By Peggy Kirk Hall, director of agricultural law, Ohio State University Agricultural and Resource Law Program
A landowner challenging the taking of land for a bikeway has lost in an appeal to the Ohio Supreme Court. The decision by the state’s highest court doesn’t address whether Mill Creek MetroParks may take the land for the bike trail, but instead gives the Mahoning County Common Pleas Court the go ahead to continue the eminent domain proceeding.
The landowner’s argument. Mill Creek MetroParks filed a case in 2019 to appropriate land from Edward Schlegel, who would not voluntarily consent to selling some of his land for the park district’s bike trail extension. Schlegel sought to have the case dismissed when the Ohio General Assembly included a provision in the state’s budget bill in 2021 intended to address landowner opposition to the Mill Creek MetroParks bike trail. The new provision prevents any park district in a county of between 220,000 and 240,000 people from using eminent domain for a “recreational trail” until July 1, 2026. Mahoning County falls within the population range.
Schlegel asked the Mahoning Court of Common Pleas to dismiss the Park District’s eminent domain proceeding against him based on the new law. But Common Pleas Court Judge Sweeney denied Schlegel’s request, stating that the new law did not apply because the legislature passed the law after the Park District filed Schlegal’s case. Schlegal then asked the Ohio Supreme Court for a “writ of prohibition” that would prevent Judge Sweeney from continuing with the eminent domain case.
The Supreme Court’s reasoning. In seeking a writ of prohibition, Schlegal had to demonstrate that the common pleas court exceeded its authority and that he had no remedy at law other than a writ of prohibition. The problem with Schlegel’s request, according to the Supreme Court, is that he did have an alternative and adequate remedy: an appeal. When the Mahoning County court issues a decision in the eminent domain proceeding, Schlegal has a right to appeal the decision. At that time, he could challenge the judge’s decision not to dismiss the case due to the new law.
Schlegel argued that the procedures for an eminent domain case prevented him from challenging the common pleas court’s refusal of his request to dismiss the case. An eminent domain proceeding has two parts: the first is a determination of whether the agency has the right to make an appropriation of property and if so, the second is to determine the amount of compensation due for the appropriation. Schlegel argued that because the new law became effective after the common pleas court determined the Park District had eminent domain authority, he lost his right to appeal that issue. Not so, according to the Supreme Court. Schlegel still has the right to appeal whether the park district may use eminent domain when the court issues its final judgment in the case regarding compensation. A writ of prohibition therefore is not warranted, the Court concluded.
What now? Schlegel’s eminent domain case will resume in the Mahoning County court. We can expect an appeal by Schlegel when the court determines the amount of compensation for the taking.
Another bike trail case is coming. In the meantime, the Ohio Supreme Court recently decided to review another case challenging the Mill Creek MetroParks bike trail. The Seventh District Court of Appeals issued a decision earlier this year in favor of a bike trail challenge by landowner Diane Less. The court held that the Park District lacked authority to use eminent domain against Less, basing its decision on the insufficiency of the resolutions the Park District passed when it decided to acquire land for the bike trail. Ohio law allows a park district to use eminent domain authority for two specific purposes: the conversion of forest reserves and the conservation of natural resources, and the appellate court determined that the Park District’s purpose for using eminent domain to extend the bike trail did not meet either of those purposes. The Park District appealed that decision and on September 14, the Ohio Supreme Court agreed to review the decision. The Court will likely hear the case in 2023.