Summertime, and the Livin’ is Easy.

Further Update: On September 18, 2012, the Court handed down a merit decision in Amer. Chem. Soc. v. Leadscope. Read the analysis here.

Update: On August 30, 2012, the Court handed down a merit decision in Moore v. Middletown. Read the analysis here.

While the Supreme Court of Ohio is currently out of session, and fairly so, there are two cases that are approaching one year of being under submission.  One is American Chemical Society v. Leadscope which was argued September 7, 2011. This unfair competition and defamation case has had more hits on my blog than any other case. Some of the issues raised are whether Ohio recognizes the tort of malicious litigation, and if so, can it be used as the basis of an unfair competition claim?  What are the elements of this tort?  Was there sufficient evidence of malicious litigation and of defamation to go to the jury? Did ACS have legitimate grounds for bringing the suit in the first place?  Was ACS being punished just for bring its claims to court? The jury verdict of $26.5 million for Leadscope continues to accrue post judgment interest.

On September 6, 2011,  the Supreme Court heard oral argument in two cases dealing with partial regulatory takings. In the first, Clifton v. Village of Blanchester, the property owner, whose land was outside the limits of the village, argued that Blanchester’s re-zoning of property  owned by a machining company adjacent to his property, including two of his acres within the village limits that he had previously sold to the machining company, reduced the value of his remaining property, so as to constitute a partial regulatory taking.  The Supreme Court handed down a merit decision in this case on March 1, 2012, rejecting Clifton’s argument on standing grounds.  The syllabus of Clifton holds that “a property owner lacks standing to bring a regulatory-taking claim against a municipality when the affected property is outside the municipality’s corporate limits.”

When ­the Court decided the Clifton case, I noted in my blog post that it was puzzling that the Court didn’t also decide Moore et al. v. City of Middletown,  which was argued the same day, raising similar issues. In Moore the plaintiffs’ property was located in Monroe and bordered a parcel of land in Middletown which was zoned as low-density residential. Middletown re-zoned that land to a general industrial classification in order to allow a coke plant to be built on the site.

The plaintiffs in the Moore case asked the Court to adopt this proposition of law: “A disaffected non-resident contiguous property owner has standing to challenge re-zoning and setback legislation enacted by the adjacent political subdivision that directly, substantially, and adversely affects said property owners’ property.”

I noted in my blog after both oral arguments that the justices seemed far more sympathetic to the homeowners in the Moore case than to the farmer in the Clifton  case.  But in Clifton, as Justice Pfeifer pointed out, the Court did not really engage in a regulatory-takings analysis because the standing issue was dispositive.  Perhaps the Court is trying to tackle the regulatory takings issue in Moore. But to do so, it would have to figure out how the standing issue in Moore  is any different than it is in Clifton. The standing issues seem to be the same in both cases. It’s hard to see how the Court can get around its own Clifton syllabus in the Moore case.

Well, in any event, when the Court resumes its regular docket August 21, it’s clear it’s going to be a busy fall.  Three justices are up for election. Plus, Justice Stratton is leaving the Court at year’s end, and there are a lot of cases she sat on that are still under submission.

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2 Responses to Summertime, and the Livin’ is Easy.

  1. Andy Engel says:

    The only real difference between Moore and Clifton is that, in Moore, the property was being used for its end purpose – residential. In Clifton, the property was undeveloped. Under the standing analysis it announced in Clifton, however, I don’t know that is a significant point. I agree, the Court did not like what happened in Moore. I don’t recall if there was anything about the prior zoning of the property which might lend itself to some sort of cognizable expectancy.

    • MBettman says:

      Andy,
      As I wrote, I think the Court is struggling to distinguish the standing issue in the two cases. But the majority in the Clifton did say this in its conclusion section-“However, we emphasize that we do not hold that an adjoining property owner may never have standing. Instead, we hold that a property owner lacks standing under the facts and circumstances presented here.”
      MBB

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