In a 6-1 decision Thursday, the Ohio Supreme Court held that the four-year statute of limitations in R.C. 2305.09(E) barred property owners from seeking a writ of mandamus to compel appropriation proceedings against a park board, where the board had constructed a nature/walking trail on their property.
The majority rejected the property owners’ claim that the statute was tolled due to a continuing violation; rather than a continuing violation, the Court characterized the repeated use of the trail by the park board and the public as “the present effect of past violations” and explained that “a continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation.” And the Court held that it was just one event — the construction of the trail — which constituted the violation in this case.
In dissent, Justice Pfeiffer argues that repeated entrance onto the property of the relators constituted repeated or continuing violations of their constitutional property rights. He likens it to a continuing trespass or nuisance, in which the statute of limitations is tolled, and he rejected the argument that a tolling rule would render the statute of limitations meaningless–it would still apply, for example, to temporary takings or true single-event takings, such as the installation of a utility line for which no repeated access is necessary.
The language of the statute at issue here does appear to favor the majority — R.C. 2305.09 provides that an action “[f]or relief on the grounds of a physical or regulatory taking of real property” “shall be brought within four years after the cause of action accrued.” But refusing to recognize a tolling rule also seems to run afoul of Section 19, Article I of the Ohio Constitution, which provides in part that “Private property shall ever be held inviolate . . . .” And it seems to me that even if the four years expired based on the initial installation of the trail, the subsequent installation of benches, parking areas, and so on would be new violations which would not rely on a tolling rule at all.
Almost as a side note, the Court observed in reference to prior litigation on similar issues that “[u]nlike other judgments . . . a declaratory judgment determines only what it actually decides and does not preclude other claims that might have been advanced.” Is this authorization from the Supreme Court to use a dec action to circumvent the normal rules of res judicata? It may be.
All in all, an unusual decision from the Court, and one which is not especially friendly to property rights.
The case is State ex rel. Nickoli v. Erie MetroParks, 2010-Ohio-606 [PDF].
This post was written by Jeffrey M. Nye.
