Summary
The Supreme Court of Ohio affirmed a judgment granting mandamus to compel Cincinnati and related governmental entities to commence an appropriation proceeding for a physical taking caused by repeated sanitary-sewer overflows onto the property owners’ land. The court held that the repeated sewage discharges and resulting interference with use and enjoyment constituted a physical taking, while the alleged regulatory taking based on delayed sewer-system upgrades lacked merit because there was no constitutionally protected right to government-provided sewer access and the owners’ investment-backed expectations were unreasonable.
Topics
Practice areas
Questions Presented
- Whether the Gilberts were entitled to a writ of mandamus compelling the city to institute an appropriation proceeding for an alleged regulatory taking based on the city's failure to upgrade the sewer system and permit additional sewer connections.
- Whether repeated sewage overflows onto the Gilberts' property constituted a physical taking requiring an appropriation proceeding.
- Whether the Court of Appeals abused its discretion by denying the city's motion to supplement the record with evidence that the pump-station upgrade had been completed.
- Whether the Court of Appeals erred by denying the city's request for findings of fact and conclusions of law.
Holdings
- The Gilberts were not entitled to a writ of mandamus compelling an appropriation proceeding for a regulatory taking because access to government-provided sewer service is not a constitutionally protected property interest under the circumstances, and their investment-backed expectations were not reasonable.
- Repeated direct deposition of sewage into the creek on the Gilberts' property, which deprived them at least in part of use and enjoyment of the property, constituted a physical taking and entitled them to a writ of mandamus compelling the city to commence an appropriation proceeding.
- The possibility that the taking was temporary, or that the pump-station upgrade had been completed, did not preclude mandamus compelling an appropriation proceeding; those matters primarily concerned the measure of damages.
- The Court of Appeals did not err in denying the city's request for findings of fact and conclusions of law because its judgment and opinion, together with the record, adequately disclosed the basis for decision.
Key quotations
“Any direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it, is a taking of his property, for which he is guaranteed a right of compensation by section 19 of the Bill of Rights.” (¶ 29)
“Whether a taking is characterized as temporary or permanent is of little significance in determining whether a taking has occurred and is not conclusive on the issue of when a suit must be brought on a taking claim, but such characterization has a bearing on the measure of damages.” (¶ 36)
Factual background
The Gilberts owned a 5.5-acre Cincinnati property containing a creek and intended to develop it into residential lots. Although a sewer line and pump station were nearby, the system lacked capacity for the proposed development, and the city delayed upgrading the pump station. Between 1998 and 2008, the pump station overflowed onto the property on at least 79 days, depositing sewage into the creek and prompting the city to post a warning sign because of potential health risks.
Procedural history
The Hamilton County Court of Appeals initially denied both mandamus claims. After the Gilberts obtained additional sewer-overflow evidence, the court granted relief from judgment and, on remand, granted a writ requiring an appropriation proceeding for the physical-taking claim while denying the regulatory-taking claim. The Supreme Court of Ohio affirmed.