Destruction of right of access is a compensable taking even if property is still economically viable.
In 1991, Hilltop Basic Resources, Inc. (Hilltop) purchased approximately 30 acres of riverfront property in Cincinnati, which it used primarily as a barge fleeting facility. Hilltop obtained permits to construct a curb cut and driveway from the property to River Road, the nearest public thoroughfare, but failed to construct the driveway before the permits expired. Hilltop could thus access the site only by crossing the property of surrounding landowners, which it did pursuant to a revocable license agreement.
In 2004, Queensgate Terminals, LLC (Queensgate) began leasing the property from Hilltop and planned to build a driveway to River Road in connection with its development of an intermodal barge-to-rail facility. In 2005, however, the city denied the building permit for the driveway and notified both parties that the property could never access River Road because such access would interfere with the reconstruction of an adjacent bridge.
Hilltop and Queensgate then sought a writ of mandamus to compel the city to institute eminent domain proceedings, alleging that the city's actions constituted a taking of their property. After the court of appeals granted the writ, the city purchased the property from Hilltop and then appealed the court order only as it related to Queensgate.
The city's primary argument on appeal was that its denial of access to the public road was not a compensable taking because it did not deny Queensgate all economically viable use of the property. The state supreme court noted that while this argument would be successful if Queensgate had alleged a regulatory taking, it was not applicable in this ease.
Instead, the court held that a landowner is entitled to compensation for "the destruction of a fundamental attribute of ownership like the right of access" even if the property retains economic viability. A property owner has a right to access abutting public roadways, and any substantial or unreasonable governmental interference with that right constitutes a taking of private property, according to the court.
Furthermore, the court held that this rule applied even though the property was undeveloped and that Queensgate could establish a right to compensation based on a reasonably potential future use. Finally, the court found that the right of access available under a revocable, nongovernmental license to cross other privately-owned land did not preclude compensation for the city's denial of access. The court concluded that denying the permit for the driveway substantially and unreasonably interfered with Queensgate's right of access to the public road and thus that it was entitled to compensation. The appellate court decision was affirmed.
State ex tel. Hilltop Basic Resources, Incorporated v. City of Cincinnati
Supreme Court of Ohio
April 30, 2008
886 N.E.2d 839 (Ohio 2008)