Ohio court orders state to compensate owners for ‘taking’ land

COLUMBUS — Farmers and other land owners in Mercer County are one step closer to receiving compensation for flood damages that they say are the result of a new spillway constructed on Grand Lake St. Marys.

The Ohio Supreme Court on Dec. 1 issued a writ of mandamus ordering the Ohio Department of Natural Resources to commence appropriation proceedings to compensate owners of land west of the lake for a “taking” of their property through “increased overflows from the lake into Beaver Creek.”

The court’s 7-0 decision found that the state’s 1997 widening of the western spillway caused “a significant increase in the frequency, severity and duration of flooding of downstream properties, to the detriment of the owners of those properties.”

High value

Bruce Ingram, an attorney for the land owners, said the decision is ” good news” for farmers who have lost crops, soil and buildings over the past decade and a half. He said the farmland is some of Ohio’s best, and could be worth $10,000-$11,000 an acre.

“The state’s looking at paying out some very big dollars on this,” said Ingram, a legal partner at the Columbus office of Vorys, Sater, Seymour and Pease.

But no money will be paid yet. The court order only requires the state to “commence appropriation proceedings.”

Laura Jones, spokesperson for ODNR, said the department is still reviewing the decision and the department’s next course of action. But, she said there is some relief in seeing the current case resolved.

“While (the outcome) was disappointing, we believe it also puts us one step closer to being able to manage the lake on a broad scale,” she said.

Now that the court has made its decision, she said there may be opportunity for mutual agreements to be made outside of court.

A time table for calculating damages is still unclear, but Ingram said he’s hoping trial dates will be set for the individual property owner cases early in 2012. He estimates 45-50 cases could be brought before the court in Mercer County, representing a land mass of more than 2,000 acres.

“Each client will have its own compensation trial,” Ingram said.

Chad Endsley, director of ag law for Ohio Farm Bureau Federation, said the farm organization became involved when five initial property owners complained of damages. The land owners were successful in those cases, but dozens of additional damaged properties were left unaddressed.

“It was obvious that the spillway had caused increased flooding not only on those five parcels but a number of additional parcels,” Endsley said. “We are very pleased that the Ohio Supreme Court has recognized that the increased flooding constitutes a ‘taking’ and that the affected land owners are entitled to just compensation.”

History

According to a statement by the Ohio Supreme Court, the spillway was replaced and upgraded in 1997, going from 39 feet wide to 500 feet wide. Roughly 90 property owners in the affected area are seeking compensation for damages to their property.

The state argued the complaints were not filed within the four-year time limit that generally applies to “a physical or regulatory taking of real property.” However, the court ruled the four-year limit is not an issue, because the state’s actions at the lake caused continuous and recurring damages.

Judge’s words

In concluding that the property owners had met their burden of showing the increased flooding of their land was caused by the spillway expansion, Justice McGee Brown wrote: “First, Realtors presented substantial, credible, and uncontroverted firsthand testimonial and documentary evidence that following the respondents’ construction of the new spillway in 1997 and its subsequent abandonment of lake-level management, their properties flooded more frequently, over a larger area, for longer duration, and with greater damage.

“Second, Realtors’ primary expert, engineer Pressley L. Campbell, testified that the redesigned spillway caused frequent and severe flooding in the Beaver Creek-Wabash River area. This flooding would have been ‘highly unlikely, if not impossible’ without the new spillway and respondents’ subsequent failure to manage the lake level.”

McGee said officials were free “to determine that redesigning the spillway and abandoning lake-level management were the preferable ways to remedy the probable-maximum-flood problem and to appeal to both recreational users of the lake and homeowners on the southern shore of the lake.

“Once they made that decision, however, they were liable for the damage to downstream landowners caused by the intermittent, but inevitably recurring, flooding that resulted from the new western spillway.”