Roetzel eminent domain attorneys Stephen D. Jones and Jeremy S. Young recently obtained the dismissal of an eminent domain action filed against Speedway LLC by the Ohio Department of Transportation (ODOT). This case of first impression promises to have far-reaching implications for businesses affected by highway improvement projects.

The case involved a profitable Speedway store in Sandusky, Erie County, Ohio. As part of an access management project, ODOT proposed to close one of the store’s two drives by installing a curb, a step that had the potential to shutter the store. ODOT also proposed to exercise “quick take” authority, which is the extraordinary option to proceed with construction before the eminent domain case is concluded. Roetzel challenged the exercise of “quick take” authority, as well as the necessity for the appropriation itself.

Significantly, Ohio law generally prohibits a property owner from challenging the exercise of “quick take” authority or necessity in a highway improvement project. Article I, Section 19 of the Ohio Constitution and Ohio Revised Code 163.06 permit an appropriating authority to exercise “quick take” authority when an appropriation is for the “making” or “repairing” of roads, terms that are not statutorily defined. Additionally, Ohio Revised Code 163.08 prevents a property owner from challenging the necessity of an appropriation that is for the making or repairing of roads.

A necessity hearing was held, at which Roetzel presented expert engineering testimony regarding the impact the closure of the drive would have on operations at the store, as well as the availability of alternative design options that would not require the closure of the drive. Roetzel also argued that the general prohibition against challenges to the exercise of “quick take” authority and necessity did not apply because the appropriation involved only limitation of access, and not the making or repairing of a road.

The trial court ultimately entered judgment in favor of Speedway, ruling that the closure of Speedway’s drive did not constitute the making or repairing of roads, such that ODOT could not exercise “quick take” authority and Speedway could challenge necessity. The court further held that there was no necessity for the appropriation, such that ODOT could not proceed with the taking at all. Accordingly, the Court dismissed the eminent domain action and ordered ODOT to pay Speedway’s substantial legal and expert expenses pursuant to R.C. 163.21.

The case is one of first impression that has far-reaching implications for businesses impacted by highway improvement projects, as well as for ODOT, which has numerous similar access management projects pending across the state. It is therefore anticipated that ODOT will appeal to the Sixth District Court of Appeals and ultimately to the Ohio Supreme Court, if necessary, which means the case will likely take on even greater significance for businesses throughout the state of Ohio that are adversely impacted by similar access management takings.