Unreasonable Conditions on Land Use Permits — Lack of Remedies for Ohio Landowners

The following article was written by Laura Englehart, Summer Associate at Kohrman Jackson & Krantz and a law student at CSU's Cleveland-Marshall College of Law

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Earlier this month, we posted an article outlining the U.S. Supreme Court decision in Koontz v. St. Johns River Water Management issued on June 25, 2013.  The Court concluded that it is unconstitutional for the government to attach unreasonable conditions to land use permits, even when a permit is denied.  However, the Court also articulated a difference between denying a permit and a consummated taking, and it left open the question as to what is the appropriate remedy for a landowner harmed by an unconstitutional conditions violation. 

Though an unreasonable condition to a permit burdens a constitutional right, the Court stated in Koontz that if the permit is denied and the condition never imposed, then there is no actual taking and the remedy of just compensation is not available.  Rather, remedies and damages are available based on the particular cause of action.  Koontz was brought under a Florida law expressly allowing landowners to sue for monetary damages when conditions on permits are unreasonable and constitute a taking without just compensation. Ohio law does not clearly provide for remedies with respect to a permit at all.

Ohio has seen significant legislative and judicial action on regulatory takings and eminent domain in the past eight years.  Following the 2005 U.S. Supreme Court decision Kelo v. New London, which allowed takings of non-blighted private land for purposes of economic development, the State of Ohio enacted a one-year moratorium on such takings and created a task force to study eminent domain restrictions.  At the same time, the Ohio Supreme Court in Norwood v. Horney imposed limits that prohibit eminent domain for economic benefit alone, require heightened scrutiny review of eminent domain, and prevent government from condemning a non-blighted property simply because the property may be deteriorating.  In 2007, based on the recommendations of the task force, Ohio enacted legislation that defines blight, requires notice to property owners before government can initiate appropriation proceedings to effect a regulatory taking, and sets forth procedures for determining compensation. 

Under Ohio law today, to allege an involuntary taking of private property, the appropriate action is for a landowner to file a writ of mandamus to compel government to commence appropriation proceedings. See State ex rel. Shelly Materials v. Clark County Bd. of Comm'rs, 115 Ohio St. 3d 337, 340 (Ohio 2007).  According to Ohio’s appropriation proceedings, the government must first file a petition for appropriation of property in the proper court, the landowner then must file an answer, and a jury must assess compensation for the property appropriated as well as for damages, including relocation expenses and interest. 

However, these appropriation proceedings assume a consummated taking and do not delineate a separate procedure or remedy for disputes over unreasonably conditioned permits.  Because no actual taking occurs when government imposes unreasonable conditions on a permit, the process set forth in Ohio’s appropriation proceedings are unlikely to be available as a remedy.  Therefore, even if the Koontz decision allows landowners to better challenge unreasonable conditions on permits, with the remedies of just compensation and statutory appropriation proceedings unavailable, it’s unclear what remedies, if any, would be available to Ohio landowners.