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Before and after appraisal not required in condemnation.

To reduce flooding and to regulate the flow of the Blanchard River, the Maumee Watershed Conservancy District (District) sought a diversion channel situated on a property owned by the Bueschers (19.004 acres) and T & A Properties (16.115 acres).

The District's appraised value of Bueschers' real estate equaled $7,492.10 per acre (agricultural) and $14,904-00 per acre (non-agricultural). T & A Properties' farmland was valued at $7,504.56 per acre.

The District sent a notice of its appropriation intent and real estate appraisal to the Bueschers and to T & A Properties, and pursuant to statute the District made a good faith offer, based on its appraisals, to purchase the Bueschers' land for $146,234-00, and to purchase T & A Properties' land for $120,943.08. Neither property owner accepted the offer or made a counteroffer so the District filed its petitions and complaints for appropriation. After owners' motions for judgment on the pleadings failed at the trial court level this consolidated appeal was filed.

The property owners argued that the District did not comply with statutory and constitutional requirements for just compensation.

The District asserted that it had the power and authority to appropriate real property for the public purposes of "(a) construction of a new diversion channel for the Blanchard River; (b) regulation of the flow of the Blanchard River; (c) maintenance of open space for the conservation of natural floodplain functions; (d) creation of recreational facilities, and related improvements; and (e) maintaining, operating, altering, replacing, and repairing the diversion channel and recreational facilities."

After being unable to reach an agreement on the conveyance or the terms of the conveyance of the property, the District requested to appropriate a fee simple interest in a portion of the property owners' land. The District asserted that it had provided the owners a good faith offer based on appraisals more than thirty days prior to the filing of its appropriation actions.

The appeals court noted that under state law, an agency may appropriate real property only after the agency obtains an appraisal of the property and provides a copy of the appraisal to the property owner. When the appraisal indicates that the property is worth less than ten thousand dollars, the agency need only provide the property owner with a summary of the appraisal.

The property owners claimed the District had failed to provide just compensation for their real estate as the District had based its good faith offers on invalid appraisals that did not consider the before and after value of their respective properties. The owners did not argue that the statute was ambiguous or convoluted, rather, they simply asserted that the District's failure to conduct a before and after appraisal of their real estate is contrary to Ohio law.

The property owners supported their argument that before and after appraisals are required in appropriation proceedings by citing Hilliard v. First Industrial, L.P. In that case, the court held that damage to the portion of property remaining after the other portion is taken is measured by the difference between the pre--and post-appropriation fair market value of the residue.

However, in the present case the court of appeals interpreted Hilliard to say that the matter of compensation was determined by a jury, not by the trial court. It also referenced the decision in Wray v. Stvartak, holding that "it is well settled that a qualified witness must give his opinion as to the value of the entire property before the taking and as to the value of the remainder of the property after the taking." As such, the court found that the owners' cited authority did not establish the requirement of a before and after appraisal prior to the filing of a petition for appropriation. Therefore, the court of appeals ruled that the trial court had properly overruled the property owners' motions for judgment on the pleadings.

by Scott B. Mueller, JD

Maumee Watershed Conservancy Dist. v. Buescher, and Putnam Soil and Water Conservation

Maumee Watershed Conservancy Dist. v. T & A Properties, and Putnam Soil and Water Conservation

Court of Appeals of Ohio

Third District

December 18, 2017

2017 WL 6450826
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Title Annotation:Recent Court Decisions on Real Estate and Valuation
Author:Mueller, Scott B.
Publication:Appraisal Journal
Geographic Code:1U3OH
Date:Mar 22, 2018
Words:693
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