IN THE SUPREME COURT OF OHIO

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL. RICHARD C. GILBERT, and STATE OF OHIO EX REL. CASE NOS LEE A. GILBERT, V. Appellants/Relators, CITY OF CINCINNATI, HAMILTON COUNTY BOARD OF COMMISSIONERS, and THE METROPOLITAN SEWER DISTRICT OF GREATER CINCINNATI, ON APPEAL FROM THE HAMILTON COUNTY COURT OF APPEALS FIRST APPELLATE DISTRIC R^'^-QFY Appellees/Respondents. MEMORANDUM IN OPPOSITION AND CROSS APPEAL OF APPELLEES/RESPONDENTS CITY OF CINCINNATI, HAMILTON COUNTY BOARD OF COMMISSIONERS, and THE METROPOLITAN SEWER DISTRICT OF GREATER CINCINNATI Paula Boggs Muething ( ) Coansel of Record Terrance A. Nestor ( ) Assistant City Solicitor City of Cincinnati Law Department 801 Plum Street, Room 214 Cincinnati, Ohio Telephone: (513) Facsimile: (513) Attorneys for Appellees/Cross-Appellants/ Respondents City of Cincinnati, Hamilton County Board of Comn:issioners, and the Metropolitan Sewer District of Greater Chacinrwti Matthew W. Fellerhoff ( ) Counsel of Record Daniel J. McCarthy ( ) MANLEY BURKE A LEGAL PROFESSIONAL ASSOCIATION 225 West Court Street Cincinnati, Ohio Telephone: (513) Facsimile: (513) mwf^a,manleyburke.com d mecarthy@manleyburke.com Attorneys for Appelltazts/Relators Richard C. and Lee A. Gilbert

2 TABLE OF CONTENTS P.age 1. INTRODUCTION...1 II. STATEMENT OF THE CASE AND STATEMENT OF FACTS...2 A. Statement of the Case...2 B. Statement of Facts...3 III. LAW AND ARGUMENT Cross Appeal Proposition of Law No. 1. The lower court erred by denying the City's Motion to supplement the records as the Schwiers Affidavit provides evidence that is dispositive of the legal issues in this case Cross Appeal Proposition of Law No. 2. The court erred in finding that the Gilberts were entitled to the extraordinary relief of mandamus for a physical taking...12 A. The Gilberts do no possess a clear right to appropriation The Gilberts failed to plead facts sufficient to establish a permanent physical taking The Gilberts failed to plead facts sufficient to allege a temporary taking B. The Gilberts have a plain and adequate remedy at law...19 Cross Appeal Proposition of Law No. 3. The lower court erred in denying the City's Motion for Findings of Fact and Conclusions of Law Appellant's Proposition of Law. A governmental regulation need not deprive a property owner of all economically viable use of the property in order for the regulation to constitute a taking under the United States and Ohio Constitutions A. The Gilberts do not possess a clear legal right to appropriation...25 B. The Gilberts have not established that the City has a clear legal duty to appropriate the subject property IV. CONCLUSION...32 CERTIFICATE OF SERVICE...34 ii

3 TABLE OF AUTHORITIES Board of County Commissioners v. Florian (Ohio App. 1 Dist. 1985) 1985 WI, , 19 PaEe Concrete Pipe & Products, Inc. v. Constr. Laborers Pension Trust (1993) 508 U.S Doremus v. Paterson (1908), 73 N.J. Eq Doud v. City ofcincinnati (1949), 152 Ohio St First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1987), 482 U.S Florian v. Board of County Commis.sioners ofhamilton County (Ohio App. I Dist. 1981), 1981 WL Florian v. Paul, et al. (Ohio App. 1 Dist. 1977), No. C-76332, 1977 WL , 24 Goldberg Cos., Inc. v. Richmond Hts. City Council (1998), 81 Ohio St.3d Kentchel v. Bainbridge Twp. (1990), 52 Ohio St.3d Loretto v. Teleprompter Manhattan CATV Corp. (1982), 458 U.S Masley v. Lorain (1976), 48 Ohio St.2d , 17, 18 McKee v. City ofakron (1964), 176 Ohio St Norwood v. Sheen (1933), 126 Ohio St , 16, 17, 20 November Properties v. City of Mayfield Heights (Ohio App. 8 Dist. 1979), No, 36926, 1979 WL State ex rel. BSW Dev. Grp, v. City of Dayton (1998), 83 Ohio St.3d , 27, 28 State ex rel. Hzinter v. Certain Judges of the Akron Mun. Court (1994), 71 Ohio St.3d State ex rel. Livingston Court Apts. v. Columbus (1998), 130 Ohio App.3d State ex rel. McCullough v. Indus Comin. (2002), 94 Ohio St.3d State ex rel. OTR v. Columbus (1996), 76 Ohio St.3d , 25 State ex rel. Pressley v. Industrial Commission (1967), 11 Ohio St.2d ui

4 State ex rel. Shelly Materials, Inc. v. Clark Cty Bd. Of Conamrs. (2007), 115 Ohio St.3d , 25, 27 State ex rel. Shemo v. Mayfield Hts. (2002), 95 Ohio St.3d , 26 State ex rel. United Auto, Aerospace, & Agricultural Implenaent Workers ofam. V. Bur. Of Workers'Comp. (2006), 108 Ohio St.3d State ofohio ex rel. East, Inc. v. City oforegon (Ohio App. 6 Dist. 1984), No. L , 1984 Wl Sullivan v. Hamilton County Board of Health (Ohio App. I Dist. 2003), 155 Ohio App.3d The Shopco Group v. Springdale (Ohio App. 1 Dist. 1998), 66 Ohio App.3d , 26, 30, 31 'I'rautwein v. Sorgenfrei (1979), 391 N.E. 2d Valley Auto Lease of Chargin Falls v. Auburn Twp Bd. Of Zoning Appeals (1988), 38 Ohio St.3d iv

5 I. INTRODUCTION The First District Court of Appeals has created a new rule of law: any evidence of a sewer overflow, regardless of a claimant's inability to demonstrate the degree of the overflow or any resulting damage, shall result in a per se taking, requiring the government to purchase the parcel of land upon which the "taking" has occurred. This is a marked departure from the jurisprudence of the U.S. Supreme Court, the Supreme Court of Ohio and of the First District itself. The First District cast aside both the law and the facts in the instant case. The fallacy of the First District's approach is that the Gilberts were the master of their legal fate. As the City repeatedly maintained to the lower court, the Gilberts may very well have been entitled to a legal remedy. But the Gilberts did not seek a legal remedy. Instead, they sought the extraordinary relief of mandamus which required that they demonstrate that they had a clear legal right to appropriation of their property, that the City was under a clear legal duty to appropriate the property and that the Gilberts had no adequate remedy at law. The Gilberts failed to demonstrate that they were entitled to such extraordinary relief and the First District abused its discretion in providing the requested relief The Gilberts made a bad investment. They purchased property without checking into whether the property was or soon could be hooked into the sewer system. Because the Gilberts refuse to take responsibility for their bad investment they are looking to place blame anywhere else, in the hopes of finding a way out. The First District has obliged with the escape hatch. 1

6 II. STATEMENT OF FACTS AND STATEMENT OF THE CASF. A. Statement of the Case On March 7, 2007, the Gilberts filed a Verified Petition for Writ of Mandamus against the City of Cincinnati, the Hamilton County Board of Commissioners, and the Metropolitan Sewer District of Greater Cincinnati (collectively "the City"), as an original action in the First District Court of Appeals. Briefs were timely filed and oral arguments heard on August 14, The City filed a motion to supplement the record on October 2, 2007, in order to update the Court on the status of the Britney Acres Pump Station upgrade. The City's motion was granted on October 9, The Court issued an opinion (Gilbert I)1 on November 30, 2007, denying the Gilberts'request for a writ of a mandamus. The Gilberts appealed to this Court but, prior to briefing, the Gilberts sought a motion for stay of the briefing schedule in this Court and a partial remand of the physical taking issue in order to pursue a motion for relief from judgrnent on the basis of "newly discovered evidence" in front of the First District Court of Appeals. "This Court granted the motions; the City opposed the motion for relief from judgment in front of the First District as the "newly discovered evidence" consisted of information available to, and in the possession of, the Gilberts in the first trial. However, on July 17, 2008, the First District improvidently granted the motion for new trial and the Court set forth a new briefing schedule on the merits of the issue of whether or not a "physical taking" occurred. Briefs were again timely filed and the City filed a rnotion to supplernent the record on January 28, 2009, in order to update the Court that the Britney Acres Puinp Station upgrade was complete and online? The Court heard oral argument on February 2, 2009 and during the City's argument, the Court orally denied the City's motion to supplement the record. On March 13, 1 GilbertI, 2007-Ohio Respondents' January 28, 2009 Motion to Supplement the Record, with Affidavit of Thomas Schwiers attached hereto in Appendix. 2

7 2009, the First District issued its order ("Gilbert II"),3 finding that a physical taking had occurred and ordering the City to appropriate the property. On March 20, 2009, the City filed its Rule 52 Motion for Written Findings of Fact and Conclusions of Law and on Mareh 27, 2009, the City filed its Rule 59 Motion for a New Trial 4'The First District denied both motions on April 15, The City timely appealed Gilbert II to this Court. Appeals from Gilbert I and Gilbert II were consolidated; this brief presents both the City's (as Cross-Appellant) Merit Brief, appealing the cotirt's decision in Gilbert Il, and the City's (as Appellee) Memorandum in Opposition to Appellant's Merit Brief, in support of the First District's decision in Gilbert I. B. Statement of Facts The Gilberts request an extraordinary remedy, namely that the City acquire property that is no longer subject to a use. By the First District's ruling, the government (and by extension the taxpayers) must acquire property that is not being used by the government and that, according to the Gilberts, at most was used "79 days from 1998 to the present."5 The City disputed that equivocal evidence and submitted that the evidence showed "eight days."6 The court noted this discrepancy but made no finding of fact as to which view of the evidence was the correct one.7 By either count, the extent of the "physical invasion" of the Gilberts' property was de minimus. Moreover, the physical invasion was fleeting and the Gilberts have failed to show any damagethat is, there is no evidence of any kind of expense, remediation, or even expert analysis to ascertain any contamination of the Gilberts' creek. And now the overflow is cured.8 3 Gilbert II, 2oo9-Ohio Respondents' Rule 59 Motion, and Exhibit A Pittinger Affidavit, ancl Respondents' Rule 52 Motion, both motions attached hereto in Appendix. e Gilbertll, 2009-Ohio-1o78 at 9. 6Id. 7Id. 8 Respondents' Motion to Supplement the Record, Exhibit A Affidavit of Michael Pittinger at

8 The record demonstrates quite a different picture than the one painted by the Gilberts. Richard Gilbert admitted that when he pttrchased the property at Woodruff Road, he did so without knowing whether the property had access to the sanitary sewer system and without any expectation regarding the upgrade of the Britney Acres Pump Station.9 Richard Gilbert also failed to ensure prior to purchasing the property that he would have access to the sewer system in order to cut the property into the number of parcels he envisioned;10 in fact, Mr. Gilbert did not even learn of the planned upgrade to the Brittany Acres substation until after he purchased the property." In reliance on that letter [June 10, 1997 letter referenced in Appellant's Merit Brief p.4], did you purchase the property with the expectation that the MSD was going to upgrade the Britney Acres Pump Station? A. No. Q. Okay. Explain to me why then you purchased the property. A. I purchased the property to develop it. I got this letter [June 10, 1997 letter referenced in Appellant's Merit Brief p.4] after I purchased the property. Q. Okay. Before you got the letter, did yoa have an expectation regarding the upgrade of the pump station? A. No. I expected it to happen to the sewer. The sewer was at the road. And before you purchased the property, did you contact the MSD to see if you could tap into the sewer. A. No, I did not. ' R. 227, Supplement ("Supp.") o R. 227, 228., Sttpp R. 227, Supp

9 Q. So you purchased the property without knowing whether or not you A. That's true. could tap into the sewer? Q. And you purchased the property without knowing there were going to be limitations on yoiu ability to use the sewer? A. That's true. Q. So you didn't make an investigation about whether or not you could cut up the parcel before you purchased the property? A. No, I did not.i2 Gilbert similarly did not seek approval from the General Health District ("GIID") for onsite septic systems to service any new lots he wished to create on the property,13 even though his stated intention in purchasing the property was either to break the parcel into several lots and flip the newly created lots, or to sell the entire piece of property to a developer to do the same.1a Gilbert purchased the property expecting to develop it without conducting auy reasonable investigation into whether he had access to the sanitary sewer system and without obtaining preliminary approval from either the MSD or the GHD in order to ensure that waste disposal would be available for the parcels he envisioned creating on the subject property.15 In iact, Mr. Gilbert admitted that when he purchased the property he knew he might have to "sit on the acreage for a while" until sewer service access was granted for the parce1.16 Nevertheless, the Gilberts attempt to hold the City responsible because their land speculating has not produced the economic return to which they believe they are entitled. 1= F.xcerpt from Deposition of Richard Gilbert, R , Supp " R. 229, Supp R. 227, Supp R. 228, 229, Supp. 18, 19. ie R. 261, Supp

10 Thomas Schwiers, an engineer for MSD, has been with the institution since Over that time he has lield several different positions. In 2000 he was placed in charge of subdivisions and public improvements, during which time he reviewed proposed subdivisions and developments and dealt with the Treatment Division on pump stations.'$ Mr. Schwiers first became familiar with the parcel located at 8109 Woodruff Road as a result of a request for preliminary design approval for a cut up, submitted by an agent of the Gilberts, to Mr. Schwiers' department.79 At that time, the Brittany Acres substation was at capacity and MSD was unable to grant approval for the number of parcels the Gilberts wished to develop.20 During this time, the MSD had a nurnber of projects that it planned to undertake; due to budgetary constraints, the Brittany Acres substation upgrade did not receive final approval from the Board of County Commissioners until July As the Brittany Acres Pump Station was at capacity, new tap-ins to the sewer system were not approved in that location.22 For this reason, the Gilberts sought approval from the GHD to use onsite septic systems for waste treatrnent on multiple lots. The GHD denied approval of the Gilberts request for the installation of four separate septic systems.23 The Gilberts never appealed this decision nor did they ever seek a variance from the Board of County Commissioners in order to obtain these on site systems 24 After the denial from the GHD, Mr. Schwiers continued to work with the Ohio EPA and the GHD in an attempt to gain approval for four new tap-ins, so that the Gilberts could develop the subject parcel.z' Mr. Schwiers was ultimately successful in gaining approval for the four new tap-ins and he indicated in his deposition that he "had to fighf' in order to get approval from Ohio EPA for these four new R. 43, Supp. 2. R , Supp R , Supp R. 48, Supp. 6. zj R. 62, Supp. 7. z R. 48, Supp. 6. ^ R. 232, Supp R. 234, Supp s R , Supp

11 sewer tap-ins. But this was not enough for the Gilberts?6 If they had sewer access, they wanted access for eleven lots, not simply four.27 Upon receiving approval for the four new tap-ins, the Gilberts developed a myriad of reasons for why they couldn't develop the property. First, they stated that it wasn't economically feasible because with sewer taps, they should be able to develop eleven properties, instead of only four.28 Next, they stated that the approval they received wasn't sufficient because it would cost too much money to comply with all of the MSD requirements for a sewer tap in.29 This "cost" was and remains totally unknown, as the Gilberts never obtained any estimates or bids on the project fi om any professional, nor is there evidence that they researched comparable systems or projects in order to arrive at a reasonably projected cost.30 However, Mrs. Gilbert testified that cost was not the issue.31 She indicated in her deposition that money could always be found, either fi om borrowing or partnering with someone, but that she simply didn't trust the letter that she received from the MSD providing approval for the four new taps 32 The Gilberts never submitted a concept plan to MSD for approval of the four lots.33 In Gilbert II, the court states on the fourth page of its decision: "The Gilberts note that, on at least 79 days from 1998 to the present, either the Brittany Acres Purnp Station had evidence of a discharge or a discharge was actually observed. The [C]ity argues that the reports only show actual discharges on eight days.i34 The court provided no resolution of this factual issue. Based on data contained in the document marked Exhibit 28 and attached to the Pittinger deposition, the total number of possible bypasses at the Brittany Acres pump station since 1992 (six years prior to the Gilberts purchase of the property) is That number combnies both the possible 26 R. 253, Supp ' R. 244, , Supp. 23, R , Supp R. 245, 290, , Supp. 24, 30, R , Supp R , Supp R , Supp " R. 243, Supp. 22, 34 Gilbert ll, 2009-Ohio R , Supp

12 bypasses, marked in the monthly reports as "AH", and the observed bypasses, marked in the monthly reports as "POS" 36 As explained by Mike Pittinger, an MSD engineer, where a monthly report contains an "AH" on a given date, it is a signal that there is circumstantial evidence that an overflow may have occurred but there has not been an overflow observed on site 37 Where the monthly report contains a"pos" on a given date, it is an indication that an overflow has been visually identified.3s For the over ten year period from January 1998 through July 2008, only 8 bypasses or overflows were observed on site at the Brittany Acres Puntp Station.39 Mr. Pittinger also testified that the occasions on which the pump station overflows are typically associated with a heavy rain event 40 Mr. Pittinger stated that the pipe that permits outfall into the creek from the pump station is eight (8) inches in diarneter and the storm sewer pipe immediately adjacent to the pump station is approximately six (6) and a half feet in diameter.41 In a typical wet weatlier event, the stor-in water pipe would be charged with storm water, thus, any bypass or overflow from the eight inch pump station pipe would be highly diluted with the flow of storm water coming through the six and a half foot storm sewer pipe.4z In his deposition Bill Winters, an MSD engineer, testified that the Brittany Acres pump station upgrade has been constructed and that the upgraded station would be put into service soon.43 Mr. Winters also testified that the upgrade would eliminate the possibility of an overflow at the Brittany Acres pump station, thereby achieving compliance with the Federal Consent Decree.44 As the City's Motion to Supplement the Record demonstrates, the upgrade is complete and the new pump station is in use and online.45 Accordingly, the upgrade of the pump station 'c R , Supp R , Supp g R , Supp R , Supp R , Supp R , Supp R , Supp R2 451, Supp R2. 452, Supp. 50. `'S Respoudents' Motion to Supplement the Record, Exhibit A Pittinger Affidavit at 6. 8

13 has eliminated the possibility of any fitture overflow into the creek that runs through the Gilberts property. The Gilberts have not provided any evidence or data as to the level or severity of the overflows they allege have affected their property. There is no evidence in the record that provides data or information on either (1) the specific amount of sewage that overflowed from the Brittany Acres pump station into the creek on the Gilberts' property or (2) the water quality in the creek that could provide circumstantial evidence of the severity or level of any such overflows. Testimony from the Gilberts demonstrates that Mrs. Gilbert observed raw sewage in the creek twice46 and Mr. Gilbert observed raw sewage in the creek three or four times 47 It is unclear whether these instances overlap or whether they are 5 to 6 distinct instances. 'The Gilberts admitted that they have not incurred any costs as a result of problems with the creek or the overflow of sewer or waste water into their creek.48 They further admitted that they have never had their property analyzed by any engineers or other professionals to determine whether raw sewage is or was present in the creek, the level or amount of the sewage and/or contamination, and the potential costs incurred for clean up.49 In addition, the Gilberts testified that there were at least two, and possibly three, failing on-site septic systems in their area50 and their own onsite septic system malfunetioned at least twice.51 There is 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 systein's malfunction. The Gilberts testimony demonstrates that they have not been forced to move out of their property for any length of time based on the severity of the odor or the alleged sewer overflow,52 nor are they currently looking for a home.'3 They have not incurred any costs associated with 06 R. 515, Supp. 41. d7 R. 215, Supp. 15. '$ R. 213, Supp ' R , 223, , Supp , 16, S0 R. 515, Supp. 41. s" R. 281, 514, Supp. 29, R. 202, Supp. 11. s3 R. 249, Supp

14 any problems attendant to a flow of sewer or waster water into their creek, any analysis of any such flow, or any clean up of a sewer overflow.54 The Gilberts admit that the property is still being used in the manner it was being used at the time of purchase, as a single family residence." Since 1998 when the property was purchased by Richard Gilbert, the Gilberts have continuously used their property as a single family residence. III. LAW AND ARGUMENT Cross Appeal Proposition of Law No. 1. The lower court erred by denying the City's Motion to supplement the record as the Schwiers Affidavit provides evidence that is dispositive of the legal issues in this ease. The City seeks reversal under this assignment of error for two primary reasons. First, the court did not take into account the significant fact of the complete remediation and upgrade of the Brittany Acres pump starion.36 The denial of the City's Motion to Supplement the Record leads directly into the second issue, namely, that given the completion of the upgrade, the court abused its discretion in concluding that there was a taking in this case. Based on this grave error, the City sought a new trial pursuant to Civil Rule 59 (A) (1), (6), and (8). Rule 59 provides alternative bases for the evidence of the elimination as being grounds for a new trial. Rule 59 allows for a new trial when there is an "(1) irregularity in the proceedings...(6) the judgment is not sustained by the weight of the evidence...[or] (8) newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial."'7 As the court recognized in Gilbert I, the court is both the "trier of fact and the arbiter of law,"58 but the court here excluded a significant factttal issue that was determinative of the 54 R , 223, , Supp , 16, s R. 207, Supp Respondents' January 28, 2009 Motion to Supplement the Record, Affidavit of Thomas Schwiers; Respondents' Rule 59 Motion, Exhibit A Pittinger Affidavit at Oh. R. Civ. P Gilbert I, 2oo7-Ohio-6332 at r8. 10

15 applicable law of the case. The exclusion of this critical piece of evidence was unreasonable, arbitrary and unconscionable, constituting an abuse of discretion by the lower court. At the time of the briefing of this case, the upgrade of the Brittany Acres Pump Station was not complete. The upgrade was compete and online as of January 13, The upgrade eliminated sanitary sewer overflows at the station.60 The City attempted to bring the new evidence to the attention of the court. Despite the significance of this evidence to the resolution of the legal issues in dispute, the court denied the City's motion to supplement the record on this issue.61 "The City asserts that the abatement of the SSO eliminates any take. In the absence of quantifiable damages caused by the prior alleged pliysical invasions, there can be no taking.62 The micontested evidence in the affidavits is that the putnp station is fixed and the overflows have ended.63 The unique "trial" of the facts in this case highlights the difficulties of presenting a detailed factual issue in a "record" trial under an appellate court's original jurisdiction.64 Nonetheless, the court denied the City's motion to supplement the record on the basis that "the Gilberts should have an opportunity to present their own evidence on the issue."65 The City had no objection to the Gilberts putting on evidence regarding the pump station upgrade. In any event, evidence of the complete abatement of the disputed physical invasion should have been admitted and considered by the First District, as it is largely deterrninative of the nature of the alleged taking-and the applicable legal remedy for that alleged taking. As the court observed in Gilbert I, the court's task is to determine "whetlier the Gilberts' " Respondents' Motion to Suppleinent the Record, with Affidavit of Tliomas Schwiers and Respondents' Rule 59 Motion, Exhibit A Pittinger Affidavit at Id. at 6. 6' Gilbert II, 2009-Ohio-1078 at 16. See, irrfra, at B. 63 Respondents' Rule 59 Motion, Exhibit A Pittinger Affidavit at 6, attached hereto. 64 Because this is a factual inquiry, the court might be well served by the appointment of a special master to determine if there were any contpensable damages to the Gilbetts' property. e5 Gitbertll, 2009-Ohio-1078 at

16 private property has been taken by the public authorities."66 When the governmment asserts that it is no longer taking any property, that evidence is material to the court's inquiry. When the landowner has no evidence of damage, the rule in Ohio is that there is no taking when there is no permanent invasion.67 With the admission of evidence from the City that there is no physical invasion as of January 13, 2009, it is uncontested that there can be no permanent taking of the (iilbert property. Under long-established U.S. Supreme Couat case law, in order to cornprise a taking, flooding must "constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property."68 The proof offered by the City is that all permanent invasion has ended. The remedy the court has ordered is not damages for an injury to the Gilberts' property but appropriation of that property. At a minimmn, the court was required to consider the evidence that the necessaiy factual predicate of a permanent physical invasion was ongoing; the failure to do so was an abuse of discretion. Cross Appeal Proposition of Law No. 2. The court erred in finding that the Gilberts were entitled to the extraordinary relief of mandamus for a physical taking. The Gilbert Il court abused its discretion in awarding the Gilberts the extraordinary relief of mandamus. In order to be entitled to relief in a mandamus action, the Gilberts rnust have demonstrated (1) a clear legal right to appropriation; (2) a corresponding legal duty on the part of the City to appropriate the property; and (3) the absence of an adequate or plain remedy at law.69 In a mandamus action based on an alleged taking, the court must determine whether the relator's 66 Giibertl, 2007-Ohio-6332 at 18. 6' McKee v. City of Akron ( 1964), 176 Ohio St. 282, 285, 199 N.E:2d R Loretto v. Teleprompter Manhattan CATV Corp. (1982), 458 U.S. 419, 428, 102 S.Ct (internal citations omitted). '9 State ex rel. Shelly Materials, Inc. v. Clark Cry. Bd, of Commrs., (2007) 115 Ohio St.3d 337, 340, 875 N.E.2d 59,

17 private property has been taken by the public authority.70 When making a factual determination, "the proof produced must be plain, clear, and convinenig before a court is justified in using the strong arm of the law by way of granting the writ."71 The Gilbert II decision failed to identify the type of taking, i.e. temporary or permanent, failed to identify the extent of the taking, i.e. the creek only or the entire parcel, and failed to coniport with the law as established in the cases cited throughout the decision itself. Accordingly, the Gilbert II court's decision was unreasonable, arbitrary and unconscionable, constituting an abuse of discretion by the lower court. The United States and Ohio Constitutions guarantee that private property shall not be taken by the govermnent, for public use, witliout just compensation.72 In order to establish such a taking, a landowner must demonstrate a substantial or unreasonable interference with a property right. Such an interference may involve the actual physical taking of real property, or it may include the deprivation of an intangible interest in the premises.73 This Court has acknowledged that the overflow from a public sewer onto private property may constitute a taking of that property for which compensation is forthcoming.74 The cases noted by this Court in support of this proposition of law, Norwood v. Sheen and Masley v. Lorain, are discussed in greater detail below and are cases in which extensive damage was incurred by the property owners as a result of the overflows that were the subject of those cases. The Gilberts did not provide siniilar evidence. 70 Id, at 342. " State ex rel. Pressley v. Industrial Commission (1967), 11 Ohio St.2d 141, 161, 228 N.E.2d Fifth aud Fourteenth Amendments to the United States Constitution; Oliio Constitution, Article I, Section 19. " State ex ret. OTR v. Columbus (1996), 76 Ohio St.3d 203, 667 N.E.2d S. '" Trautwein v. Sorgenfrei, (1979) 391 N.E.2d 326, 332, (citing Maslev v. Lorain (1976), 48 Ohio St.2d 334, 358 N.E.2d 596; Norwoodv. Sheen (1933), l26 Ohio St. 482,186 N.E. 102.). 13

18 The Gilbert II court's decision in essence held that any overflow from a public sewer onto private property is a per se taking. 'I'his Court has never held that any overflow from a public sewer is a per se taking. Under traditional takings analysis, the Gilberts are unable to establish that the government has interfered with their property to such an extent as to constitute a taking. The Gilberts were unable to substantiate any damage to their property as a result of overflow from the Brittany Acres pump station. Accordingly, the Gilberts were unable to provide information as to the extent and type of damage sustained. Thus, in order to find a taking tinder the facts of this case, the Gilbert 11 coml established a new legal precedent that any overflow of sewage onto private property is aper se taking requiring appropriation of the subject property. As this new legal precedent is withottt actual or conceptual support from any prior decisions of this Court or the United States Supreme Court, the First District's decision in Gilbert II constitutes and abuse of discretion requiring reversal. A. The Gilberts do not possess a clear legal right to appropriation. As set forth below, the Gilberts' claims failed under both the permanent physical invasion takings analysis and the temporary takings analysis. 1. The Gilberts failed to plead facts sufficient to establish a permanent 12hvsical taking. 1'he Gilbert II court noted in its decision that there is a significant discrepancy between the ntunber of overflows that the Gilberts have alleged (79) and the number of overflows that the City has indicated (8).75 Despite its reluctance to resolve that factual dispute, the court nonetheless determined that "the Gilberts' new evidence shows unequivocally that the Brittany Acres Pump Station has overflowed a substantial number of fimes since 1998.i76 The court "GilbertII, 2009-Ohio-1078 at 9. 'Id. at il. 14

19 consequently found that a taking in the nature of an "actual physical invasion" had occurred.77 Factual discrepancies as to the number of overflows aside, the record unequivocally established that the Gilberts have never been displaced from their home as a result of the overflows, have never paid any costs associated with remediation or analysis of the overflows and have continued to utilize the property as a single-family residence. Given these undisputed facts, a taking did not occur within the meaning of Ohio takings law. Overflow from a sewer does not constitute a per se taking under Ohio case law; rather, an overflow gives rise to a taking otnly if damage is incurred as a result of the overflow.7$ Given the lack of evidence provided in this case as to actual damages of any kind, the Gilberts have alleged as the measure of their damages the loss of the ability to fiilly realize their investment-backed expectations. However, the seminal case of Norwood v. Sheen clearly holds that "[w)here depreciation to real estate is only temporary and removable, depreciation in the market value of the land cannot be considered."w Since the only "damages" alleged by the Gilberts as a result of the overflows are "damages" that cannot be considered by the court, the overflows cannot be said to constitute a taking of the Gilberts' property. Thus, the court's detennination that a taking has occurred tmder these facts is contrary to the applicable law and constitutes an abuse of discretion. I'he court arbitrarily created a new legal theory, unsubstantiated by the existing case law, that equates any overflow of sewage onto private property as a per se taking requiring appropriation of the property, regardless of whether or not the overtlow has given rise to damages. 77 Id. at 1f u, See, e.g., Norwood v. Sheen (1933), 126 Ohio St. 482, 184 N.E. 102, and Masley v. Lorain (1g76), 48 Ohio St.2d 334, 358 N.E.2d 596. w Sheen,126 Ohio St. at 495 (quoting Doremns v. Paterson (19o8), 73 N.J. Eq. 474, 69 A. 225). 15

20 2. The Gilberts have failed to plead facts sufficient to allege a temporary taking. The Sheen case establishes "the proper measure of damages for temporaiy injury to real property from a flowage upon land and the backing up of water or the discharge of sewer thereon, when the condition has been completely abated."80 In such a situation, "the plaintiff could only recover the value of the use of the land for the time it was occnpied by the city... for the purpose of discharging the sewer thereon."81 There is no doubt that the taking alleged by the Gilberts can only be qualified as temporary taking for a finite period of tiine and therefore that the remedy for such a temporary taking is monetary damages, not appropriation. But instead of ordering the City to compensate the Gilberts for their damages (if any), the court ordered the City to begin appropriation proceedings against the property.82 To compel appropriation proceedings, the remedy for a permanent physical invasion, in the case of what can, at best, be characterized as a temporary take under the relevant case law, is an error of law that requires reversal. Further, the Gilbert II court's reliance upon No;tivood v. Sheen,83 Masley v. City of Lorain,84 and the Florian line of cases,85 indicates that the claims were analyzed as temporary takings. Such "temporary" takings which deny a landowner all use of his property are not different in kind from permanent takings.rs In order to recover uuder this takings theory, a property owner must be denied all use of his property for the period during which the taking is 80 Sheen, 126 Ohio St. at xi Id. at 495. $' Gilbert II, 2009-O1uo-1078 attl7. 83 (1933),126 Ohio St. 482, 186 N.E.2d 102. $' (1976), 48 Ohio St.2d 334, 358 N.E.2d 596. gs Florian v. Paul et al (Ohio App. I Dist. 1977), No. C-76332, 1977 WL ; Florian v. Board of County Comrnissioners of Kamilton County (Ohio App. 1 Dist. 1981), 1981 WL 9934; Board ofcounty Commissioners v. Florian (Ohio App. I Dist, 1985), 1985 WL $6 First English Evangelical Lutheran Church of Glendale v. Los Angeles County (1987), 482 U. S. 304,318, 107 S.Ct >.6

21 alleged.87 For the measure of damages, property owners are entitled to the diminution in the value of the use of their property during the period of the temporary taking.88 The Gilbert II court's reliance upon Masley v. Lorain is misplaced. In Masley, the City of Lorain implemented a new storm sewer construction program in order to drain storm and surface waters.89 This Court found that as a direct result of the inadequately designed new storm sewer system, the flow of water in the creek increased and accelerated, and all four parcels owned by the Masleys were flooded 90 In that case, it was stipulated that these pieces of property would not have flooded but for the city's new storm water system.91 The Masleys claimed that there had been an unconstitutional taking of their property and this Court agreed. This Court held that a municipality was liable for appropriation pro tanto if, in constructing public improvements, it changed the flow of surface water so as to physically eneroach upon the property of another by continued flooding.92 The instant case and Masley are clearly distinguishable. The syllabus of the Masley cases states that where the construction and operation of a municipal storm sewer system causes material damage to a property owner, such a direct encroachment will entitle the property owner to compensation.93 In the instant case, the Gilberts did not provide evidence of any damage at all, much less "material" damage to their property. The Masley's alleged, and the record stipulated, continued flooding on their parcels. The Gilberts did not allege such widespread encroachment. In fact, the record provides evidence of only eight instances of an observed onsite overflow of the Brittany Acres pump station, and the extent of the overflows or quantity of 87 Shopco, 66 Ohio App.3d at See Sheen,126 Ohio St. at 494; Firsa 7;7aglish, 482 U.S. at 319; State ex rel Sherno v. Mayfield Hts. (2002), 95 Ohio St.3d 59, 69, 765 N.E. 2d Masley, 48 Ohio St. 2d at Id. 91 Id Id. at Id at Syllabus. 17

22 sewage released in the overflows are uiilcnown. Further, there is no evidence of any resulting damage to the Gilberts property as a result of any such overflows. Demonstration of damages is a critical coniponent of a temporary takings claim and the Gilberts have not provided any evidence on this point. Accordingly, the Masley case is inapposite to the Gilberts claim. The Gilbert II court also relied upon the Florian line of cases to support their claims. In these cases, the Florians complained of sewage which flowed into their harbor almost continuously for approximately two years.94 The Florians had to redredge their harbor every time it filled in, in order to maintain their marina business 95 In addition to the problems associated with the harbor filling with sewage, there was a stench emanating from the marina because of the amount of sewage in the area, and boats housed in older docks closest to the sewage spill had to be moved to newer dock spaces while the old ones remained vacant for the pendency of the sewage flow.96 Florian and other witnesses testified that they witnessed raw sewage flowing from the manholes along the old sewer line into the marina, that there was a terrible stench that hung over the Florian property, and that due to the sewage flow the marina lost business and had to undertake expensive dredging operations to remove the sewage from the marina and maintain navigability of the harbor.97 Evidence of such extensive and widespread danlage provided the requisite support for the Florians' temporary takings claim. Such evidence of damages led the Flor ian court to determine that a partial and temporary taking of the Florians' real estate had occurred. In contrast, the Gilberts did not provide any evidence relating to the level or extent of the overflows and utterly failed to provide any evidence of damages resulting from overflows of the Brittany Acres Pump Station. 9M1 Floriara, 1985 WL 9266, * I. 95 Id. 96 Id. "Id.at*4. 18

23 In City of Nonvood v. Sheen,98 a sewer system discharged sewage upon the land of the plaintiff, which flowed into the plaintiff's cellar, destroying property within and requiring the plaintiff to incur the costs of cleanup and recovery. In State ex rrel. Livingston Court Apts. v. Columbus,99 the court found a taking where a city's inaction in ignoring the effects of other landowners' illegal connections to the city's sewer system resulted in flooding of a property owner's rental property basements. Testimony in Livingston Court revealed that, on a number of occasions, the basements were flooded with raw sewage such that extensive damage to both items in storage units and the basements themselves was incurred.100 Again, by contrast the Gilberts failed to allege any damage as a result of overflows of the Brittany Acres Pump Station. In these cases cited by the Gilbert 11 court, evidence of damages was produced in support of the claims and such danlages were extensive and quantifiable. The Gilberts were unable to point to any damages suffered as a result of the alleged sewer overflow. Rather, the damages they allege and for which they seek recovery is for the loss of investment backed expectations. No other Ohio court has recognized this as a cognizable takings claim. Based on the foregoing, the Gilberts failed to demonstrate that they possessed a clear legal right to appropriation and failed to deinonstrate that the City possessed a clear legal duty to appropriate the property. The court's decision in Gilbert II constitutes an abuse of discretion and should be reversed. B. The Gilberts have a nlain and adequate remedv at law. An action for mandamus will not be sustained where relator possesses an adequate remedy in the ordinary course of law,101 or a plain and adequate remedy at law.102 Where the 126 Ohio St. at 482. (1998), 130 Ohio App.3d 730, 721 N.E.2d Zd at State ex ret. Hunter v. Certain Judges of the Alrron Mun. Court (1994), 71 Ohio St.3d 45, 46, 641 N:E.2d 722. rg

24 relief sought is well-suited to an action by which the claimant has an adequate remedy in the course of ordinary law, mandainus is precluded.103 In State of Ohio, Ex Rel. East, Inc. v. City qf Oregon, 104 the court considered a mandamus action in w[iich the property owners claimed that the City of Oregon was utilizing their property as a roadway for installation of utilities and for surface drainage. Although the court determined that city did not "take" the property, it considered whether the property owners had a plain and adequate remedy at law. The court stated: "[the property owner] does have other adequate remedies in the ordinary course of law available to it, e.g. an action for trespass and damages, if trespass has occm-red and damages have resulted.i105 At best, the Gilberts alleged facts to support causes of action in trespass and nlusance. These are plain and adequate remedies at law; the Gilberts should have brought suoh claims in a court of appropriate jurisdiction in order to properly seek recovery on their claims. Furthermore, the completion of the upgrade to the Brittany Acres pump station eliminates the possibility of any future overflows. Thus, any relief sought by the Gilberts is retrospective and quantifiable. Accordingly, mandamus relief was not appropriate in this instance. The lower court abused its discretion in granting such relief and, accordingly, Gilbert II should be reversed. Cross Appeal Proposition of Law No. 3. The lower court erred in denying the City's Motion for Findings of Fact and Conclusions of Law. The Gilbert II court stated on the third page of its decision: "It has also stated numerous times, and this court has acknowledged, that the release of large quantities of raw sewage from a sewer system onto private property constitutes a taking." Despite this assertion, the court did not 1oa State ex ret. United Auto., Aerospace, & Agricuttrual Implement Workers ojam. v. Bur. Of Workers' Comp. (2006), 108 Ohio 9t.3d 432, 844 N:E.2d 335. l03 State ex red. McCullough v. Indu,s. Comm. (2002), 94 Ohio St.3d 156,761 N.E.2d (Ohio App. 6 Dist. 1984), No. L , 1984 Wl, 7817, Id. at *3. 20

25 issue findings of fact or provide citation to the record of any evidence that quantified the amount of the release of sewage. Instead, the court observed on page four of its decision that the statements of the parties were in conflict on that issue: "The Gilberts note that, on at least 79 days from 1998 to the present, either the Brittany Acres Pump Station had evidence of a discharge or a discharge was actually observed. The [Clity argues that the reports only show actual discharges on eight days." The foregoing statement highlights the uncertainty as to that factual issue. The court did not, however, resolve that conflict by making findings of fact as to the quantity and/or amount of sewage that was released onto the Gilberts' property. Indeed, the City's position, as stated in its brief and at oral argument, is that the extent of the damage, i.e., the quantity and/or amount of sewage that flowed onto the Gilberts' property, was simply not addressed, either through deposition testimony or data introduced into evidence or through the reports or analysis of any experts. Because the court's statement that "the release of large quantities of raw sewage from a sewer system onto private property constitutes a taking" appears to be the lynclipin of its decision, the City respectfully requested that the court enter specific findings of fact as to this issue. As the standard of proof was clear and convincing evidence, the absence of such a finding presents obvious difficulties for this Court to determine the precise basis for the lower court's decision. Accordingly, the Gilbert II court erred in denying the City's motion for written findings of fact in connection with the portion of that court's decision that addresses the quantity and/or amount of sewage that was released onto the Gilberts' property. The Gilbert II court also failed to resolve a question of fact as to the evidence of overflows onto the Gilbert's property. The court stated on page four of its decision that "several 21

26 witnesses testified that when the Brittany Acres Pump Station overflowed, the raw sewage flowed into the creek on the Gilberts' property." In fact, none of the witnesses in this case (including the Gilberts) testified to personally witnessiiig an overflow. In this mandamus action, five witnesses were deposed: Relators Richard and Lee Gilbert and three engineers from the MSD: Tom Schwiers, Michael Pittinger, and William Winters. In their depositions, the Gilberts testified that they had never witnessed an actual overflow of the pump station; the MSD engineers similarly testified that they had never witnessed any overflow occurring. Instead, the MSD engineers provided testimony that, in the case of an overflow, the pump station was designed to overflow into the creek. Given the lack of testimony as to eyewitness accounts of overflows, the court's conclusion that there was firsthand evidence of such overflows was not supported by clear and convincing evidence. Accordingly, findings of fact on this point were warranted. As previously stated, the absence of such findings present difficulties for this Court in determining the basis for the court's decision. Accordingly, the Gilbert II court erred in denying the City's motion for written findings of fact in connection with the portion of that court's decision that addresses the occurrence of overflows. Finally, the Gilbert II court failed to resolve a question of law as to the nature of the taking found by the court. On page seven of its decision, the court ordered the City to cornmence appropriation proceedings without identifying the precise type of taking that it had found. Characterizing a taking as either a permanent physical invasion or a temporary taking fundamentally affects the type of analysis that is applicable in the valuation or damages portion of the proceedings. Appropriation of propeity is proper in cases in which a court has found a permanent physical taking of property. In contrast, the proper measure of damages in the case of 22

27 a temporary taking is some measure of monetary damages directly flowing from the loss of use andlor damages incurred as a result of the temporary taking. Since permanent and temporary takings each have separate remedies, the nature of the taking is essential to determining the appropriate reniedy. However, the court did not identify the type of taking that the City effected over the Gilberts' property. The court's decision relies primarily upon Norwood v. Sheen (1933), 58 Ohio St.2d 493, which provides for monetary damages as opposed to appropriation of property as relief Florian v. Paul (June 8, 1977), l gt Dist. No. C-76322, also cited in the court's decision, provides for similar relief. The court's reliance on these cases suggests a temporary taking; however, the court granted the writ to compel the City to bring appropriation proceedings, which is the proper remedy for a permanent taking. Accordingly, the City therefore sought clarification of both the nah.lre of the taking and the specific relief the court ordered in favor of the Gilberts. Further, if the court was indeed ordering the City to appropriate the Gilberts' property, the City sought clarification of the court's decision and order in this case. The Gilberts' Petition for Writ requested appropriation of the entire property. However, as there was no demonstration that the overflow occurred on any portion of the Gilberts' property outside of the creek, the City sought parameters as to the precise nature of the appropriation ordered by the court. Accordingly, the Gilbert II court erred in denying the City's motion for a written conclusion of law with respect to the nature of the taking at issue. The First District's failure to issue findings of fact and conclusions of law in accordance with the City's Rule 52 Motion constituted an abuse of discretion. The denial of the motion requires reversal by this Court. 23