In the case of Belmont Cty. v. Barack, 2022-Ohio-1452, the Appellate Court held that the appropriation of a small acreage of a landowner’s land was necessary for a new sewage pump station where the county followed all of the requisite procedures under R.C. Chapter 163 and the landowners waived their right to an immediate necessity hearing and then failed to raise certain issues at that hearing.
Here, the county attempted to appropriate a small acreage of land from the landowner, but the landowners refused to engage in negotiations, so the county passed a resolution to appropriate the property for public use and filed a complaint for appropriation with the court. The trial court found that the appropriation was necessary. The landowners argued that the trial court violated their procedural due process rights by failing to reasonably schedule and conduct the necessity hearing, the trial court erred by failing to hold the necessity hearing within the timeframe prescribed by law, and the county attempted to appropriate more real property than legally necessary. The appellate court disagreed with the landowners.
In support of its decision, the appellate court explained that the county followed the requisite procedures for appropriating property under R.C. Chapter 163, and then filed a complaint seeking appropriation from the court to which the landowners answered. The appellate court further explained that R.C. 163.09 states that once an answer is filed that raises specific facts supporting the denial of the necessity of the appropriation, the court has a duty to set a hearing within five to fifteen days of the filing of the answer. However, the appellate court found that the landowners did not pursue their right to a necessity hearing and instead proceeded with discovery requests, thereby waiving their right to an immediate necessity hearing and waiving their right to appeal the issue of a timely necessity hearing. The appellate court also found that the landowners failed to raise the issue of encroachment and other interference of property rights during the necessity hearing and thus it was improper to raise on appeal for the first time.
To read this case, click here.
Authors: Matthew John Markling and the McGown & Markling Team.
Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.