i. comparison of quick take and non-quick...

I. COMPARISON OF QUICK TAKE AND NON-QUICK TAKE EMINENT DOMAIN IN OHIO

Eminent Domain Generally: Uniform Eminent Domain Act, Chapter 163 of the Ohio Revised Code.

o Chapter 163 can be characterized as a revision and consolidation of

appropriation procedures that applied to condemnations by public utilities and railroads, by local governmental units, and by the State. It provides a uniform procedure for appropriation by private and public agencies.

o Abolished 30 enabling Acts providing procedures for various political subdivisions of the State and private corporations to appropriate property.

Procedures – R.C. §§ 163.04 - .05

o An agency must inform the owner of the agency’s intent to take, at least 30 days before it files its petition for appropriation. R.C. § 163.04(A).

Notice must follow the form provided in Revised Code Section 163.041.

Notice must be delivered personally on or by certified mail to the owner or his/her representative.

o At the same time the agency informs the owner of the agency’s intent, or at least 30 days before filing its petition for appropriation, the agency must give a written good faith offer to buy the property. R.C. § 163.04(B).

o The agency cannot take the property until it appraises the property and gives a copy of the appraisal to the owner (R.C. § 163.04(C)), unless:

the owner is “incapable of contracting;”

the property is worth less than $10,000, in which case only a summary of an appraisal is necessary to be served on the owner, guardian, or trustee; or

the owner is unknown or the residence of the owner cannot be ascertained with due diligence.

o The agency and owner must first not be able to come to an agreement before the agency appropriates the property. R.C. § 163.04(D).

o The only way an agency can block traffic or harm access to the property is if it first makes “reasonable efforts” to limit the negative effects. Otherwise, the agency must pay for compensation due to damage. R.C. § 163.04(E).

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o A property owner may appeal notice of the taking in writing within 10 business days of receiving notice to the appropriating agency. R.C. § 163.041.

o If the agency and owner cannot come to an agreement, then the agency files its petition to appropriate the property in common pleas court. R.C. § 163.05.

o Either the property owner or agency may request that the determination of the property value be made through nonbinding mediation. R.C. § 163.051.

Requests for mediation must be in writing and made within 10 business days after the owner files an answer.

The court must appoint a mediator.

Mediation must be complete within 50 days after the owner files an answer, unless the judge extends time.

The agency shall pay the costs.

o Jury Trials - R.C. § 163.14

If there is a jury trial, then the jury may decide the amount awarded to the owner for the property, damage due to the taking, and other damages.

If a building or other structure is situated only partly upon property appropriated and partly upon adjoining land, and the structure cannot be divided without manifest injury, the jury must assess the value of the structure as part of the compensation.

If the jury award is 125% more than the initial offer, then the owner is entitled to attorney’s fees, costs, and expenses. R.C. § 163.21.

An owner would also be paid attorney’s fees, costs, and expenses if the judge decides the taking is not for a public use or the agency abandons the appropriation. R.C. § 163.21.

Not entitled to fees for war or other exigency, and quick takes.

o Agency required to appropriate entire parcel where partial taking results in removal of a garage and a replacement garage cannot be lawfully or practically attached, unless waived by owner. R.C.§ 163.05.

If waived, agency must appropriate only the required portion as well as the entirety of any structure that is in whole or in part on the required portion.

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o Prior law’s automatic stay was found unconstitutional in Norwood v. Horney, 110 Ohio St.3d 353, 2006 -Ohio- 3799, 853 N.E.2d 1115; now, an owner may appeal with a supercedeas bond. R.C. § 163.19.

Contesting the right to take.

o Challenge the authority of the entity asserting the power of eminent domain (i.e. school district building a highway).

o Corruption in the process.

o Technical defects in the filing. (Only temporary success.)

o Statutory restrictions. (Examples: several states [including Ohio] have adopted statutes that prohibit the government from taking land for economic development or from declaring farm land to be blighted as a pretext to taking the land by eminent domain.)

o Ordinances authorizing “urban renewal” as opposed to “road improvements”

may preclude the availability of quick take procedure. Octa v. Octa Retail, L.L.C., 12th Dist. No. CA2007-04-015, 2008-Ohio-4505.

o Other defenses include inability to agree; right to take; necessity; R.C. §

163.04 and R.C. § 163.08.

o However, R.C. § 163.08 specifically precludes owners from denying the right to make the appropriation when the take is for purposes of repairing public roads.

o Property owners generally cannot question the determination of a legislative

body that appropriation is necessary.

o Incidental effects to adjacent business owners caused by large scale urban renewal plans are not sufficient to support a takings claim. Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, 964 N.E.2d 414.

Quick-Takes: § 163.06(B)

Use: Quick takes are most often utilized for road widening projects, which generally entail appropriating portions of sidewalks, elevator grates, and buildings when necessary.

Difference: Allows the appropriating agency to take possession of land AND

structures upon filing of the petition and deposit; owner required to vacate.

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Procedures under Ohio Revised Code § 163.06(B).

o Normal prerequisites to filing petition (notice to property owner, good faith

offer to purchase, appraisals, failure to agree) still apply.

o Available only for public road improvements and implementing rail service.

o Allows the appropriating agency to determine the value of the property and damages (if any) to the residue, then;

o Deposit that amount with the court at the time the petition is filed; and

o Take possession of and enter upon the property (land and structures)

appropriated.

Other features

o The property owner is always entitled to a jury trial in Ohio. Jury trials are governed by same procedures as non-quick take proceedings under R.C. § 163.14.

o Under R.C. § 163.21, NOT entitled to attorney’s fees, etc., when the jury

award is 125% more than the initial deposit, UNLESS the land used for agricultural purposes as defined in R.C. §§ 303.01 or 519.01.

o The property owner also earns interest on the amount deposited with the court.

So if a jury returns a $200,000 verdict, and the appropriating authority deposited $100,000, the property owner is entitled to interest on the $100,000 deposit. R.C. § 163.17.

o When the agency has the right to take possession of the property before the

verdict and has paid a deposit into court, and the owner has withdrawn the entire deposit, any additional award is subject to interest at the rate set forth in R.C. § 1343.03 from the date of the taking. R.C. § 163.17.

The rate is determined by the Tax Commissioner on October 15th of

each year for the following year by specifying the federal short term interest rate and adding three (3%) percent to establish the statutory rate provided by R.C. § 1343.03.

o You are also able to conduct a jury view of the site. R.C. § 163.12.

May take place pre-construction, during, and post-completion.

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In addition to being careful in selecting a jury, practitioners must be conscious of when this takes place. Some juries tend to award less compensation when they view the site after the improvements have been implemented.

Contesting a Quick Take

o A difficult proposition – explicitly prohibited from challenging the right to

take, the inability of the parties to agree, and the necessity of the appropriation when property is taken for purpose of constructing or repairing roads. R.C. § 163.08.

o Statement in petition filed by the director of transportation of his intent to construct a state highway or interstate highway constitutes a presumption that the appropriation is for the purpose of making or repairing roads which shall be open to the public without charge. R.C. § 163.08.

o Construction plans showing the use of the property for constructing or

repairing a public road is presumptive evidence of such purpose. R.C. § 163.08.

o Owner must rebut this presumption with evidence that this is not the true

purpose of the appropriation.

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II. SIGNAGE RIGHTS Compensable Interest

It is axiomatic at this point that in Ohio, billboards are specifically recognized as a

compensable interest in property. That is, removal of a billboard as ordered by a public agency constitutes a “taking” of a

“compensable right,” including a leasehold interest, requiring “just compensation.” R.C. §§ 163.32-.33; R.C. § 5516.08.

NOTE: obligation of sign owner to remove the device at any time is not considered. R.C. §

5516.08(A). Federal Law – The Lady Bird Johnson Act & Uniform Real Property Acquisition Policies Highway Beautification Act of 1965, the Lady Bird Johnson Act (Codified as amended at 23

U.S.C. § 131, et seq.)

o Required all states to enact legislation regulating outdoor advertising on interstate highways and used federal funding as the enforcement mechanism.

o The most important part of the Act, subsection (g), requires that “[j]ust compensation

shall be paid upon the removal of any outdoor advertising . . . device lawfully erected under State law.”

o Just compensation is to be paid to both the sign owner and the owner of the specific

portion of real estate for taking the right to erect advertising devices thereon. o Ohio adopted the substance of subsection (g) in R.C. §§ 163.31 – 33 and §§ 5516.07 -

.08. See Wray v. Stvartak, 121 Ohio App.3d 462, 470-71, 700 N.E.2d 347 (6th Dist. 1997).

Uniform Relocation Assistance and Real Property Acquisitions Policies Act of 1970

(codified as amended at 42 U.S.C. § 4601, et seq.)

o 42 U.S.C. § 4652 requires compensation for “structures” to be the greater of (a) the increment value the sign contributes to the land; or (b) the fair market value of the sign itself.

o Billboards, etc. constitute “structures” under the Act. UnitedStatesv.40.00AcresofLand, 427 F. Supp 434, 440‐41 (W.D. Mo. 1976);Whitman v. State HighwayComm’n,400F.Supp.1050,1070(W.D.Mo.1975).

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R.C. §§ 163.31 – .33 & R.C. §§5516.07 - .08 “Advertising Devices” treated separately under the Revised Code

o Implements federal standards above.

o R.C. §§ 163.31 – .33 apply to the removal of advertising devices in conjunction

with the appropriation of real property.

o R.C. §§ 5516.07 - .08 apply only to the removal of advertising devices by order of the director of transportation, or a state, county, municipal, or other local zoning authority.

o R.C. § 163.31(A) defines “Advertising device” as “any legally erected and

maintained outdoor sign, display, device, figure, painting, drawing, message, placard, poster, billboard, or other contrivance designed, intended, or used to advertise or to give information in the nature of advertising, or any part of any such contrivance, the advertisement on which is visible from the traveled way of any street, road, or highway in this state.”

o R.C. § 163.31(C) defines “Just compensation” as “the payment of compensation by a public agency that orders the removal of an advertising device, in the same manner as it would for other property acquired pursuant to this chapter.” See Section I, supra.

This definition applies to proceedings under R.C. § 5516.08.

Application of the Undivided Fee Rule under R.C. §§ 163.31 – .33

o Where there are separate interests or estates, the rule operates to treat them as one

estate, i.e., the public agency is only appropriating the fee. These interests are considered in valuing the fee, but the value of the fee is not to simply be a sum of its parts, and the proceeds are then distributed to the various owners. Sowers v. Schaefer, 152 Ohio St. 65 (1949), at syllabus 2.

o This is potentially problematic because signage interests usually exist pursuant to a leasehold or similar interest.

Abrogation of the Undivided Fee Rule?

o In Boston Chamber of Commerce v. City of Boston, 217 U.S. 189, 195 (1910),

Justice Oliver Wendell Holmes stated that “the Constitution does not require a disregard of the mode of ownership, of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should

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be paid for what is taken from him. It deals with persons, not with tracts of land. And the question is, What has the owner lost? not, What has the taker gained?”

o Federal and State law concerning “structures,” and more particularly advertising devices, altered the common law concepts of valuation by recognizing these interests and effectively requiring separate valuation. R.C. § 163.60 requires compensation for “structures” to be the greater of

(a) the increment value the sign contributes to the land; or (b) the fair market value of the sign itself (i.e., the value of the signstructure prior to removal. United States v. 40.00 Acres of Land, United States v. 40.00 Acres of Land, 427 F. Supp 434, 442 (W.D. Mo. 1976).

This alone appears to remove the Undivided Fee Rule in billboard cases since it mandates a determination of the value of the sign as a separate item of property and awards compensation in that amount.

NOTE: Ohio has also removed any question whether billboards are

compensable as “structures” through enacting R.C. §§ 163.31-33. In addition, federal cases have determined that “structures, or other improvements located upon the real property” includes billboards, and that any lawful occupancy qualifies a sign owner as a “tenant.” United States v. 40.00 Acres of Land, 427 F. Supp 434, 440-41 (W.D. Mo. 1976); Whitman v. State Highway Comm’n, 400 F. Supp. 1050, 1070 (W.D. Mo. 1975).

o Arguably, “just compensation” cannot be achieved generally if the property interests (i.e., the fee simple and the billboard) are valued as one under the undivided fee rule in one proceeding because the rule states that the fee is not to be valued simply as a sum of its parts.

o R.C. § 163.31-.33 & R.C. §§ 5516.07 - .08 explicitly recognize a right to just compensation for one of the “parts” (i.e., the sign) of the fee.

R.C. § 163.33(A) & R.C. § 5516.08(A) require payment of just

compensation to both the owner of the advertising device and the owner of the real property upon which the advertising device is located.

o Explicitly treating advertising devices separately in the Revised Code suggests plain intent to value interests therein separately as well.

o Accordingly, just compensation for the fee does not necessarily equate to just

compensation for the real estate plus just compensation for the billboard pursuant to R.C. § 163.31-.33. This principle appears to be contrary to the statute.

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o Nonetheless, the Rule is still good law, with no court in Ohio yet recognizing its inapplicability to an interest separately and explicitly recognized under the Revised Code.

o Case law from other jurisdictions supports this interpretation:

Florida: Dep’t of Transp. v. Powell, 721 So. 2d 795 (Fla. Ct. App. 1998)

(undivided fee rule no applicable to federally funded appropriations due to applicability of 42 U.S.C. § 4625; see also Nat’l Adver. Co. v. Dep’t of Transp., 611 So. 2d 566, 570 (Fla. Dist. Ct. App. 1992).

Illinois: Dep’t of Transp. v. Drury Displays, Inc., 327 Ill. App. 3d 881, 764 N.E.2d 166 (Ill. Ct. App. 2002) (unpublished portion of decision approved valuation of improved leasehold as separately compensable).

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III. AWARDS Proving Your Case: Expert Witnesses

Appraisers City Planners Engineers

Methods of Valuation

o Market Approach

Definition: An approach to estimating market value of a subject property by

means of examining the transaction prices of recent sales of properties similar to the subject property in the same or similar real estate asset market.

Focuses on the principal of substitution and the use of comparables.

Process: the appraiser reviews comparable properties and makes adjustments to their sales price based on differences with the subject property.

Define the submarket (i.e., what would be considered substitutes) of comparable properties

Screen and select the comparable properties Adjust the comps towards the subject property based on time, size,

features, quality, and location (adjustments are never made to subject) Develop a conclusion of value.

o Income Approach

Also known as the capitalization of net income approach and used to estimate value of income producing property such as apartments, commercial buildings, and hotels.

Based upon the premise of anticipation, i.e., the expectation of future benefits.

This method of valuation relates value to two things: (1) the "market rent" that a property can be expected to earn, and (2) the "reversion" (resale) when a property is sold.

Process: net income divided by the capitalization rate equals value

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Estimate the annual gross income generated by the property being

appraised; Deduct an appropriate allowance for vacancy and rent loss from the

gross annual income to arrive at the "effective" gross income; Deduct all annual operating expenses from the effective gross income

to arrive at the annual "net" income; Determine an appropriate capitalization rate; Divide the annual net income by the capitalization rate.

o Cost Approach

Method of appraising property based on the depreciated reproduction or replacement cost (new) of improvements, plus the market value of the site. This approach is used when the market approach is not appropriate due to the lack of comparable properties.

Definitions:

Replacement Cost: is the cost to replace subject improvements with a

structure having the same utility and amenities using today's construction prices.

Reproduction Cost: is the cost to replicate a structure using today's prices.

Four Basic Steps: (1) determining the property's land value; (2) determining

the value of improvements; (3) subtracting any depreciation; and (4) adding the land value to the depreciated value of the improvements.

Land + Depreciated Value of Improvements = Indicated Value by Cost

Approach What is “Just Compensation?” “Just compensation” consists of compensation for the property actually taken (i.e., the fair

market value) and damages to the residue. Hurst v. Starr 79 Ohio App.3d 757, 762-763, 607 N.E.2d 1155 (10th Dist. 1992).

o Benefits to the remaining land by reason of the construction of the proposed improvement are not considered.

Damage to the residue is measured by the difference between the fair market values of the remaining property before, and after, the taking. Id.

Conditions that result from the exercise of eminent domain such as dust, dirt, grime, tremors from highways, divider strips and increase or decrease of traffic are not compensable under

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Ohio law. Richley v. Jones, 38 Ohio St.2d 64 (1974); In re Appropriation of Easements from Lease, Ohio App.3d 120, 449 N.E.2d 780 (7th Dist. 1981).

Highest and best use may be defined as the most probable and permissive use for which a

property may be used and is capable of being used. The American Institute of Real Estate Appraisers defines highest and best use as follows:

o The reasonable and probable use that will support the highest present value, as

defined, as of the effective date of the appraisal.

Alternatively, that use, from among reasonable probable and legal alternative uses, found to be physically possible, appropriately supported, financially feasible, and which result in highest value.

Loss of Goodwill - R.C. § 163.14(C): o Jury also assesses loss of goodwill if:

(1) The loss is caused by the taking of the property;

(2) The loss cannot reasonably be prevented by relocation of the business or by taking steps and adopting procedures that a reasonably prudent person would take and adopt in preserving the goodwill.

o Limitations

Not available if the business is receiving relocation assistance under R.C. §

163.53; Cannot be duplicated in any compensation otherwise awarded to the owner; Capped at $10,000; and Prohibited in appropriations of less than the entirety of the business property.

Relocation Expenses Federal Relocation Benefits - Uniform Relocation Assistance and Real Property

Acquisitions Policies Act of 1970 (codified as amended at 42 U.S.C. § 4601, et seq.):

o The Uniform Act requires prohibits approval any grant to, or contract or agreement with a “displacing agency” until the “displacing agency” provides assurances that it will adhere to the federal requirements.

o Available Benefits – “displaced person” entitled to:

Actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property;

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Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property, as determined by the head of the agency;

Actual reasonable expenses in searching for a replacement business or farm; and

Actual reasonable expenses necessary to reestablish a displaced farm, nonprofit organization, or small business at its new site, but not to exceed $10,000.

Federal Regulations - 49 C.F.R. Part 24 - Regulations administering relocation payments

to displaced persons have been issued by the Department of Transportation of the United States, which has been designated the lead agency:

o Displaced person generally entitled to entitled to payment of his or her actual moving and related expenses, as the Agency determines to be reasonable and necessary. 49 C.F.R. § 24.301.

o Alternatively able to choose a fixed payment:

49 C.F.R. § 24.302 – Dwellings: determined according to the Fixed Residential Moving Cost Schedule (http://www.fhwa.dot.gov//////realestate/fixsch96.htm.)

49 C.F.R. § 24.305 – Businesses: equal the average annual net earnings of the business, as computed in accordance with paragraph (e) of this section, but not less than $1,000 nor more than $20,000.

o Moves from a dwelling, business or farm entitled reasonable and necessary expenses

related to:

Cost for professional movers OR self-movers; Transportation; Loss of advertising signs; Costs related to personal property, including packing, crating, storing, and

replacing; Disconnecting, dismantling, removing, reassembling, and reinstalling

relocated household appliances and other personal property. (includes includes machinery, equipment, substitute personal property, and connections to utilities available within the building for businesses, farms, or nonprofit organizations; it also includes modifications to the personal property, including those mandated by Federal, State or local law, code or ordinance, necessary to adapt it to the replacement structure, the replacement site, or the utilities at the replacement site, and modifications necessary to adapt the utilities at the replacement site to the personal property).

Costs associated with acquiring applicable licenses or permits;

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Searching for a replacement location (capped at $2,500 for business or farm); professional services;

Cost of substitute personal property; Direct loss of personal property; and Catchall – other moving-related expenses that are not listed as ineligible, as

the agency determines to be reasonable and necessary.

o Small Businesses: small businesses, as defined in § 24.2(a)(24), farms or nonprofit organizations entitled to receive a payment, not to exceed $10,000, for expenses actually incurred in relocating and reestablishing such small business, farm or nonprofit organization at a replacement site. 49 C.F.R. § 24.304.

o Ineligible expenses include: Cost of moving any structure or other real property improvement in which the

displaced person reserved ownership; Interest on a loan to cover moving expenses; Loss of goodwill; Loss of profits; Loss of trained employees; Additional operating expenses of a business or farm operation incurred

because of operating in a new location; Personal injury; Legal fees associated with preparing a claim for relocation payments; Expenses for search for a replacement dwelling; Physical changes to the real property at the replacement location of a business

or farm operation, except as provided in §§ 24.301(g)(3) and 24.304(a); Costs for storage of personal property on real property already owned or

leased by the displaced person; and Refundable security and utility deposits.

State Relocation Benefits - R.C. §§ 163.51-.62:

o The enactment of R.C. § 163.51 to R.C. § 163.62 provides uniform relocation

allowances for persons displaced by public programs or projects undertaken by a state agency, as defined in R.C. § 163.51(A), with federal financial assistance.

o Senate Bill 7 extended certain benefits to projects paid for solely with state funds.

R.C. § 163.15. o Available Benefits – R.C. § 163.53:

Actual reasonable expenses in moving the person, the person's family, business, farm operation, or other personal property;

Actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal

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to the reasonable expenses that would have been required to relocate such property, as determined by the head of the displacing agency;

Actual reasonable expenses in searching for a replacement business or farm, but not to exceed two thousand five hundred dollars;

Actual and reasonable expenses necessary to reestablish a displaced farm, nonprofit organization, or small business at its new site, but not to exceed ten thousand dollars.

o The difference with State benefits is the cap ($2,500) placed on expenses for searching for a replacement business, etc. However, 49 C.F.R. § 24.301 imposes an identical restriction with respect to

businesses or farms.

State Regulations - OAC §§ 5501:2-5-01, et seq.:

o The Ohio Administrative Code implements the substance of the applicable CFR sections.

o 5501:2-5-03(A) – (F) contain provisions identical to 49 C.F.R. § 24.301-.306.

Maximizing Relocation Benefits

o Regardless of how questionable a potential client’s interest in the real property may be, it is worth pursuing relocation benefits in the event they are forced to relocate the business.

o Understand that the compensation offered to acquire any real property by an agency is separate and distinct from the relocation process. The latter is purely administrative and exclusive from the compensation for the real property.

o Leverage – the relocation process can affect the possession date of the real property

and can leverage settlement negotiations. o Planning and discussion prior to agency appraisal are essential. Get involved early in

the acquisition process and prevent relocation items from being classified as real property items.

o In developing your relocation determination, be aware of the following provisions of

the C.F.R. and O.A.C.: Purpose:

49 C.F.R. §2 4.1 (b): To ensure that persons displaced as a direct

result of Federal or federally-assisted projects are treated fairly, consistently, and equitably so that such displaced persons will not

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suffer disproportionate injuries as a result of federal projects designed for the benefit of the public as a whole.

O.A.C. § 5501:2-5-01 (A): The purpose of rules 5501:2-5-01 to 5501:2-5-06 of the O.A.C. is to amplify sections 163.51 to163.62 of the Revised Code and to implement the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C. § 4601 et seq.), in accordance with the following objectives:

o (1) To ensure that owners of real property to be

acquired for projects are treated fairly and consistently, to encourage and expedite acquisition by agreements with such owners, to minimize litigation and relieve congestion in the courts, and to promote public confidence in land acquisition programs;

o (2) To ensure that persons displaced as a direct result of federally assisted projects and state highway projects are treated fairly, consistently, and equitably and receive relocation assistance benefits so that such persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole; and

o (3) To ensure that agencies implement rules 5501:2-5-

01 to 5501:2-5-06 of the Administrative Code in a manner that is efficient and cost effective.

Waiver – The federal or state agency funding a project may waive any

requirements under the C.F.R. or O.A.C. not required by law if it determines that the waiver does not reduce any assistance or protection provided to an owner or displaced person – determined on a case-by-case basis.

49 C.F.R. § 24.7 & O.A.C. 5501:2-5-01(G)

o All money received as a relocation entitlement is considered non-taxable income by the IRS.

FORMS – See Below Jury Verdicts Entry Confirming Verdict Judgment Entry on Settlement (Short and Long Version)

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JURY INSTRUCTIONS Cost to Cure - In this case, ladies and gentlemen of the jury, you heard testimony to

what is commonly referred to as the "cost of cure." Where the damage to the residue can be avoided by repair or restoration work, and the reasonable cost of such work is less than the decrease in the market value of the property, such costs form the measure of damages. The "cost of cure" cannot be utilized to increase the damages to the residue, but may be employed to reduce such damages. If, by the expenditure of money in an amount less than the difference between the before and after fair market value of the residue, the owner could make improvements to the residue to restore its fair market value, then evidence of such "cost of cure" would be admissible to limit the amount of damages. City of Columbus v. Farm Bureau Cooperative Assn., 27 Ohio App. 2d 197.

Damage to Residue - The measure of damage to the residue is the loss or depreciation of the fair market value of the property or, in other words, the difference in the fair market value of the remaining portion of the property before and after the appropriation. If (when) you find that the remaining portion of the property has been injured and is less valuable because of the part taken, then you should inquire into such injury and determine, in dollars and cents, the amount of such loss or depreciation caused by the injury. This will be the amount of damages caused to the residue of the property. To determine the amount of damage to the residue of the property taken you will determine the fair market value of the entire property prior to the take and the fair market value of the property after the take. After determining both the fair market value of the property prior to and after the appropriation you will subtract the fair market value of the property after the appropriation from the fair market value of the property prior to the appropriation. This sum is the total compensation. From the total compensation you will deduct the amount determined by you as the value of the land taken and the value of the improvements taken, if any. The remainder or the difference between the market value of the property before the appropriation less the value of the land taken and the value of the improvements taken (if any) is the damage to the residue.

Temporary Taking - The measure of compensation caused by a temporary work easement is the diminution in the rental value of the property if rented (or the diminution in value of the use of the property by the owner) during the temporary appropriation. In this case, the temporary work easements are for a period of two years. During that period of time, the owner has the right of ingress and egress across the easements. Cuyahoga County has the right to use the land in the area of the easements for the demolition and reconstruction of the bridge. After the two-year period of temporary easements, the use of the property will revert to the property owner. City of Norwood v. Sheen, 126 Ohio St. 482.

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FORM – Total Taking

IN THE COURT OF COMMON PLEAS

____________ COUNTY, OHIO

CITY / STATE, ) CASE NO. ) Plaintiff, ) JUDGE ) -vs- ) ) PROPERTY OWNER, et al., ) ) Defendants. )

VERDICT FORM

We, the jury, being duly impaneled and sworn, by the concurrence of the undersigned

jurors, being no less than three-fourths of our number, do assess the award to be paid by the

Plaintiff to the Defendant, as follows:

1. Compensation for Property Taken $ Those jurors concerning in this verdict have signed their names this day of , 20__.

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FORM – Partial Taking

IN THE COURT OF COMMON PLEAS ____________ COUNTY, OHIO


VERDICT FORM

We, the jury, being duly impaneled and sworn, by the concurrence of the undersigned



1. Compensation for Land(And Improvements) Taken $_______________ 2. Damage to the Residue $_______________ 3. Cost to Cure $_______________ 4. Total Compensation $_______________ Those jurors concerning in this verdict have signed their names this day of , 20__.

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FORM – Temporary Taking



VERDICT FORM We, the jury, being duly impaneled and sworn, by the concurrence of the undersigned



1. Compensation for Property Temporarily Taken $_______________ 2. Damage to the Residue $_______________ 3. Cost to Cure $_______________ 4. Total Compensation $_______________ Those jurors concerning in this verdict have signed their names this day of , 20__.

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Form – Entry Confirming Verdict



ENTRY CONFIRMING VERDICT

This cause came on to be heard on [date], and a jury having been impaneled and sworn for

the assessment of compensation to be paid by [ ________ ] to the owner for the fee simple title

to said premises described in the Petition. The Court finds that all the necessary steps required by

law have been taken and that all owners, agents, or other persons having or claiming any interest

in the premises have been served according to law. The Court further finds that the jury having

been impaneled and sworn, upon the evidence submitted, made the following award by reason of

the appropriation of the [fee simple interest/any other interest] in and to the premises described

in the Petition for the use of [ ________ ] to the following property owner as set forth in the

Petition:

Owner of property Amount of verdict ________________________________________ $__________________________________ ________________________________________ __________________________________ It is, therefore, ordered, adjudged, and decreed that the award as set forth above be and

the same is hereby confirmed, and that upon deposit of the award [ ________ ] may enter into

and take possession of the parcel of land. A date shall be fixed for a hearing on the Motion for

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distribution of funds to be paid under the award, and a notice of hearing shall be given to all

persons having an interest in the funds.

It is further ordered, adjudged, and decreed that the costs of these proceedings, including

title insurance policy in the amount of [ $________ ], are assessed against [ ________ ]. Real

estate taxes to be prorated as of the date the award is paid into Court.

_____________________________________ _____________________________________ Attorney for Plaintiff Judge of [Probate/Common Pleas] Court _____________________________________ Attorney for Owner

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FORM – Judgment Entry on Settlement - Short



JUDGMENT ENTRY ON SETTLEMENT

On this [date], the Court finds that the owners of the property described in the Petition for

appropriation have agreed with [agency] upon the full amount of compensation and damages due

to [him/her] by reason of the appropriation of their property. The Court further finds that

[agency] has deposited with the Court the sum of [ $________ ], being the agreed

compensation, and these funds are to be paid to the owners and parties herein according to their

respective interests which shall be determined upon further order of the Court.

It is, therefore, ordered that the [fee simple title/interest in the easement] in the following

described property: [legal description], be and is hereby [transferred to/vested in] [agency], free

and clear of all title and interests of the following named parties: [names of parties as set forth in

the Petition]. The Court orders [agency] to pay all costs of this proceeding; and orders that a

record be made according to law.

Approval: _____________________________________ Judge of [Probate/Common Pleas] Court ________________ Plaintiff/Agency _________ Defendant

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FORM – Judgment Entry on Settlement - Long



JUDGMENT ENTRY ON SETTLEMENT The parties have advised the Court that the owner of property appropriated in this action,

[owner], has agreed with the Plaintiff, [City/State], upon the amount of compensation and

damages, if any, to the residue due said property owner by reason of the appropriation of the

property interests described herein. The parties have agreed that the full compensation and

damages, if any, for the appropriation of Parcel No. ______ shall be [__________________

AND 00/100 DOLLARS ($__________)]. [Owner], in consideration of the foregoing agreed

compensation, does hereby further release all claims for further compensation, including interest,

resulting from the appropriation of said property or property interests.

The Court further finds that the [City/State] has deposited with the Clerk of this Court,

the sum of be [__________________ AND 00/100 DOLLARS ($__________)] equal to the

total amount of the agreed settlement. The parties agree that such settlement funds shall be

distributed as the interests of the property owner and any other defendants may appear upon

filing of a motion for final distribution pursuant to Revised Code 163.18.

Pursuant to Revised Code 163.09(A), IT IS HEREBY ORDERED that the settlement

agreement of the parties as indicated above as to full compensation and damages, if any, to the

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value of the remaining property in the total amount of be [__________________ AND 00/100

DOLLARS ($__________)] for the appropriation of Parcel No. ______, described below and for

the granting of the Petition for Appropriation of the property interests described therein be and is

hereby approved.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all right, title and

interest, in fee simple, is vested in the [City/State] in the premises described in the Petition filed

herein as Parcel No. _______. This parcel is completely described as follows:

[Insert Legal Description]

It is further ORDERED that the above-described property interest shall be vested in the

[City/State] as of [date] for Parcel No. ______.

It is further ORDERED, ADJUDGED and DECREED that the above-described interests

are hereby duly vested in the [City/State] free and clear of all claims of the owner of said

property and any person or persons having or claiming an interest therein, to wit:

Name Address Interest or Right [Owner] Fee Owner [Mortgagee] Mortgage [County Auditor/Treasurer] Taxes [Contractor] Mechanic’s Lien [Etc.] Upon receipt of this Judgment Entry on Settlement, the Court shall give notice by

ordinary mail to the owner, [Owner], in care of his attorney, [Attorney] [Address] and to the

Auditor and Treasurer of ______ County, Ohio, in care of their attorney, [Prosecuting Attorney]

[Address], to the effect that the total sum of [__________________ AND 00/100 DOLLARS

($__________)] is available for distribution upon the filing with the Court of a Motion for

Distribution (R.C. 163.18).

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IT IS FURTHER ORDERED that the Clerk of Courts shall withhold from the amount

deposited herein any taxes required to be paid pursuant to law as directed by the County Auditor

or Treasurer. After the payment of such accrued taxes, the balance of the monies deposited

herein by the [City/State] shall be paid by the Clerk of Courts to the owner or any person or

persons named herein having or claiming an interest in the land appropriated in this proceeding

as their interests may appear upon the filing of a proper motion for distribution.

IT IS FURTHER ORDERED pursuant to Revised Code 163.15, that upon the filing and

journalization of this Judgment Entry on Settlement, the Court shall transmit a certified copy of

this Entry to the County Auditor; that said County Auditor shall transfer Parcel No. ____ on the

Auditor’s books effective [Date] and transmit the certified copy with proper endorsements to the

County Recorder; and that said County Recorder shall promptly record such certified copy; and

that the costs of such transfer by the County Auditor and of recording by the County Recorder

shall, pursuant to R.C. 163.15, be taxed as costs in this appropriation proceeding by said Auditor

and Recorder submitting a written statement for such costs to the Clerk of Courts who shall

include such amounts in the statement of costs issued at the conclusion of proceedings in this

action.

IT IS FURTHER ORDERED that the County Auditor also cause Parcel No. _____ to be

removed from the real estate tax records of this county as of [Date], subject to the approval of

the Tax Commissioner as required by R.C. 5713.08; and to such extent that the [City/State] is

duly vested with title thereof, free and clear of any real estate tax consequences therefor.

IT IS FURTHER ORDERED that, pursuant to R.C. 163.16, court costs of this proceeding

shall be paid by Plaintiff, [City/State]; and that a record be made of these proceedings according

to law.

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IT IS SO ORDERED.

____________________________________ Judge of [Probate/Common Pleas] Court

APPROVED: ________________ Plaintiff/Agency _________ Defendant _________ Mortgagee, etc.

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