Opposition Brief — Village of Chagrin Falls v. Kruse

Supreme Court, U.

ee ee ae ae

.

oe) JUN 21 1996

No. 95-1971 CLERK

In The

Supreme Court of the United States

October Term, 1995

&

VILLAGE OF CHAGRIN FALLS, OHIO,

Petitioner,

Vs.

RONALD W. KRUSE,

SYLVIA A. KRUSE,

Respondents.

+

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

+

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

a

Eur MANos

(Counsel of Record)

MICHAEL T. GAVIN

ANTHONY J. COYNE

Mansour, GAVIN, GERLACK &

Manos Co., L.P.A.

55 Public Square — Suite 2150

Cleveland, Ohio 44113

(216) 523-1500

Davip R. JONEs

5 South Franklin Street

Chagrin Falls, Ohio 44022

(216) 247-2380

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

as

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7. ee EEEEEEEEEEEEEeeEeeEeeeeEeEeEeEeEeEeEEEEEeeey—E——E—eEE

QUESTIONS PRESENTED FOR REVIEW

Does the seizure of private property and its conver-

sion to a public road by a municipal corporation without

warning, notice or payment of compensation to the

owners offend the substantive and procedural guarantees

vested in citizens of the United States by the Due Process

Clause of the Fourteenth Amendment and the Due Pro-

cess and Takings Clauses of the Fifth Amendment to the

Constitution of the United States of America.

Has the Congress of the United States vested jurisdic-

tion in the United States courts of a case complaining that

a municipal corporation has taken private property and

devoted it to its own use without notice or securing

compensation, albeit a remedy is available to the com-

plainant through the common law of the state to charge

the municipal corporation with violating the Constitution

of the United States and of the state and to compel it to

institute proceedings to appropriate the seized property

and pay compensation therefor.

Does a municipal corporation deprive a citizen of

rights guaranteed by the Due Process Clause of the Four-

teenth Amendment to the United States Constitution by

failing to observe procedures enacted by the General

Assembly of the State of Ohio requiring notice, negotia-

tion and other conduct with respect to an owner of pri-

vate property prior to taking such property.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........... i

TABLE OF AUTHORITIES ......ccccccesscescsveess iii

CONSTITUTIONAL PROVISIONS..............045. 1

STATUTES ENACTED BY THE GENERAL ASSEM-

BLY OF THE STATE OF OHIO .......-ecsceveess l

STATEMENT OF THE CASE........-ccecescvcccess 2

ARGUMENT oo icccctavcevctdss) tavedetones chesiees 4

COINCTUIGION onc vccdecscdentctseerepas ter tevasens 14

APPRENDI oo occcvvcsbccavdusaceetas saevksaeaweeanes Al

Ohio Revised Code, § 163.04.........5 cece cece eeeee Al

Ohio Revised Code, § 163.06(A).........---.e-e eens A2

Ohio Revised Code, § 163.59. .......cccccecsesevcees A3

Ohio Revised Code, § 719.04. .........cecccccceveces A6

Ohio Revised Code, § 719.05. ......cccccccccvsecvens A7

ili

TABLE OF AUTHORITIES

Page

CASES

Blanchette v. Connecticut General Insurance Corpora-

tions, 419 U.S. 102 (1974) ...... cee eee eee eeeeeeees 11

Budinich v. Becton Dickinson and Company, 486 U.S.

196 CIGOB) o.oo cc eccc cw ssetsccccvecccccvecncvccves §

Chicago, Burlington & Quincy Railroad Company v.

Chicago, 166 U.S. 226 0 errr err reer ee 7

Cleveland Board of Education v. Laudermill, 470 U.S.

G32 (1985)... ccc ccccccccccccccsevccccccvveccesess 13

Dodd v. Hood River County, 59 F.3d 852 (CA9 1995)....11

First English Evangelical Lutheran Church of Glendale

v. County of Los Angeles, California, 482 U.S. 304

(1987) . 0 cc cccccccccccvecccccserecesceeseesesesecess 6

Hurley v. Kincaid, 285 US. DS CIGSR)... cv cccvedevccess 11

In re Appropriation of Easement for Hwy. Purposes,

175 Ohio St. 107 (1963) ......--- eee eee reece ences 5

Kaiser Aetna v. United States, 444 U.S. 164 (1979)...... 7

Kruse v. Village of Chagrin Falls, Ohio, 74 F.3d 694

(1996) 0 cc ccccccccccccccvsccccccersccescescccseees 2

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419 (1982) ...... cece cccccerececcccecccrereress 7

Lucas v. South Carolina Coastal Council, 112 S.Ct.

2BB6 (1992)... .. cere cece eccer ee eeeeseeererees NTPs

Lynch v. Household Finance Corporation, 405 U.S.

S38 (1972)... cece cece ce reece eecesereeereecees ae

McNeese v. Board of Education for Community Unit

School District 187, Cahokia, Illinois, 373 U.S. 668

|. eer nrerrre TUTTE er i e 7

iv

TABLE OF AUTHORITIES - Continued

Page

Monell v. New York City Dept. of Social Services, 436

US. 666 C197 cs ccciccccassctedsseverstancdeaverss 7

Monroe v. Pape, 365 U.S. 167 (1961)..........-- 0 eee ees 6

Moore v. City of East Cleveland, Ohio, 431 U.S. 494

CIOTTS ae vinbns cis seWec tus ehdavie cer iuntieausrséoass 12

Nectow v. Cambridge, 277 U.S. 172 (1928) ............ 10

Parratt v. Taylor, 451 U.S. 527 (1981).............-6.. 10

Poe vo. Uliman, 367 US. G7 (ISSR). «0 cc ccccvccccccees 12

Regional Rail Reorganization Act Cases, 419 U.S. 102

EROIED 5 Nk ca eRiceiewenUebacseundbpabosesetasvet es 11

Rochin v. California, 342 U.S. 165 (1952).............. 12

Ruckelshaus v. Monsanto Company, 467 U.S. 986

CR as kwh vkesebussd sre Wnewaene wi nnegesaseen tees 11

State ex rel. Bruestle v. Rich, 159 Ohio St. 13 (1953)..... 4

State ex rel. Keville v. Faurot, 126 Ohio St. 646 (1933) ..... 5

State ex rel. Levin v. Sheffield Lake, 70 Ohio St. 3d

BOG CI a icccccocactonsedcctcddakisareraknsd co) 4,5

State ex rel. McKay v. Kauer, 156 Ohio St. 347 (1951) ..... 5

State ex rel. Moyer v. Baldwin, 77 Ohio St. 532 (1908) ..... 6

State ex rel. Town & Suburb Development Co. v.

RGaeey, TF GO Be. FE CIP GE cv dcceecvdcontccesscs 5

Superior Uptown, Inc. v. Cleveland, 39 Ohio St. 2d 36

OO OEE EE DEE TIP RE FA 3

eee

iii

TABLE OF AUTHORITIES —- Continued

Page

Villager Pond, Inc. v. Town of Darien, 56 F.3d 375

8 ery Pe rr ee Pd oo re eee 6

Williamson County Regional Planning Commission v.

Hamilton Bank of Johnson City, 473 U.S. 172

i POR ee eer ye Pere ee fe Mes PR

Wilson v. Cincinnati, 172 Ohio St. 303 (1961).......... 5

Wright v. City of Roanoke Redevelopment and Hous-

ing Authority, 479 U.S. 418 (1987) .............000e. 7

Yee v. City of Escondido, California, 112 S.Ct. 1522

CORE 6c Chi Sa ia’ daeReiw ok ss cider echode tele raxerdees 7

Zinermon v. Burch, 494 U.S. 113 (1990)............. 4, 10

RULES AND STATUTES

Charter of the Village of Chagrin Falls, Article II,

Se FD os asus ended eereeus vant tasus petiverinces 13

Fifth Amendment to the United States Constitu-

GOR cc vctcavesccvvversvdcesappavedeouauservess passim

Fourteenth Amendment to the United States Con-

COR 6 ic a btn esos eee seeee shea ckwinve teteeus passim

Home Rule Amendment to the Ohio Constitution,

Bee Tae NL Gar caccvecosrersasvebioneesces 8

Ohio Constitution, Article I Section 19............... 8

Ohio Revised Code, § 163.04............:0-eeeeeee. i. i3

Ohio Revised Code, § 163.06(A)..........-..-.44-. 1, 13

Ohio Revised Code, § 163.59...........cececeecess 1, 13

Ohio Revised Code, § 719.04..........2-0ceeeeeees cae

Ohio Revised Code, § 719.05.........c.ccecceccee 1, i2

vi

TABLE OF AUTHORITIES - Continued

Page

[ExTs

2 Story Const. § 1956 ........... eeteedasaveawure ee

Letwin, The Economic Policy of the Constitution,

reprinted in Paul & Dickman, Liberty, Property

and the Foundations of the American Constitution

(State University of New York Press 1989)........ 12

CONSTITUTIONAL PROVISIONS

Fifth Amendment to the United States Constitution

No person shall be . . . , nor be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public

use, without just compensation.

Fourteenth Amendment to the United States Constitu-

tion

SECTION 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. . . . nor shall any

State deprive any person of life, liberty, or prop-

erty, without due process of law, .. .

+

STATUTES ENACTED BY THE GENERAL

ASSEMBLY OF THE STATE OF OHIO

Ohio Revised Code, § 163.04

Ohio Revised Code, § 163.06

Ohio Revised Code, § 163.59

Ohio Revised Code, § 719.04

Ohio Revised Code, § 719.05

a

STATEMENT OF THE CASE

Judge Batchelder vividly depicted the events precipi-

tating this case at 74 F.3d 695!, as follows:

One afternoon in June of 1986, the Kruse family

of Chagrin Falls returned home to discover, to

their intense amazement and dismay, that their

backyard was missing. The back of their prop-

erty had been laid waste, and the family’s house

was hanging at the edge of a precipice where

their lawn, trees and other landscaping had

been when they left home that morning. Agents

of the Village had been busily at work that day,

devastating the Kruses’ yard and carting off

tons of soil excavated from the property, as well

as the family’s trees, bushes, and other plant-

ings.

The excavated land was, long ago, part of Old

State Street; however, the Village had formally

vacated the street in the mid-1800’s. The vacated

street was disused, and the Village had permit-

ted building on the property. When the Kruses

protested the destruction of their property, the

Village authorities responded that they pre-

sumed that the Village owned the vacated street

(even though it had granted a building permit to

the Kruses’ predecessors in title to build an

extension on what had been the street, and even

though the Village was aware of the Kruses’

occupancy). The Village had determined to com-

mence a little roadwork across the Kruses’ back-

yard but had not given the owners any notice of

its plan to consume their yard as part of a street

widening program.

1 Kryse v. Village of Chagrin Falls, Ohio, 74 F.3d 694 (1996).

The Village? insisted that it and not the Kruses owned the

land and denied the Kruses’ request for redress. The

Kruses brought an action in the Court of Common Pleas

of Cuyahoga County, Ohio, demanding that title to the

land be quieted in their name, that the taking be enjoined,

and that they be awarded damages. That court granted

summary judgment to the Kruses quieting title to the

land in their name and overruled the Village’s motion for

summary judgment on the issue of damages. The street

widening having been completed, the request for injunc-

tion had become moot. The Village appealed to the Court

of Appeals of Cuyahoga County, Ohio, which in an unre-

ported opinion affirmed the grant of summary judgment

quieting title to the land in the Kruses but reversed the

denial of summary judgment to the Village on the issue of

damages, and rendered judgment for the Village on that

issue by reason of sovereign immunity. The decision

overruling the damage claim is consistent with the latest

pronouncement of the Ohio Supreme Court on the ques-

tion, in which it held an action for damages may not be

maintained against a municipality by reason of uncon-

stitutional restrictions on the use of property. Superior

Uptown, Inc. v. Cleveland, 39 Ohio St. 2d 36 (1974). The

Village appealed to the Ohio Supreme Court, which

declined jurisdiction.

In spite of the Kruses’ continuing requests, the Vil-

lage declined to appropriate the property, and so the

Kruses brought this action in the United States District

Court for the Northern District of Ohio, alleging depriva-

tion of property without due process on both substantive

2 Petitioner is referred to as the Village or Chagrin Falls.

and procedural grounds, and a taking without compensa-

tion. The district court dismissed the Kruses’ complaint,

asserting that they must first exhaust the procedures

available under state law. The Sixth Circuit reversed,

holding that the district court was vested with jurisdic-

tion over this matter, a taking of private property for a

public purpose through physical occupation without the

payment of compensation.

ARGUMENT

Ten years have elapsed since the Kruses were dispos-

sessed of their land by the Village. That this case evinces

deprivation of property without due process is incon-

trovertible. The Village has ignored the Kruses’ due pro-

cess claim and has focused on the Takings Clause of the

Fifth Amendment. It asks this Court to accept jurisdiction

so as to find that its action in seizing the Kruse property

does not offend the Takings Clause in spite of the lapse of

ten years without payment.

Without acknowledging that payment is due, it

argues that payment is not required until compelled by

state judicial process (Petition, p. 11). It directs this Court

to the case of State ex rel. Levin v. Sheffield Lake, 70 Ohio St.

3d 104 (1994), suggesting that in that case the Ohio

Supreme Court held that inverse condemnation pro-

cedures are available in Ohio (Petition, p. 10) through

mandamus (Petition, p. 7), which it refers to as “Ohio’s

statutory scheme for seeking compensation” (Petition, p.

9). In State ex rel. Levin v. Sheffield Lake, the court reviewed

a mandamus action brought to compel the trial court

before which an earlier action was pending to issue a writ

of mandamus directing appropriation. The Ohio Supreme

Court held that mandamus was an appropriate remedy to

compel appropriation. Doing so, it made an exception to

its established doctrine that mandamus may not be uti-

lized to compel legislative action. State ex rel. Town &

Suburb Development Co. v. Maser, 172 Ohio St. 505 (1961);

State ex rel. Keville v. Faurot, 126 Ohio St. 646 (1933). The

Ohio Supreme Court cited to support its holding that the

remedy of mandamus is appropriate to compel appro-

priation State ex rel. McKay v. Kauer, 156 Ohio St. 347

(1951); Wilson v. Cincinnati, 172 Ohio St. 303 (1961); In re

Appropriation of Easement for Hwy. Purposes, 175 Ohio St.

107 (1963). These cases concerned administrative action

by the director of highways, not legislative action.

Nowhere in the opinion in State ex rel. Levin v. Sheffield

Lake does the court mention the phrase “inverse condem-

nation,” nor does it review the adequacy of the remedy

for the purpose of the Takings Clause; and, since the

initial mandamus action filed in that case had been pend-

ing for ten years, it certainly did not find the remedy

adequate.

The Village asserts that the Sixth Circuit in this case

should have deferred to the decision of the Ohio Supreme

Court in State ex rel. Levin v. Sheffield Lake, but that court

made no finding on the federal question of the adequacy

of mandamus as a remedy for purposes of the Takings

Clause. Moreover, even in diversity cases, resolution of

federal issues is vested in the courts of the United States.

Budinich v. Becton Dickinson and Company, 486 U.S. 196,

198 (1988).

Mandamus is not a statutory scheme, but rather a

common law remedy dating from the thirteenth century.

State ex rel. Moyer v. Baldwin, 77 Ohio St. 532, 537-538

(1908). The Village also argues that an inverse condemna-

tion action is available in Ohio, and presumably in every

state in the union, by reason of this Court’s decision in

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, California, 482 U.S. 304 (1987), that

an inverse condemnation action may be brought by rea-

son of the self-executing characteristics of the Fifth

Amendment. Citing language of the court in Villager

Pond, inc. ». Town of Darien, 56 F.3d 375, 380 (CA2 1995),

the Village argues that an additional source for an Ohio

remedy is available through Article I Section 19 of the

Ohio Constitution, which it contends provides a self-

executing remedy in inverse condemnation. Every state

constitution, of course, has provisions similar to Section

19 of the Ohio Bill of Rights (Article I), mandamus is

available in every jurisdiction in this country and, of

course, this Court’s decision in First English Evangelical

Lutheran Church controls the proceedings in all of the

states. The Village is requesting this Court to take juris-

diction on this case in the expectation that it will divest

the federal courts of jurisdiction in~-all cases claiming

substantive deprivation of property without due process

in defiance of the Takings Clause and the Due Process

Clause.

Congress, however, has explicitly vested jurisdiction

in the courts of the United States to redress tortious

violation under the color of state law of rights guaranteed

to the citizens of the United States by the Constitution,

irrespective of the availability of a remedy under state

law, and without requiring that state remedies be pur-

sued prior to the invocation of the federal remedy. Monroe

v. Pape, 365 U.S. 167 (1961), overruled in part on the

unrelated issue of municipal liability in Monell v. New

York City Dept. of Social Services, 436 U.S. 664 (1978);

Zinermon v. Burch, 494 U.S. 113 (1990); Wright v. City of

Roanoke Redevelopment and Housing Authority, 479 US.

418, 427 (1987); Lynch v. Household Finance Corporation, 405

U.S. 538 (1972); McNeese v. Board of Education for Commu-

nity Unit School District 187, Cahokia, Illinois, 373 U.S. 668

(1963).

The Village attempts to avoid the consequence of

these cases by twisting the “ripeness” concept enunciated

by this Court in Williamson County Regional Planning Com-

mission v. Hamilton Bank of Johnson City, 473 U.S. 172

(1985), relating to regulatory takings. It cannot seriously

be advanced that the Kruses’ claim of constitutional tort

is not ripe. The Village has seized the land, widened the

street and, although ten years have elapsed, has not paid

compensation. This is not a case, as in Williamson County,

in which this Court reviewed the effect of the land use

regulation upon property, but rather a phys.cal occupa-

tion and seizure of property and its application to public

use, and so incontrovertibly a taking for which the Con-

stitution requires compensation. Yee v. City of Escondido,

California, 112 S.Ct. 1522 (1992); Lucas v. South Carolina

Coastal Council, 112 S.Ct. 2886 (1992); Loretto v. Telepromp-

ter Manhattan CATV Corp., 458 U.S. 419 (1982); Kaiser

Aetna v. United States, 444 U.S. 164 (1979).

In Chicago, Burlington & Quincy Railroad Company v.

Chicago, 166 U.S. 226 (1897), this Court, relying upon

Justice Story at 2 Story Const. § 1956, held, “that the

power to appropriate was subject to the restriction,

among others, that it must not be exercised without mak-

ing due compensation for whatever is taken, says: ‘Due

process of law requires, first, the legislative act authoriz-

ing the appropriation, pointing out how it may be made

and how the compensation shall be assessed, ...‘” In

substituting judicial redress for legislative action, the Vil-

lage has blurred the constitutional compact establishing

separation of powers. The Takings Clause contemplates

legislative action to provide the procedure for compensa-

tion. The requirement is not satisfied by judicial admon-

ishments rectifying unconstitutional omissions.

The responsible authority is the Council of the Vil-

lage, but it has neither authorized the appropriation of

the Kruse property nor has it appropriated money to pay

for it. That payment is available may not be assumed. The

frontiersmen who drafted the Ohio Constitution did not

have faith in the credit of government. In Section 19 of

the Bill of Rights (Article I), they required payment to be

made prior to the possession and transfer of title of

property appropriated to a public use, providing excep-

tions for times of war, public exigency or the construction

of roads, in which event a deposit in court is required of

an amount equivalent to the fair market value of the

property being taken. The clause in Section 19 providing

for payment states, “where private property shall be

taken for public use, a compensation therefor shall first

be made in money, or first secured by a deposit of

”

money; ....

The risk that the Kruses will not be paid is magnified

by the fact that the credit of the state is not behind the

Village. Under Ohio law, Chagrin Falls has the status of a

city state with respect to the exercise of its power of

eminent domain. The Home Rule Amendment to the Ohio

Constitution, Article XVIII Section 3, vests a municipality

with all powers of local self government, including the

power to acquire property by appropriation or otherwise.

State ex rel. Bruestle v. Rich, 159 Ohio St. 13 (1953). The

state legislature is bereft of authority to intervene. The

court held at 159 Ohio St. 32, “[T]here is no provision of

the Ohio Constitution which authorizes the interference

by general laws with the exercise by a municipality of its

power of eminent domain. . =

The Ohio legislature has provided no remedy to the

Kruses. It is without authority to provide a remedy. The

General Assembly has not provided for compensation

from its own coffers to persons like the Kruses whose

property has been seized by a subdivision of the state,

nor can it compel a municipality to pay for what it has

taken. The decision of the Sixth Circuit in this case that

Ohio has not provided a remedy through inverse con-

demnation for the taking of private property by the pub-

lic is manifestly correct and is not likely to be disturbed

by this Court. The obligation to obey the Due Process

Clause and the Takings Clause as well as the Ohio Consti-

tution is with the Village. Its failure constitutes a viola-

tion of constitutional guarantees made to the Kruses, to

whom Congress has provided a remedy through enact-

ment of the Civil Rights Act.

The Village attempts to avoid the multiple holdings

of this Court that the jurisdiction of the federal courts in

civil rights actions is not dependent upon exhaustion of

state remedies through misemployment of the concept of

“ripeness” enunciated by this Court in Williamson County,

in which it held that the action brought pursuant to the

10

Civil Rights Act by a developer of a subdivision in Ten-

nessee claiming a taking of its property through confisca-

tory land use regulations was premature and not ripe for

adjudication by the federal courts either pursuant to the

Due Process Clause or the Takings Clause, in that a final |

administrative decision had not been made by the Wil-

liamson County Board of Zoning Appeals, which had not

been asked to consider certain variances available to the

developer. Drawing upon its holding in Parratt v. Taylor,

451 U.S. 527 (1981), this Court went on to state that the

Taking claim would not be ripe for adjudication until the

owner had exhausted state procedures for obtaining com-

pensation and been denied. The broad language of this

Court is appropriate to regulatory takings, but not to the

surprise physical invasion and expropriation of private

property by government without provision for compensa-

tion. In Parratt, this Court held that an adequate post-

deprivation remedy satisfied the Due Process Clause

under facts where a pre-deprivation hearing was not

feasible because the loss occurred through random and

unauthorized acts of a state agent.

A pre-deprivation hearing is obviously impracticable

in assessing the effect of a land use regulation upon

property. The restrictions are imposed to operate uni-

formly throughout a zoning district. It may be that when

applied to a piece of property, a restriction may be found

arbitrary, capricious and unreasonable without advancing

a legitimate governmental interest. Nectow v. Cambridge,

277 U.S. 172 (1928). It is readily apparent, however, that

investigation regarding all the properties that might be

affected by a regulation prior to its going into effect is

impracticable and of doubtful benefit. Therefore, the only

11

practical remedy is through a post-deprivation proceed-

ing. To support its position in Williamson County, this

Court cited precedents involving problematic takings

which held that compensation was assured through the

credit of the United States, which was incorporated into

the legislation authorizing the potential taking, if not

explicitly, at least by implication. Ruckelshaus v. Monsanto

Company, 467 U.S. 986 (1984) (possible loss of trade

secrets); Blanchette v. Connecticut General Insurance Corpo-

rations, 419 U.S. 102 (1974) (possible erosion of assets);

Hurley v. Kincaid, 285 U.S. 95 (1932) (possible flooding);

Regional Rail Reorganization Act Cases, 419 U.S. 102 (1974)

(possible erosion of assets).

The taking of the Kruse property was not problem-

atic, but definite. Compensation was neither made nor

secured. The deprivation occurred with the seizure. After

ten years, it is highly unlikely that this Court will decide

that due process is not culminated until state judicial

remedies are exhausted. Williamson County does not lead

to this absurd result. Concerned about the res judicata

implications of this Court’s holding in Williamson County,

the court noted in Dodd v. Hood River County, 59 F.3d 852

(CA9 1995), at page 860:

Reduced to its essence, to hold that a taking

plaintiff must first present a Fifth Amendment

claim to the state court system as a condition

precedent to seeking relief in a federal court

would be to deny a federal forum to every tak-

ings claimant. We are satisfied that Williamson

County may not be interpreted to command such

a revolutionary concept and draconian result.

The Village attempts to provide a Parrattic element to this

case by describing the taking as accidental (Petition, p. 8).

———e

12

The facts belie accident. The Village knew that the Kruses

occupied the property; that the knoll upon which it was

situated supported the residence; had even granted a

building permit to extend the house onto vacated State

Street; and yet without warning, deliberately directed its

contractor to level the hillside and to cut down the trees,

bushes and other vegetation on the property. The concept

of ripeness is inapplicable to this case. The facts are

known; there is nothing more to be learned. Unlike the

situation in Williamson County, there is no question that

the Kruses have suffered a taking and are entitled to

compensation. They are also entitled to invoke the juris-

diction of the federal courts to obtain redress.

The Petition ignores the due process claims of the

Kruses. The expropriation of their land without warning

offends the scope of liberties guaranteed by the Due

Process Clause. Moore v. City of East Cleveland, Ohio, 431

U.S. 494, 502 (1977), adopting Justice Harlan’s dissent in

Poe v. Ullman, 367 U.S. 497 (1961), at 542-543. It consti-

tutes official conduct which “shocks the conscience”

Rochin v. California, 342 U.S. 165, 172 (1952).

The Kruses also asserted a procedural due process

deprivation by reason of the failure of the Village to

follow the process prescribed by Ohio law for the appro-

priation of property. The Due Process Clause originates

from Chapter 39 of the Magna Carta, in which King John

agreed not to dispossess any free man except “by the law

of the land.” Letwin, The Economic Policy of the Constitu-

tion, reprinted in Paul & Dickman, Liberty, Property and the

Foundations of the American Constitution (State University

of New York Press 1989). The guarantees of the Due

Process Clause entitled the Kruses to be notified of the

2 ee

13

imminent taking of their property and to be granted the

opportunity to be heard prior to the taking. Cleveland

Board of Education v. Laudermill, 470 U.S. 532, 542 (1985). It

also vests the entitlement to the Kruses that the pro-

| cedures established by state law be followed. Zinermon v.

Burch, supra. Section 719.04 of the Ohio Revised Code®

| required that the Council of the Village pass a resolution

| declaring the intent to appropriate the Kruses’ property

for road purposes. Section 719.05 provides that the reso-

| lution of intent be served prior to the enactment of an

ordinance authorizing the appropriation. The Charter of

| the Village at Section 2 of Article II incorporates the "4

| general laws of the state of Ohio when not inconsistent

, with the Ordinances. of the Village. Section 163.59

requires the Village to procure an appraisal of the prop-

erty from an independent fee appraiser and to offer an

) amount not less than the appraisal. Further, it prohibits

the taking of possession of the property until an agreed

price is paid or the amount of the appraisal is deposited

in court. Section 163.04 requires negotiation with the

owner. Section 163.06(A) implements the constitutional

requirement that prior to taking possession, the

appraised value of the property be deposited in court.

The Village has ignored the law of the land in its

dealing with the Kruses. The decision of the Sixth Circuit

in this case should be affirmed and the district court

directed to conclude this matter and provide the Kruses

3 References are to Ohio Rev. Code Ann. (Anderson 1991)

and Ohio Rev. Code Ann. (Baldwin 1994).

14

with the compensation that they should have been paid

ten years ago.

CONCLUSION

The claim of conflict raised by the Village between

the decision of the Sixth Circuit in this case and the

decisions in the cases cited in the Second, Seventh, Ninth

and Eleventh Circuits is illusory (Petition, p. 5). All of

those cases involved the application of land use regula-

tions to the properties concerned and not physical expro-

priation of property for a public purpose. None held that .

the common law writ of mandamus constitutes an ade-

quate inverse condemnation remedy to be exhausted

prior to asserting the federal claim. None held that physi-

cal seizure of property for a public purpose did not

constitute a deprivation or a taking without compensa-

tion absent pursuit of the state court remedies.

The Village urges this Court to accept jurisdiction so

that it may impose upon the Constitution the procedural

niceties heretofore applied by the Court in consideration

of regulatory takings to takings physically occupying

ee

ae

15

property. Such a holding would offend traditional values

of this republic. The Petition should be denied.

Respectfully submitted,

Eur MANos

(Counsel of Record)

MicHaet T. GAvVIN

ANTHONY J. Coyne

Mansour, GAVIN, GERLACK &

Manos Co., L.P.A.

55 Public Square — Suite 2150

Cleveland, Ohio 44113

(216) 523-1500

Davip R. JONEs

5 South Franklin Street

Chagrin Falls, Ohio 44022

(216) 247-2380

Attorneys for Respondents

Al

§ 163.04 Appropriation.

Appropriations shall be made only after the agency is

unable to agree, for any reason, with the owner, or if

more than one, any owner, or his guardian or trustee, or

when any owner is incapable of contracting in person or

by agent and has no guardian or trustee, or is unknown,

or is not a resident of this state, or his residence is

unknown to the agency and cannot with reasonable dili-

gence be ascertained.

A2

§ 163.06 Deposit with court; appraisal of structures.

(A) A public agency, other than an agency appro-

priating property for the purposes described in division

(B) of this section, which qualifies pursuant to Section 19

of Article I, Ohio Constitution, may deposit with the

court at the time of filing the petition the value of such

property appropriated together with the damages, if any,

to the residue, as determined by the public agency, and

thereupon take possession of and enter upon the property

appropriated. The right of possession upon deposit as

provided in this division shall not extend to structures.

* * *

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De ene I

sane PU hale es A? a Dt a in lt Bd Reba te

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A3

§ 163.59 Land acquisition policies.

In order to encourage anu expedite the acquisition of

real property by agreements with owners, to avoid litiga-

tion and relieve congestion in the courts, to assure consis-

tent treatment for owners in the many state and federally

assisted programs, and to promote public confidence in

public land acquisition practices, heads of acquiring

agencies shall, to the greatest extent practicable, be

guided by the following policies:

(A) The head of an acquiring agency shall make

every reasonable effort to acquire expeditiously real

property by negotiation.

(B) Real property shall be appraised before the ini-

tiation of negotiations, and the owner or his designated

representative shall be given an opportunity to accom-

pany the appraiser during his inspection of the property,

except that the head of the lead agency may prescribe a

procedure to waive the appraisal in cases involving the

acquisition by sale or donation of property with a low fair

market value. As used in this section, “appraisal” means

a written statement independently and impartially pre-

pared by a qualified appraiser setting forth an opinion of

defined value of an adequately described property as of a

specified date, supported by the presentation and anal-

ysis of relevant market information.

(C) Before the initiation of negotiations for real

property, the head of the acquiring agency concerned

shall establish an amount which he believes to be just

compensation therefor and shall make a prompt offer to

acquire the property for the full amount so established. In

no event shall such amount be less than the agency’s

A4

approved appraisal of the fair market value of such prop-

erty. Any decrease or increase in the fair market value of

real property prior to the date of valuation caused by the

public improvement for which such property is acquired,

or by the likelihood that the property would be acquired

for such improvement, other than that due to physical

deterioration within the reasonable control of the owner,

will be disregarded in determining the compensation for

the property. The head of the acquiring agency concerned

shall provide the owner of real property to be acquired

with a written statement of, and summary of the basis for,

the amount he established as just compensation. Where

appropriate the just compensation for the real property

acquired and for damages to remaining real property

shall be separately stated.

(D) No owner shall be required to surrender posses-

sion of real property before the acquiring agency con-

cerned pays the agreed purchase price, or deposits with

the court for the benefit of the owner, an amount not less

than the agency’s approved appraisal of the fair market

value of such property, or the amount of the award of

compensation in the condemnation proceeding for such

property.

(E) The construction or development of a public

improvement shall be so scheduled that no person law-

fully occupying real property shall be required to move

from a dwelling, or to move his business or farm opera-

tion, without at least ninety days’ written notice from the

head of the acquiring agency concerned, of the date by

which such move is required.

AS

(F) If the head of an acquiring agency permits an

owner or tenant to occupy the real property acquired on a

rental basis for a short term or for a period subject to

termination on short notice, the amount of rent required

shall not exceed the fair rental value of the property to a

short-term occupier.

(G) In no event shall the head of an acquiring

agency either advance the time of condemnation, or defer

negotiations or condemnation and the deposit of funds in

court for the use of the owner, or take any other action

coercive in nature, in order to compel an agreement on

the price to be paid for the property.

(H) If any interest in real property is to be acquired

by exercise of the power of eminent domain, the head of

the acquiring agency concerned shall institute formal

condemnation proceedings. No acquiring agency head

shall intentionally make it necessary for an owner to

institute legal proceedings to prove the fact of the taking

of his real property.

(I) If the acquisition of only part of a property

would leave its owner with an uneconomic remnant, the

head of the acquiring agency concerned shall offer to

acquire that remnant. For the purposes of this division,

an uneconomic remnant is a parcel of real property in

which the owner is left with an interest after the partial

acquisition of the owner’s property and which the head

of the agency concerned has determined has little or no

value or utility to the owner.

A6é

§ 719.04 Resolution declaring intent to appropriate.

The legislative authority of a municipal corporation

shall, whenever it is deemed necessary to appropriate

property, pass a resolution declaring such intent, defining

the purpose of the appropriation, and setting forth a

pertinent description of the land and the estate or interest

therein desired to be appropriated.

nes i en lh I lB

A7

§ 719.05 Proceedings on passage of appropriation reso-

lution.

The mayor of a municipal corporation shall, imme-

diately upon the passage of a resolution under section

719.04 of the Revised Code, declaring an intent to appro-

priate property, for which but one reading is necessary,

cause written notice to be given to the owner of, persori

in possession of, or person having an interest of record in,

every piece of property sought to be appropriated, or to

his authorized agent. Such notice shall be served by a

person designated for the purpose and return made in

the manner provided for the service and return of sum-

mons in civil actions. If such owner, person, or agent

cannot be found, notice shall be given by publication

once a week for three consecutive weeks in a newspaper

of general circulation in the municipal corporation, and

the legislative authority may thereupon pass an ordi-

nance by a two-thirds vote of all members elected thereto,

directing such appropriation to proceed.