City of Dublin v. Pewamo Ltd.

954 N.E.2d 1225, 194 Ohio App. 3d 57
CourtOhio Court of Appeals
DecidedApril 12, 2011
DocketNo. 10AP-499
StatusPublished
Cited by5 cases

This text of 954 N.E.2d 1225 (City of Dublin v. Pewamo Ltd.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Dublin v. Pewamo Ltd., 954 N.E.2d 1225, 194 Ohio App. 3d 57 (Ohio Ct. App. 2011).

Opinion

Tyack, Judge.

{¶ 1} This is an appeal from an appropriation action brought by appellee, the city of Dublin, Ohio, to acquire property from appellant, Pewamo Ltd., for the public purpose of road improvements to State Route 161 (“SR 161”). To improve [60]*60the road, Dublin acquired approximately three acres of a 60-acre tract with frontage along SR 161 and Cosgray Road.

{¶ 2} Therll Clagg purchased the entire tract in 1999 for $20,000 per acre as an investment. He later formed Pewamo Ltd. and transferred the property to Pewamo. The parcel was undeveloped, zoned for agricultural use, and used for farming. Prior to the taking, the property had what has been referred to as three access points on SR 161. The access points were dirt and gravel areas designed for farm-vehicle access. One was a semicircle with both ends opening onto SR 161, and one was a single entrance.

{¶ 3} As part of Dublin’s 2007 Community Development Plan, the property was included in an area designated the “Central Ohio Innovation Center.” The plan specified future development of the property as high-density office/research and development. The parties’ appraisers hypothesized that such use would be the highest and best use of the property. However, Pewamo’s appraiser later downgraded her earlier appraisal to lower-intensity commercial use centering on office use.

{¶ 4} At the heart of the parties’ dispute was the loss of value, if any, of the roughly 57-acre residue. That controversy centered on access to SR 161. Pewamo contended that its losses were in the area of $4 to $6 million, because access to and from SR 161 was limited to a single 16-fooL-wide driveway. Dublin contended that Pewamo had adequate access to the highway for future development and therefore there was no loss of value to the residue.

{¶ 5} In a partial taking such as this, a property owner is entitled to compensation for the property taken and for the loss of value of the property that remains after the taking, known as the residue. Hilliard v. First Indus., L.P., 158 Ohio App.3d 792, 2004-Ohio-5836, 822 N.E.2d 441, ¶ 5. The loss of value of the residue is measured by the difference between the fair market value before the appropriation and the fair market value after the appropriation. Id.

{¶ 6} “In determining both pre- and postappropriation fair market values, every element that can fairly enter into the question of value and that an ordinarily prudent businessperson would consider before forming judgment in making a purchase should be considered.” Id. See also Masheter v. Hoffman (1973), 34 Ohio St.2d 213, 221, 63 O.O.2d 357, 298 N.E.2d 142. Among the important elements to consider are loss of ingress and egress and any other losses reasonably attributable to the taking. Hilliard at ¶ 5.

{¶ 7} At trial, the jury traveled to the site to view the premises, heard expert testimony, and examined maps, drawings, photos, appraisal reports, and plans for the highway project. After deliberations, the jury awarded Pewamo $685,051 as compensation for the three-acre taking. The jury awarded no damages for the [61]*61loss of value of the residue. Pewamo appealed asserting the following assignments of error:

I. The trial court erred to the prejudice of Pewamo by allowing evidence, testimony and argument that Pewamo would have access to a state highway in the future when Dublin’s project engineer denied that such access existed and the project plans and specifications actually prohibited such access.
II. The trial court erred to the prejudice of Pewamo by refusing to instruct the jury that it could not consider speculative and potential future access to Pewamo’s property in determining the damages to the residue but instead must assume that the property will be used in the most damaging way possible as reasonably revealed from the project plans and specifications.
III. The trial court erred to Pewamo’s prejudice by refusing to give a proper and complete jury instruction on internal circuity of travel as required under clear and controlling Tenth District precedent.
IV. The trial court erred to Pewamo’s prejudice by admitting into evidence the appraisal report and valuation testimony of Dublin’s appraiser.
V. The jury’s finding of zero damage to the residue of Pewamo’s property was against the weight of evidence.

{¶ 8} The first and second assignments of error relate to the evidence and jury instructions regarding access to SR 161. Our standard of review regarding the admission or exclusion of evidence is abuse of discretion. Barnett v. Sexten, 10th Dist. No. 05AP-871, 2006-Ohio-2271, 2006 WL 1230676, ¶ 5. An abuse of discretion means more than an error of law or judgment. Rather, an abuse of discretion implies that the court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140.

{¶ 9} In this case, Pewamo argues that the trial court erred as a matter of law by admitting evidence about future access to the residue by means of a roundabout that had been constructed on what was formerly Pewamo’s property. Pewamo argued that the residue lost value due to the limitation of access to SR 161 to a single 16-foot driveway. Pewamo presented evidence that there was no current access to SR 161 by means of the roundabout, and that Dublin had no plans to create such access.

{¶ 10} Barbara Cox, the engineering manager for development in Dublin, testified that any right-of-way from SR 161 is under the Ohio Department of Transportation’s (“ODOT”) jurisdiction. She also stated that ODOT directed Dublin to create the 16-foot driveway. Cox further testified that there was currently no other access to the Pewamo property because the property was in an agricultural state. She stated that when Dublin was finished with the current [62]*62project, access from the roundabout would not be permitted. Based on this testimony, Pewamo argues that the jury should not have heard any evidence that there would be access by means of the roundabout because it was speculative and therefore inadmissible.

{¶ 11} Dublin’s appraiser based his opinion of no loss of value of the residue on the assumption that Pewamo would have enhanced access to SR 161 by way of the access drive and by means of the roundabout. The jury heard evidence that there was an access point on the roundabout that would allow ingress and egress to the residue, although the point was currently closed. Dublin conceded that there were no plans to complete the access at the time because the residue was still being farmed, and the 16-foot driveway was adequate for farm vehicles needing access to the property. Moreover, Dublin did not want to allow farm vehicles to enter and exit by means of the roundabout because it was a safety hazard. In other words, the road project did not interfere with the agricultural use to which the Pewamo property had been previously devoted. The 16-foot paved driveway provided access for farm vehicles just as the prior dirt and gravel accesses had provided.

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Cite This Page — Counsel Stack

Bluebook (online)
954 N.E.2d 1225, 194 Ohio App. 3d 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-dublin-v-pewamo-ltd-ohioctapp-2011.