Posted by: Patricia Salkin | January 21, 2015

OH Appeals Court Finds no Taking Where Bridge Construction Created Noise, Pounding and Vibrations

The construction of new west-bound lanes of a bridge project by the Ohio Department of Transportation (ODOT) “required the driving of steel beams, called piles, down 180–200 feet to bedrock” to support the new bridge. The homeowners filed a complaint against ODOT, alleging that the work on the bridge project resulted in “extreme noise, pounding and vibrations * * * separate and distinct from that experienced by other affected properties,” and causing appellants’ home to be uninhabitable. The complaint alleged causes of action for inverse condemnation, as well as public and private nuisance.

The Court of Claims of Ohio granted summary judgment in favor of ODOT and homeowners appealed. Homeowners contended that the Court of Claims erroneously interpreted Ohio law to require a physical invasion of their property or a total denial of access, and that genuine issues of material fact remained as to whether ODOT substantially interfered with the use and enjoyment of their property. Although the homeowners argued that the trial court applied the wrong standard, and should have analyzed the undisputed facts under the Penn Central test for a regulatory taking, they hadn’t referred to Penn Central in the Court of Claims, arguing only that ODOT had “‘substantially and materially’ interfered with their use of their property,” and had physically trespassed.
The Court of Appeals affirmed the Court of Claims, concluding that the Court properly analyzed the facts under the correct standard: “‘As ordinarily understood, the term, ‘taking,’ as used in the Constitution, comprehends ‘[a]ny direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it.”” Further the Appeals Court said, “[I]nconveniences such as noise, dust, and vibrations arising out of government construction projects are not generally compensable in takings actions.” Here, the Court said that the type of “inconveniences” which the homeowners suffered through here were not enough to mount a takings claim. In fact, the court noted that while expressing frustration with the noise, dirt, and other annoyances, appellant Birge was not aware of any physical damage or harm to her property as a result of the construction work. Similarly, appellant Sommer was unaware of any structural damage to the house. Appellant Birge assumed, once the construction was completed, she would be able to enjoy her property the same as she did prior to the work. Appellant Sommer, while agreeing that the bridge construction work “needs to be done,” believed that ODOT “could have come to us and maybe let us know what was going on and give us maybe fair warning.” (Sommer Depo. 27.)

Editor’s Note: Hat Tip to Robert Thomas, Esq. at the InverseCondemnation Blog for this post: ; see a photo and more about this case:

Sommer v. Ohio Dept. of Transp. – 2014 -Ohio- 5663 (12/23/2014)

The opinion can be accessed at:

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