiN (TIP.I

I;

NEW WALJCING PATHS,
CONNECTED T9 EXISTING PATh

MOPflJNEHI BORAJICE FEATURE WITH SIGN.
OESIGN AND EXACT LOCATION TOE DETERMINED,

BUt WILL COMPLY WITH LOC% ZONING CODE.

NEW PUBUC DRIVE, AUGNED
WIfll BRIARFIEfl BLVt.

-

— a a .a

ZZ&Th .

Filed: 05/04/15 2 of 2. PageID #: 24

r—

I LOW-MMPmMAMCE TURF GENERAL htTE: THE COLLABORATIVE
OPEN SPACE Ifl?3
POLE U3N7S MiD LIGHT BOLLAPOS ‘flL sthIainItXLtEfliI
I SERVICE AREA FOR DEliVERIES. WASTE BE I4ETAIIED AS NECESSARY TO IRS — — It &
RECEPTACLE, STORAGE, BC- SCRENED PROVIDE ADEQUATE ILUM;NATION
ALONG VEHIQ.LAfi DRIVES, PEDESTRIAN 1:B2Z7C t.cIRSctT
I ON Mt SIDES BY SUE WALLS AND GATE, WALKWAYS. MiD THROUGHOUT
MIN. B’ Hf PANWNG LOTS. FOCPJRES AND n
PUGEMEPITARETO BE DETERMINED,
TE • BUT WILL COMPLY WITH LOCAL ZONINO DGL
TERS CODE.
DELCONSULTINO ENGINEERS, LiE
BIOSWAUS IN EACH PARKING LOT 0455 BRIARBIEW BLVD. SUITE
MEDIAN (nP). PLANTED WITH MAUMEE,0K43537
MINGARDEN COMPATIBLE VEGETATiON PHONE: 4ERSIS.SEIS
www.4lltd.com
VISUAL BUFFER OF EVERGREEN AND
DECIDUOUS TREES AND SHRUBS (rEP.) 0 100 200
SCALE: 3.’ = 100’
In
PROJECT TITLE
CANOPY TREES THROUGHOUT
PARKING LOT MEDIANS The Andersons, InC.

New Corporate
Headquarters

DIRECTiONAL SIGN. DESIGN AND EXACT
LOCATION TO BE DETERML\W, BUT WiLL
COMPLY WITH LOCAL ZONHIC COO!.

•1 C’tCRED
4P’ROVEO
flA
TCIJOSNO. 100272
, kthED EMERGENCY FRS TRUCK ACCESS ‘I
, !4 LANE, CONNECTiNG TO BWflThAY LANE
SHEET flfl.E
I VISUAL BUFFER OF EVERGREEN AND
DECIDUOUS TREES AND SHRUBS (TIP.) • I It’it•I
. Z:= 44
-_r- 4VEWLOFWwER1KK0bW;na I mP.) SHEET NO.
I.

Case: 3:15-cv-00884-JJH Doc #: 1-3

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Filed: 05/04/15 1 of 2. PageID #: 25

sfA. 79t60. I ________

Proposed Pedestrian Signal Polo No. Case: 3:15-cv-00884-JJH SDr?o. c80#.6:01.3-,35
Provide Pedestrian Signal with
Pedesir/qg Push Button and Proposed Combin
Sign (AlO-JUR) Design Na. Ii W
Luminaire Brack
ale Arm. Attach Met
with Pedestrian Signal and Push Button and Video Combination Sig
Antenna to Sign
0 Detector Mounted an Luminaire Bracket Arm Stub it, Faundat
To Be Removed
a Sr?. SO•30, 65,0’ Lt
Proposed Location far
Edison Power Pole end
Traffic Signal Power
2’ Conduit Riser and
(Height to be Determin
Edison Company)

C

I——. ‘-2’ C
N
w—
/—


0

5—

Note, The ox/st lag meter Is the property ,r the Ta/edo Sr ‘S 53 3’ p.
Edison Campany. The Cantractor shalt remove the —x s ,ng odes/c unlea Trotroc bigi
meter for pick up by the Toledo Edison Company. and Pedestrian Signal with Pushbutton
To Be Removed
REPRESENTS NB SAL 1SBURr LEFT TURN
VIDEO DETECTION ZONE TO BE PROGRAMMED Es. 3’ Conduit to be Removed

a REPRESENTS NB BRIARFIELD RIGHT TURN STA. 79.59, 75.0’ RI. —
VIDEO DETECTION ZONE TO BE PROGRAMMED
REPRESENTS NB BR1ARFIELD LEFT TURN Proposed Pedestrian Signal Pole Ho. 4.
VIDEO DETECTION ZONE TO BE PROGRAMMED Provide Pedestrian Signals with Pedestrian
Pushbulpans and Signs (RIO-JUL & RlC-3bRj
Provide Suppiemontaj S Section VehIcular
Signal Head

Ui1JJiiijji-frju#1IE-Hr-rtnNT1—1J.nJJ, REPRESENTS SB BRANDYWAY LANE Signal and Pushbutton To Be
VIDEO DETECTION ZONE TO BE PROGRAMMED 2 Conduit, 725.05—

0 0 0 ST?
© Proposed 24’ Pull
- 0 ©e

©@

SIGNALS A,D,E, SIGNALS B & C SIGNAL F SiGNAL 1 PEDESTRiAN SIGNALS
GH&i

EXISTING SIGNAL HEAD ARRANGEMENT

O Sack Plate tTyp.I

SIGNALS 2, 6. 7. SIGNALS SiGNAL 3 SIGNAL /2 SIGNALS /3 SIGNALS P1, P2, RIG-3bR-9 a——
B, 9, /0, II, I, 4 & 5 /4 P3, P4, P5 & PG RIO-JUL -9
15, & 16
Pedestrian and Vehicular Signal Heads shall be Black Pa iycarbonat, with LED
3 Lamps and Rigid Mounted As Per TC-85,20.
A/i Mast Arm flaunted Traffic Signals shall have Black Louvered Back Plates.

PROPOSED SIGNAL 88.40 ARRANGEYEYr

56F.6i’leLdI.: 05/04/15 2—- of 2. PageID #: 26LEiygh.tli?Pofmle bwlintho;Vii,dneo Strain Pa I e an d]
Detector flaunted
nation Signal Support No. 2 000T TC-12.30,

Wadit ied 63’ and 61’ Arms. Provide One 20’ an Luminoire Bracket Arm Ta Be Removed
ket Arm and Mount Two Can-eros an Luminotre
ter and Disconnect Switch to Proposed £E&Aa3J 45.5’ Li’.
gnal Support No. 2. Attach Directional —

STA. 8I’05. 61.5’ LI. Exist ing Power Pole
and Existing Power Source
nal Support No. 2. Provide 2’ Conduit Ta Be Removed by others
ion for Future Lighting Wiring.
LI. 02’25.0. 72.0’ it.
,sed Pedestrian Signal Paie No. £
\an U,
Toledo r2fo”r Candult, 725.04 PPreodveiisddteeriaPSnuepdPpeulsestmrhibaeunntttaoSlnig3nanaSdlecwSt iiigothnn (RlO-3bR)
Power Service -2’ Conduit, Vehicular
Praposed 725.05
Source. Provide Signet Head

Ground Rod.
ned by Toledo

5’ RadIus
Conduit Bend—..

.3’ Conduit. 725.04

Conduit. 725.05 -3’ Condu 0 0

/ ‘—10’ Radius
Conduit Bend

-J

Conduit. 725. Ioi
for Signal Serv ce

CONSTRuCTIO
SAL flaunt no
O0s—2’ Conduit, 725.04 for
Service in Same Trench
CSignal Conduit Power
as 3. as
OCsr3’Candult, 725.05
‘Z2,Det.
Os

70.5’ At.,
—I I’ Proposed Signal Support Na. 6 COOT TC-Bl.20,
Design No. 2. 30’ Arm.
-LI?——
STA. 80.20.29, CONSTRUCTION SALISBURY ROAD
STA. 20’OO,00, CONSTRUCTION BRIARFIELD BLVD. ‘1
ST4. 5l’O5, 72.5’ At. Proposed 24’ Pull Box

‘-S’Conduit, 725.05

‘aposWedas7.52T/AYl.0’Cofint.troller with T52/Type I
Ground Mounted Cabinet and UPS Cabinet,
Cabinet Riser, Foundation and Concrete Work Pad

—3’ Conduit, 725.05

f4 BO’YE, BI.0’ At. Support No. 3 COOT TC-12.ja, Design Na.?

Proposed Combination Signal Bracket Arm andkount One Camera
one 20’ Luminoire with Pedestrian Push OUtton and
ModifIed, 65’ Arm. Provide Pedestrian Signal
an Luminoire Arm, Provide
Sign (RlO-SbLJ. Provide e’ Conduit Stub in Foundation for Future Lighting
Wiring. Provide Supplemental Section Vehicular Signal Head.

II

8U’96, 86,0’ RI. Proposed 24’ Pull Box

3’ ConduIt, 725.05

‘I lsEailBiToin.g7esi 72.0’ RI. with Pedestrian SIgnal and
rain Pole
Push Button and Meter To Be Removed
9
.IZL_.ZL,JLRI. Ex. 24’ Pull Box To Be Removed ¶1

8O’75, 82.1’ RI. Li)
S. Ground Mounted Traffic Controller, UPS Cabinel &
Equipment, and Foundation To Be Removed I.

LEGEND FOR SIGNALS AND SUPPORT 7

MAST ARM SIGNAL SUPPORT .—-NEW EXISTING CONDUIT 1. C
SPAN WIRE SUPPORT I PULL BOX D
SIGN ON SPAN WIRE SUPPORT E—c:z1 •
SIGNAL HEAD, STANDARD ONE WAY -J
SIGNAL HEAD STANDARD 2 WAr
SiGNAL HEAD WITH ARROW —41 CONTROLLER SEX.
LOOP DETECTOR
tEZL_
VIDEO CAMERA DETECTOR
—jID’

Far Signing and Pavement Markings See Sheet 395,

Case: 3:15-cv-00884-JJH Doc #: 1-4 Filed: 05/04/15 1 of 4. PageID #: 27

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Case: 3:15-cv-00884-JJH Doc #: 1-4 Filed: 05/04/15 2 of 4. PageID #: 28

TRAFFIC STUDY

BRANDYwAY LANE AND SALIsBURY ROAD

AUGUST 2014

PREPARED FOR:
OFFICE OF THE LUCAS CouNn ENGINEER

ONE GOVERNMENT CENTER, SUITE 870

TOLEDO, OHIO

tNA:3annmnithk

Case: 3:15-cv-00884-JJH Doc #: 1-4 Filed: 05/04/15 3 of 4. PageID #: 29

EXECUTIVE SUMMARY

The Mannik & Smith Group has completed a traffic study to evaluate the largest potential development that could
occur on an overbuy” land parcel near the intersection of Sausbury Road and Briarfield Boulevard/Brandyway Lane
in Monclova Township, Ohio. The study also evaluated several geometric and operational improvements at nearby
intersections for their abiHty to accommodate future traffic volumes. This traffic study features an operational analysis
of seven (7) design alternatives under five (5) development scenarios with AM and PM peak hour background traffic
conditions. Further analysis of the best three alternatives included screening for safety considerations, site
accessibility, right-of-way impacts, and preliminary engineering costs. The seven (7) design alternatives include:

A. Signal timing revisions
B. Addition of one (1) lane along southbound Brandyway Lane
C. Addition of an easthound left turn lane from Salisbury Road to Brandyway Lane
D. Addition of u-turns along Salisbury Road and Briarfield Boulevard to accommodate restricted

turning movements
E. Providing a direct connection between Brandyway Lana and Manley Road
F. Alignment of Brandyway Lane with Briarfield Boulevard along Salisbury Road
G. Addition of an eastbound left turn lane from Salisbury Road to Brandyway Lane, addition of

southbound right and left turn lanes, and signal timing revisions

The five (5) site development scenarios involved various development densities for the “overbuy’ parcel including:

• No Build — no “overbuy” parcel development
• Build 1 — ‘overbuy’ parcel development includes a two story, 150,000 square foot office building
• Build 2 — “overbuy” parcel development includes a 150 room hotel (—40,000 square foot roof), a 1500

square loot coffee shop, a 7,000 square foot restaurant, and a 40,000 square loot office building
• Build 3— “overbuy” parcel development includes 150 room hotel and 60,000 square feet of specialty retail

(i.e., may include services or small offices)
• Build 4 — “overbuy” parcel development includes a 4,000 square foot bank and 75,000 square feet of

specialty retail.

The study has yielded the following results:

• Most alternatives could accommodate trip generation of 211 AM peak hour and 202 PM peak hour vehicles
at the Salisbury Road/Briarfield BoulevardfBrandyway Lane intersection from a new developmenl

• Alternative E achieved the best traffic operations for the Build 3 and Build 4 development scenarios,
operating at LOS C for increases in traffic of 505 and 427 during the AM and PM peak hours respectively.

• Although not evaluated for the Build 2 (hotel, restaurants, and office) development scenario, Alternative F
indicates the potential for accommodating “overbuy” parcel traffic volumes of 505 and 427 at an LOS of D or
better during the AM and PM peak hours.

Results of the study (summarized in the table below) have yielded the following recommendations:

• The unconventional configuration of the Salisbury Road and Briarfield Boulevard/Brandyway Lane
intersection makes phasing for northbound and southbound left turns critical to operations. Given its costs
and potential for accommodating larger traffic volumes, design Alternative F should be considered at this
intersection if development occurs on the “overbuy” parcel. Any development under this alternative should
generate 450— 500 trips per hour during the AM and PM peak periods.

PIE MANWIK SMITH GROUP, INC. ES-I
2randcay Lane Traffic Study 20140910dacx

Case: 3:15-cv-00884-JJH Doc #: 1-4 Filed: 05/04/15 4 of 4. PageID #: 30

SIGNAL JZED CON rRoL I‘
VEHICLE MO VEMEN T
“0 VERBU Y”
PA

I

I.

C

“SERPENTINE”
yEMEN TS

:4
:‘

— -

4

FIGURE

INTERSECTIO DETAIL

Case: 3:15-cv-00884-JJH Doc #: 1-5 Filed: 05/04/15 1 of 25. PageID #: 31

17
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Case: 3:15-cv-00884-JJH Doc #: 1-5 Filed: 05/04/15 2 of 25. PageID #: 32

David/vt Gold FinalAnalysis

Legislative Service Commission

Am. Sub. S.B. 7

127th General Assembly
(As Passed by the General Assembly)

Sens. Grendell, Harris, Faber, Schaffer, Amstutz, Coughlin, Gardner,
Padgett, Schuring, Clancy, Mumper, Carey, Niehaus, Austria, Buehrer,
Goodman, Jacobson, Schuler, Spada, Stivers, R. Miller, Wilson, Cates

Reps. Blessing, Wagoner, Coley, Bacon, Seitz, Batchelder, Adams, Aslanides,
Bubp, Carmichael, Collier, Combs, Core, Daniels, Dolan, Domenick,
Evans, Flowers, Gibbs, Goodwin, J. flagan, Hite, Hotfinger, Hughes,
Jones, Oelslager, Peterson, Reinhard, Schindel, Sctzer, Stebelton,
Uecker, Wachtmann, Wagner, White, Zehringer

Effective date: *

ACT SUMMARY

Defmes “blighted area,” “slum,” and “blighted parcel” and, except with
regard to urban renewal projects, applies the new defmitions uniformly
throughout the Revised Code to replace definitions of “blighted area,”
“slum,” “slum area” and related terms.
• Prohibits any person from considering whether property could be put to a
comparatively better use or could generate more tax revenue when
determining whether the property is a blighted area or a blighted parcel.
• Exempts agricultural land from being classified as blighted if its
condition is consistent with conditions normally incident to generally
accepted agricultural practices and the land is used for agricultural
purposes or if the land is devoted exclusively to agricultural use.
• Requires that before a public agency appropriates property for a private
use based on a finding that the area is a blighted area or a slum, the
agency adopt a comprehensive development plan describing and
* The Legislative Service Commission had not received formal notification of the
effective date at the time this analysis was prepared. Additionally, the analysis may not
reflect action taken by the Governor.

Case: 3:15-cv-00884-JJH Doc #: 1-5 Filed: 05/04/15 3 of 25. PageID #: 33

documenting the public need for the property and, if the agency is
governed by a legislative body, obtain a resolution from that body
affirming the public need for the property.
• Prohibits an agency from appropriating property based on a fmding that
the parcel is a blighted parcel or that the area is a blighted area or slum by
making that fmding in, or in conjunction with, an emergency ordinance
or resolution.
• Prohibits appropriations of real property except as necessary and for a
public use, lists uses that are presumed to be public, and specifies certain
uses that are not public.
• Authorizes the elected officials or elected individual who appointed an
unelected public agency that seeks to appropriate property to veto the
appropriation.
• Requires an agency to provide the owner with a notice of intent to
appropriate property and a good faith offer to purchase the property at
least 30 days before filing an appropriation petition and sets forth a
statutory form of the notice that includes a summary of the owner’s legal
rights.
• Requires that an agency obtain an appraisal or summary appraisal of
property to be appropriated and provide a copy of the appraisal or
summary appraisal to the owner at or before making its first offer for the
property.
• Requires an agency that is appropriating property for a project, other than
a project initiated under RC. Title 55 (Roads, Highways, and Bridges),
that will disrupt traffic flow or impede access to property to make
reasonable efforts to plan the project in a way that limits those effects.
• Requires a park authority to obtain the approval of the county legislative
authority in order to appropriate land in the county if the park authority is
not located in that county.
• Requires an agency to prove by a preponderance of the evidence that it
has the right to make the appropriation, the parties were unable to agree,
and the appropriation was necessary or for a public use.

Legislative Service Commission -2- Am. Sub. SB. 7

Case: 3:15-cv-00884-JJH Doc #: 1-5 Filed: 05/04/15 4 of 25. PageID #: 34

• Authorizes either party to an appropriation proceeding to request
mediation as to the value of the property.

• Modifies the evidentiary treatment of a resolution or ordinance declaring
an appropriation to be necessary by providing that it creates a rebuttable
presumption of necessity for non-blight takings rather than being prima
facie evidence of necessity for all takings in the absence of proof that the
agency abused its discretion, provides that a public utility’s or common
carrier’s presentation of evidence of necessity creates a rebuttable
presumption of necessity, and creates an inebuftable presumption of
necessity based on the approval by a state or federal regulatory authority
of a taking by a public utility or common carrier.

• Provides that when a trial is had as to the value of appropriated property,
neither party has the burden of proof

• Requires the jury to award up to $10,000 in compensation for any lost
goodwill if the entire business property is appropriated and the owner
cannot reasonably prevent the loss of goodwill by relocation or other
measures.

• Authorizes an agency, upon approval, to pay the actual reasonable
expenses involved in moving or relocating an owner, commercial tenant,
or a residential tenant of whom the owner has informed the court, and
that person’s business or farm operation, including up to $10,000 to
reestablish a farm, nonprofit corporation, or small business at a new site
and up to $2,500 to search for a replacement business or farm, and
authorizes a trial on those payments if the agency does not approve.

• Permits a business owner to recover thmages for actual economic loss
resulting from an appropriation that forces the owner to relocate the
business.

• Requires the court to award the owner reasonable attorney’s fees,
expenses, and costs if the court decides for the owner on the matter of
necessity or public use in a fmal, unappealable order.

• Requires that when a trial is had as to the value of appropriated property,
an agency must pay costs and expenses, including attorney’s and
appraisal fees, in most non-quick-take cases if the owner provided the
agency with an appraisal, summary appraisal, or sworn statement of

Legislative Service Commission -3- Am. Sub. SB, 7

Case: 3:15-cv-00884-JJH Doc #: 1-5 Filed: 05/04/15 5 of 25. PageID #: 35

value at least 50 days before thai, the fmal award of compensation is
greater than 125% of the agency’s good faith or revised offer for the
property or 150% in certain cases involving agricultural land, places a
cap on awards of attorney’s fees and other costs and expenses, generally,
with exceptions for most road and rail projects and public health
exigencies and certain cases in which the parties exchange appraisals.

Authorizes a court to stay appropriation proceedings during an appeal if
the owner posts a supersedeas bond and authorizes the owner to take an
immediate appeal from an adverse order regarding the right to
appropriate or the necessity of an appropriation, with exceptions for
quick-takes and exigencies.

• Encourages the Supreme Court to adopt mies requiring expedited appeals
in appropriation actions.

• Grants the owner of property appropriated by an agency the right to
repurchase the property if the agency decides not to use the property for
the purpose stated in the appropriation petition unless the right is
extinguished for specified reasons.

TABLE OF CONTENTS 5
5
Introduction
Eminent domain 6

Task force 6
6
Moratorium 7
City of Norwood v. Homey 7
Blight 10
Definitions 11
Limitations 11
General 11
Definitions 11
Agency 12
Public use
Public utility 12

Electric cooperative 12
Municipal power agency 13
Goodwill 13
Good faith offer
Port authority transportation facility 13
Condemnation 13

Legislative Service Commission 4- Am. Sub. SB. 7

Case: 3:15-cv-00884-JJH Doc #: 1-5 Filed: 05/04/15 6 of 25. PageID #: 36

Purpose of appropriations of property .13
Applicable procedure 13
Prerequisites to appropriation 14
14
County approval for takings by park authority 14
Veto authority 15
Notice of intent 15
Good faith offer 15
Appraisals 16
Failure to agree 16
Traffic flow and access to property 16
Procedure in appropriation proceedings 16
Petition 17
Mediation 17
Burden of proof 18
Appeals 19
Instrument of acquisition 19
Awards of compensation, costs, and fees 19
Compensation 20
Costs and fees 20
Attorney’s fees 21
Relocation assistance 23
Right to repurchase 23
Declarations of intent 23
What is a quick-take appropriation9

CONTENT AND OPERATION

Introduction

Eminent domain

Both the United States and Ohio constitutions limit the government’s power
of eminent domain to situations where the property is being taken for a public use
and the owner is compensated (United States Const., Amend. 5; Ohio Const., Art.
I, sec. 19). In Kelo v. City of New London (2005), 125 S.Ct. 2655, the United
States Supreme Court held that economic development was a legitimate public use
and authorized the taking of private property in an area that was cconomically
depressed, but not blighted, in order to give it to another private entity for
purposes of economic development. Kelo noted, howevcr, that individual states
were free to enact legislation to further restrict the exercise of eminent domain.

Legislative Service Commission -5- Am. Sub. SB. 7

Case: 3:15-cv-00884-JJH Doc #: 1-5 Filed: 05/04/15 7 of 25. PageID #: 37

Task force

In response to Kelo, the 126th General Assembly created the Legislative
Task Force to Study Eminent Domain and its Use and Application in the State
(hereinafter ‘task force”). The task force was instructed to study the use of
eminent domain and its impact on the state, how the decision in Kelo affects state
law governing the use of eminent domain, and the overall impact of laws
governing the use of eminent domain on economic development, residents, and
local governments. The task force included members of the House and Senate,
representatives from executive branch agencies, local government representatives,
and advocates for developers and property owners. (Sections 3 and 4 of Am. Sub.
S.B. 167 of the 126th General Assembly.) The task force issued its final report on
August 1, 2006.

Moratorium

In addition to creating the task force, Am. Sub. S.B. 167 placed a
moratorium on any public body using eminent domain to take private property that
is not in a blighted area, without the consent of the owner, when the primary
purpose for the taking is economic development that will result in ownership of
the property being vested in another private person. This moratorium did not
apply if the property was to be used for streets, roads, walkways, paths, or other
ways open to public use, public utilities, common carriers, public parks or
recreation areas, or government buildings or grounds. If an agency violated the
moratorium, it could lose state funding for the project. The moratorium expired
on December 31, 2006. (Section 2 of Am. Sub. S.B. 167.)

City of Norwood v. Homey

Shortly before the task force issued its final report, the Ohio Supreme Court
issued an opinion in City of Nonvood v. Homey (2006), 110 Ohio St.3d 353, that
interpreted the Ohio Constitution to provide greater protections for property rights
than under the Kelo decision. In Nonvood, the court held that an economic benefit
to the community is not enough on its own, absent any other public benefit, to
satisfy the public-use requirement. The court also struck down the City of
Norwood’s definition of blight as unconstitutionally vague because it included
‘deteriorating” areas, a classification that the court found improperly relies on
spcculation as to the future condition of the property. Although the task forcc was
unable fully to evaluate the implications of the Norwood decision, its final
recommendations incorporate thc major holdings of that decision.

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Blight

Definitions

Prior law. Prior law contained multiple definitions of blighted areas and
slums that were similar to, but not necessarily consistent with, each other.

The laws authorizing counties to conduct renewal projects (R.C. 303.26 to
303.59) contained nearly identical definitions of blight and slum. “Blighted area”
was defined as an area that substantially impaired or arrested sound growth,
retarded the provision of housing accommodations, or constituted an economic or
social liability and was a menace to the public health, safety, morals, or welfare in
its present condition and use because of the presence of a substantial number of
slum, deteriorated, or deteriorating structures, predominance of defective or
inadequate street layout, faulty lot layout in relation to size, adequacy,
accessibility, or usefulness, unsanitary or unsafe conditions, deterioration of site or
other improvements, diversity of ownership, tax or special assessment delinquency
exceeding the fair value of the land, defective or unusual conditions to title, or the
existence of conditions which endanger life or property by fire and other causes, or
any combination of such factors. “Blighted area” also included a disaster area in
need of redevelopment or rehabilitation as certified by the county commissioners
and the governor. “Slum area” was defined as an area that was conducive to ill
health, transmission of disease, infant mortality, juvenile delinquency, or crime,
and was detrimental to the public health, safety, morals, or welfare because it
contained a predominance of buildings or improvements, whether residential or
nonresidential, that suffered from dilapidation, deterioration, age or obsolescence,
inadequate provisions for ventilation, light, air, sanitation, or open spaces, high
density of population and overcrowding, or the existence of conditions which
endanger life or property, by fire and other causes, or any combination of such
factors. (R.C. 303.26(D) and (E); 303.36--not in the act.) A county that was
conducting a renewal project to address blight or slum conditions was specifically
authodzcd to cxcrcisc cminent domain (R.C. 303.37(C), 303.38--not in the act).

Thc laws authorizing the creation of community urban rcdcvclopment
corporations defined “blighted area” as an area containing a majority of structures
that have been extensivcly damagcd or dcstroyed by a major disaster, or that, by
reason of dilapidation, deterioration, age or obsolescence, inadequate provision for
ventilation, light, air, sanitation, or open spaces, unsafe and unsanitary conditions
or the existence of conditions which endanger lives or properties by fire or other
hazards and causes, or that, by reason of location in an area with inadequate street
layout, incompatible land uses or land use relationships, overcrowding of
buildings on the land, excessive dwelling unit density, or other identified hazards
to health and safety, are conducive to ill health, transmission of disease, juvenile
delinquency and crime and are detrimental to the public health, safety, morals, and

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general welfare (R.C. 1728.01(E)). A project undertaken by a community urban
redevelopment corporation could include the acquisition of blighted property “by
purchase or otherwise” (R.C. 1728.0 1(F)(2)).

The laws authorizing metropolitan housing authorities to operate housing
projects cWined “slum area” as any area where dwellings predominate which, by
reason of dilapidation, overcrowding, faulty arrangement or design, lack of
ventilation, light, or sanitary facilities, or any combination of these factors, are
detrimental to safety, health, or morals (R.C. 3735.40(B)). Metropolitan housing
authorities are authorized to use eminent domain to conduct housing projects in
slum areas (R.C. 3735.3 l(B)--not in the act).

Prior law authorized municipal corporations to appropriate and rehabilitate
buildings or structures that they found to be a threat to the public health, safety, or
welfare, that had been declared to be a public nuisance, and that either had been
found to be insecure, unsafe, structurally defective, unhealthflil, or unsanitary or
violated a building code or ordinance (R.C. 719.012). Continuing law also
authorizes “impacted cities” to use eminent domain for purposes of economic
development (R.C. 719.011—not in the act). “Impacted cities” are cities that have
been extensively damaged by a major disaster and declared to be a major disaster
area under federal law, or cities that have attempted to cope with the problems of
urbanization, and that provide for economic development by either authorizing the
construction of housing by a metropolitan housing authority or adopting a program
to combat blight and slums that has been certified as workable by the director of
development (R.C. 1728.0 1(C)).

Operation of the act. The act replaces all of these definitions with a single
set of definitions that are applicable throughout the Revised Code except for
Chapter 725. (municipal urban renewal).

The act defines “blighted area” or “slum,” as used in the Revised Code, as
an area in which at least 70% of the parcels are blighted parcels and those blighted
parcels substantially impair or arrest the sound growth of the state or a political
subdivision of the statc, retard the provision of housing accommodations,
constitute an economic or social liability, or are a menace to the public health,
safety, morals, or wclfare in their prcscnt condition and use (R.C. 1.08(A)).

Under the act, “blightcd parcel,” as used throughout the Revised Code
except Chapter 725. means either of the following (R.C. 1.08(B)):

(1) A parcel that has one or more of the following conditions:

(a) A structure that is dilapidated, unsanitary, unsafe, or vermin
infested, and because of its condition an agency that is responsible

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for the enforcement of housing, building, or fire codes has
designated it unfit for human habitation or use;

(b) The property poses a direct threat to public health or safety in its
present condition by reason of environmentally hazardous
conditions, solid waste pollution, or contamination;

(c) Tax or special assessment delinquencies exceeding the fair value
of the land that remain unpaid 35 days after notice to pay has been
mailed.
(2) A parcel that has two or more of the following conditions that
collectively considered adversely affect surrounding or community property
values or entail land use relationships that cannot reasonably be corrected through
existing zoning codes or other land use regulations:

(a) Dilapidation and deterioration;

(b) Age and obsolescence;

(c) Inadequate provision for ventilation, light, air, sanitation, or
open spaces;

(d) Unsafe and unsanitary conditions;

(e) Hazards that endanger lives or properties by fire or other causes;

(0 Noncompliance with building, housing, or other codes;

(g) Nonworking or disconnected utilities;

(h) Is vacant or contains an abandoned stmctwe;

(i) Excessive dwelling unit density;

ci) Is located in an area of defective or inadequate street layout;

(Ic) Overcrowding of buildings on the land;

(1) Faulty lot layout in relation to size, adequacy, accessibility, or
useffilness;

(m) Vermin infestation;

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(n) Extensive damage or destruction caused by a major disaster
when the damage has not been remediated within a reasonable
time;

(o) Identified hazards to health and safety that are conducive to ill
health, transmission of disease, juvenile delinquency, or crime;

(p) Ownership or multiple ownership of a single parcel when the
owner, or a majority of the owners of a parcel in the case of
multiple ownership, cannot be located.

Absent any environmental or public health hazard that cannot be corrected under
its current use or ownership, a property is not a blighted parcel because of any of
the conditions listed in the above definition if (1) the condition is consistent with
conditions that are normally incident to generally accepted agricultural practices
and the land is used for agricultural purposes (as defined in R.C. 303.01 or 519.01)
or (2) the county auditor has determined that the land is devoted exclusively to
agricultural use (as defined in R.C. 5713.30). A property that under this provision
is not blighted may not be included in a blighted area or slum. (R.C. 1.08(D).)

The act inserts by cross reference into the provision authorizing municipal
corporations to appropriate and rehabilitate nuisance structures an incorrect
reference to this definition. The act modifies this authority so that it can only be
exercised if the municipal corporation finds the buildings or structures to be
“blighted property as defined in section 1.08 of the Revised Code.” However, the
act only defines “blighted area” and “blighted parcel.” (R.C. 719.012.) The new
definition also modifies the law authorizing “impacted cities” to use eminent
domain to address blight and slums by changing the operative definition of
“blighted area” (R.C. 719.011--not in the act and 1728.01(E)).

When determining whether a property is a blighted parcel or whether an
area is a blighted area or slum for purposes of these definitions, the act prohibits
persons from considering whether there is a comparatively better use for the
property, gemises, structure, area, or portion of an area, or whether the property
could generate more tax revenue if put to another use (R.C. 1.08(q).

Limitations

The act provides that before an agency appropriates property based on a
finding that the property is a blighted area or slum, the agency must adopt a
comprehensive development plan describing the public need for the property. The
plan must include at least one study documenting the public need for the property.
All of the costs of developing the plan must be publicly financed. Additionally, if

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the agency is governed by a legislative body, it must obtain a resolution from that
body affirming the public need for the property. (R.C. 163.02 1(B).)

The act prohibits an agency from appropriating property based on a finding
that the parcel is a blighted parcel or that the area is a blighted area or slum by
making that finding in, or in conjunction with, an emergency ordinance or
resolution (R.C. 163.02 1(D)).

General

R.C. 163.01 through 163.22 contain the general provisions that govern
appropriations of real property, whether the property is taken because of blight or
otherwise. R.C. 163.51 through 163.62 include additional provisions that apply to
takings for state highway projects or projects that receive federal funding and that
displace persons from their homes or businesses. With a couple of exceptions
noted below, the act does not modify the latter group of Revised Code sections.

Definitions

In addition to defining “blighted area” (and slum) and “blighted parcel,” the
act adds or amends definitions related to eminent domain generally. Except as
otherwise noted, the following definitions apply to R.C. 163.01 through 163.22.

Agency

The Revised Code authorizes “agencies” to appropriate property under the
eminent domain power. There are two types of agencies, public and private.
Under prior law, “public agency” meant any governmental corporation, unit,
organization, or officer authorized by law to appropriate property in the courts of
Ohio. The act adds governmental insflmentality to this list. Prior law defined
“private agency” as any other corporation, firm, partnership, voluntary association,
joint-stock association, or company authorized by law to appropriate property in
the courts of Ohio. The act rewords the definition to read “any corporation, firm,
partnership, voluntary association, joint-stock association, or company that is not
a public agency and that is authorized by law to appropriate property in the courts
of Ohio.” (R.C. 163.01(A), (B), and(C).)

Public use

Prior statutory law did not define “public use” for eminent domain
purposes. The act establishes a presumption that utility facilities, roads, sewers,
water lines, public schools, public institutions of higher education, private
institutions of higher education that are authorized to appropriate property under
R.C. 3333.08, public parks, government buildings, port authority transportation
facilities, projects by an agency that is a public utility, and similar facilities and

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uses of land e public uses. The act specifies that ‘public use” does not include
any taking that is for conveyance to a private commercial enterprise, economic
development, or solely for the purpose of increasing public revenue, unless the
property is conveyed or leased to (1) a public utility, common carrier, or municipal
power agency, (2) a private entity that occupies a port authority transportation
facility or an incidental area within a publicly owned and occupied project, or (3) a
private entity when the agency that takes the property establishes by a
preponderance of the evidence that the property is a blighted parcel or is included
in a blighted area. (R.C. 163.01(H).)

Public utility

Under the act, “public utility” has the same meaning as in R.C. 4905.02 and
also includes a public utility owned or operated by one or more municipal
corporations, an electric cooperative, and an agency holding a certificate of public
convenience and necessity granted by the Federal Energy Regulatory Commission
(R.C. 163.01(G)). RC. 4905.02 defines “public utility” to include every
corporation, company, copartnership, person, or association, their lessees, trustees,
or receivers, defined in R.C. 4905.03, including all public utilities that operate
their utilities not for profit, eccept electric light companies that operate their
utilities not-for-profit; public utilities, other than telephone companies, that are
owned and operated exclusively by and solely for the utilities’ customers,
including any consumer or group of consumers purchasing, delivering, storing, or
transporting, or seeking to purchase, deliver, store, or transport, natural gas
exclusively by and solely for the consumer’s or consumers’ own intended use as
the end user or end users and not-for-profit; public utilities that are owned or
operated by any municipal corporation; and railroads as defined in R.C. 4907.02
and 4907,03. R.C. 4905.03 defines the following entities: telegraph, telephone,
motor transportation, electric light, gas, natural gas, pipe-line, water-works,
heating or cooling, messenger, street railway, suburban railroad, interurban
railroad, and sewage companies.

Electric cooperative

Under the act, “electric cooperative” has the same meaning as in R.C.
4928.01 (a not-for-profit electric light company that both is or has been financed
in whole or in part under the federal Rural Electrification Act of 1936 and owns or
operates facilities in Ohio to generate, transmit, or distribute electricity, or a not-
for-profit successor of such company) (R.C. 163 .01(1)).

Municipal power agency

Under the act, “municipal power agency” has the same meaning as in R.C.
3734.058 (any Ohio nonprofit corporation, the members of which arc municipal

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corporations that own and operate electric utility systems, that sells electricity to
its members for resale) (R.C. 163.01(L)).

Goodwill

The act defines “goodwill” as the calculable benefits that accrue to a
business as a result of its location, reputation for dependability, skill or quality,
and any other circumstances that result in gobable retention of old, or acquisition
of new, patronage.

Good faith offer

The act defines “good faith offer” as the written offer that an agency that is
appropriating property must make to the owner of the property pursuant to R.C.
163.04(B) before commencing an appropriation proceeding.

Port authority transportation faculty

The act defines “port authority transportation facility” as any facility
developed, controlled, or operated by a port authority for the purpose of providing
passenger, cargo, or freight transportation services, such as airports, maritime
ports, rail facilities, transit facilities, and support facilities directly related to any
airport, maritime port, rail facility, or transit facility.

Condemnation

The act stipulates that any reference in the Revised Code to an authority to
acquire real property by “condemnation” or to take real property pursuant to a
power of eminent domain is deemed to be an appropriation of real property
pursuant to R.C. Chapter 163. and that such taking or acquisition must be made
pursuant to Chapter 163. (R.C. 163.63).

Purpose of appropriations ofproperty

The act prohibits any taking of real property by an agency except as
necessary and for a public use. In any appropriation, the taking agency must show
by a geponderance of the evidence that the taking is necessary and for a public
use. (R.C. 163.021(A).)

Applicable procedure

Prior law required that all appropriations of real property be made pursuant
to R.C. 163.01 through 163.22, except that the Director of Transportation could
also appropriate real property as otherwise provided by law, a conservancy district
could appropriate real property pursuant to R.C. Chapter 6101., and a sanitary

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district could appropriate real property pursuant to R.C. Chapter 6115. In each of
these exceptional cases, the proceeding remained subject to R.C. 163.21(B) (fees
and costs; see below). In addition, prior law authorized a county, township that
had adopted a limited home rule government, conservancy district, sanitary
district, county sewer district, or a regional water and sewer district to appropriate
real property in the manner prescribed in R.C. 307.08(B), 504.19(D), 6101.181(B),
6115.221(B), 6117.39(B), or 6119.11(B), as applicable. These provisions all
permitted quick-takes to deal with public health exigencies. The act consolidates
these provisions into two divisions, R.C. 163.02(A) and (B), but makes no
substantive change in the statute by specifying that all appropriations of real
property must be made pursuant to R.C. sections 163.01 to 163.22, except as
except as otherwise provided in R.C. 163.06, as otherwise provided to abate a
health nuisance or because of a public exigency as provided in R.C. 307.08(B),
504.19(D), 6101.181(B), 6115.221(B), 6117.39(B), or 6119.1 1(B), or as otherwise
provided to abate a health nuisance or because of a public exigency as provided in
a municipal charter or ordinance. (R.C. 163.02(A), (B), (C), (D), (E), and (F).)

The act states that nothing in R.C. Chapter 163. precludes any person from
voluntarily conveying a property to an agency that is considering appropriating the
property or that offers to purchase the property under threat of appropriation. Any
such voluntary conveyance of a property to an agency is deemed for all purposes
to be a sale under the threat of appropriation for a public use. This provision
applies to a voluntary conveyance to an agency regardless of whether the property
is a blighted property or is located in a blighted area or the property subsequently
could be found for any reason not to qualify for appropriation by the agency.
(R.C. 163.02(E).)

Prerequisites to appropriation

County approval for takings by park authority

The act requires any park board, park district, board of directors of a
conservancy district, incorporated association with a purpose of establishing or
preserving public parks and mcmorial sitcs, or similar park authority that wishes to
appropriate real property outside the county or counties in which the park
authority is located to first obtain the written approval of the legislative authority
of each county in which the property is located, other than the county or counties
in which the park authority is located (R.C. 163.02 1(C)).

Veto authority

Thc act provides that if an appropriation is by a public agency that is not
elected and the owner has provided the public agency with a written objection to
the appropriation, the elected officials of the public agcney or elected individual

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that appointed the unelected agency may veto the appropriation. If the unelected
public agency was appointed by more than one public agency or elected
individual, a majority vote of the elected officials of the appointing public
agencies or elected individuals is required to veto the appropriation. If the public
agency that is not elected is a state agency or a state instrumentality such as a
university, the Governor has veto authority. The Governor may delegate that
authority but may not delegate that authority to the unelected agency that seeks the
appropriation. (R.C. 163.021(E).)

Notice ofintent

The act requires an agency that intends to appropriate property to notify’ the
owner of its intent at least 30 days before filing an appropriation petition by
delivering a written notice personally or by certified mail to the owner or the
owners designated representative. The notice must be substantially in the form set
out in the act. That statutory form requires a general description of the property
interest to be acquired by the agency and includes a summary of the owner’s legal
rights. (R.C. 163.04(A) and 163.041.)

Good faith offer

Together with the notice of intent, or after providing that notice but not less
than 30 days before filing an appropriation petition, an agency that intends to
appropriate property must make a good faith offer (see ‘Definitions,” above) to
the owner to purchase the property. The agency may revise the offer if before
commencing an appropriation proceeding it becomes aware of conditions
indigenous to the property that could not reasonably have been discovered at the
time of the good faith offer or if before the agency files the petition the agency and
the owner exchange appraisals. (R.C. 163.04(B).)

Appraisals

The act requires that before an agency appropriates property it must obtain
an appraisal of the property and provide a copy of the appraisal to the owner or, if
there is more than one owner, to each owner, or to a guardian or trustee of each
owner, at or before the time of the first offer, unless the appraisal indicates that the
value of the property is less than 510,000, in which case the agency need only
provide an owner, guardian, or trustee with a summary of the appraisal. The
agency need not provide an owner with a copy of the appraisal if the owner is
incapable of contracting in person or by agent to convey the property and has no
guardian or trustee, is unknown, or the owner’s residence cannot be ascertained
with rcasonable diligence. A public utility or the head of a public agency may
prescribe a procedure to waive an appraisal of property acquired by sale or

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donation if the property has a fair market value of $10,000 or less. (R.C.
163.04(C).)

Failure to agree

Under the act as under prior law, an agency may appropriate real property
only if the agency cannot reach an agreement with any owner or the guardian or
trustee of any owner of the property, unless each owner is incapable of contracting
in person or by agent and has no guardian or trustee, each owner is unknown or is
not a resident of Ohio, or the residence of no owner can with reasonable diligence
be ascertained. The act rewords prior law and adds that the failure to agree must
be on a conveyance or the terms of a conveyance. (R.C. 163.04(D).)

Traffic flow and access to property

The act permits an agency to appropriate real property for a project that will
disrupt the flow of traffic or impede access to property only after the agency
makes reasonable efforts to plan the project in a way that will limit those effects.
This requirement does not apply to an agency if the agency initiated the project for
which it appropriates the property under R.C. Title 55 (Roads, Highways, and
Bridges). (R.C. 163.04(E).)

Procedure in appropriation proceedings

Petition

Continuing law sets forth the items that a petition for appropriation must
include, such as a description of the property to be taken and the names and
addresses of the owners. Continuing law specifies that if the petitioner is a private
agency the petition must contain a statement that the appropriation is necessary.
The act extends the latter rcquircmcnt to all agencies and flirthcr mandatcs a
statement that the taking is for a public use. If the property being appropriated is a
blighted parcel being appropriated pursuant to a redevelopment plan, the petition
must contain a statement that shows the basis for the finding of blight and that
supports that the parcel is part of a blighted area.

Under prior law, if the agency required less than the whole of a parcel
containing a residence structure and the needed portion would remove a garage
and sufficient land that a replacement garage could not be lawfully or practically
attached, the agency had to appropriate the whole parcel and all structures. The
act removes the requirement for an appropriation of the whole parcel and all
structures unless, at the discretion of the owner, the owner waives this
requirement, in which case the agency must appropriate only the portion it

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requires as well as the entirety of any structure that is in whole or in part on the
required portion. (R.C. 163.05.)

Mediation

The act authorizes either party to an appropriation action, within ten
business days after the owner’s answer is filed, to request non-binding mediation
as to the value of the property being appropriated and requires the agency to pay
the cost of mediation. The court must appoint a mediator. The mediation must be
concluded within 50 days after the answer is filed, unless the judge extends the
time because of an inability to obtain an appraisal. (R.C. 163.051.)

Burden ofproof

Under prior law, before holding a jury trial to determine the compensation
that was due to a property owner, the judge had to determine whether the agency
could take the property by determining whether the agency had the right to make
the appropriation, whether the parties were unable to agree on a sale or other
transfer, andlor whether the appropriation was necessary if the owner denied any
of those matters in the answer. The owner bore the burden of proving that the
agency had not met those qualifications. Furthermore, in regard to the necessity
for the appropriation, a resolution or ordinance from the agency’s governing or
controlling body, council, or board declaring that the appropriation was necessary
constituted prima facie evidence of necessity in the absence of proof from the
owner showing that the agency abused its discretion in making that determination.

The act changes this process by placing the burden of proving the
preliminary issues on the agency and specifying that the agency must prove those
matters by a preponderance of the evidence, subject to three presumptions. First,
the act states that a resolution or ordinance of the governing or controlling body,
council, or board of the agency declaring the necessity for the appropriation
creates a rebuttable presumption of the necessity rather than prima facie evidence
of that necessity if the agency is not appropriating the property because it is a
blighted parcel or part of a blighted area or slum, and it eliminates the reference to
the need to show an abuse of discretion by the agency in determining necessity.
Second, the act provides that a public utility’s or common carrier’s presentation of
evidence of necessity creates a rebuttable presumption of necessity for the
appropriation. Third, the act creates an irrebuttable presumption of ncccssity
based on the approval by a state or federal regulatory authority of an appropriation
by a public utility or common carrier. The act expressly declares that subject to
the irrebuttable presumption only the judge may determine the necessity for an
appropriation. (R.C. l63.09(B)(l) and (2).)

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