Cincinnati attorney Matthew Fellerhoff, who recently joined the law firm of Strauss and Troy, has authored this guest post on possible ramifications of the recent decision in Clifton v. Blanchester, slip opinion No. 2012-Ohio-780. Read the analysis of the merits decision in the Clifton case here.
Here’s Matt’s guest post
Attorneys who practice in the area of takings law have long experienced frustration with the maze of procedural roadblocks presented by the U.S. Supreme Court’s decision in Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194-95, 105 S. Ct. 3108, 87 L. Ed. 2d 126 (1985). That decision and its progeny effectively reduced the opportunity for property owners to enforce their Fifth Amendment rights in federal court to something just greater than zero. Williamson County established confusing and often unnavigable ripeness requirements, that when joined with the inherent res judicata, statute of limitations and other procedural arguments, make it almost impossible to preserve Fifth Amendment issues for federal court. Practitioners have often asked in vain, what does it take to allow a property owner to enforce his or her Fifth Amendment rights in federal court?
The Supreme Court of Ohio decided Clifton v. Blanchester on March 1, 2011. It is one case which may afford a unique opportunity to circumvent the Williamson County hurdles. As reported in more detail earlier on this blog, Mr. Clifton filed an inverse condemnation case against the Village of Blanchester, asking the court to find that his property had been taken without compensation by the actions of the village in rezoning an adjoining property. Of particular import is the fact that the property rezoned was in the village. Mr. Clifton’s property was not.
Admittedly, a taking based upon the rezoning of an adjacent property would be challenging factually, but it is a claim that falls squarely under the analysis set forth by the U.S. Supreme Court in Penn Central Transp. Co. v New York (1978), 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631. However, rather than decide the case on the merits, the court dismissed the claim based upon standing.
The decision first relied on two Michigan decisions, which held that since the subject property was not physically regulated by the municipality involved, there was no direct causation and therefore no standing. That analysis, as is pointed out by Justice Pfeiffer in his dissent, does not appear to employ the Penn Central criteria, which looks at the effect of the action, rather than whether the municipality intended its action to directly affect the property. (Takings law is full of examples of takings caused by indirect causation, such as airport noise outside of the airport boundaries Argent v. United States , 124 F 3d 1277(1996) Branning v. United States 654 F, 2d 88, 228 Ct. Cl. 240(1981) and flooding, State ex rel. Gilbert v. City of Cincinnati, 125 Ohio St. 3d 385, 2010 Ohio 1473, 928 N.E.2d 706, (Ohio 2010)).
Even more problematic is the holding in the syllabus, that since Blanchester did not have the authority to condemn property outside of village limits, the remedy sought, an order from the court that Blanchester file an eminent domain action against Clifton to pay for the damage to his property (the only remedy for inverse condemnation under Ohio law), was insufficient and therefore, the Plaintiff further had no standing to file suit. In other words, even if there was a taking,Ohio procedures are inadequate to address it; therefore the case must be dismissed.
This result not only seems unfair, it also appears to invite exactly the rare scenario, where under Williamson County, state procedures are clearly inadequate to protect the property owner’s Fifth Amendment rights. (For a more detailed analysis of the law, see Preschool Dev., Ltd. v. City of Springboro, 2005 U.S. Dist. LEXIS 35535 (S.D. Ohio May 4, 2005), where another such rare scenario occurs in Ohio.)
It is unknown whether the Plaintiff in this matter decides to proceed in federal court. It is likely the costs of exhausting state remedies may make it difficult for the property owner to go any further. At the very least, this decision will be Exhibit A for any similarly situated property owner seeking to file directly in federal court because state remedies are clearly inadequate. For instance, if Blanchester caused the property to be flooded, according to this decision, the Plaintiff would not have standing to sue in Ohio.
Additionally, it will be interesting to see how the Court handles the decision in Matthew E. Moore et al. v. City of Middletown, argued the same day as the Clifton case, and involving a very similar set of facts. Considering the similarity of the cases, it is hard to understand why the Court is waiting on a decision in that case or how the ruling could be any different than that in Clifton. We shall wait and see.