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The Use of Eminent Domain for Shared-Use Paths May Be Open to Challenge
Eminent Domain and Shared-Use Paths
Eminent domain allows the government to take private property for public use. The Fifth Amendment Takings Clause and the Fourteenth Amendment Due Process Clause of the U.S. Constitution, as well as Section 19, Article I of the Ohio Constitution, guarantee that landowners receive just compensation when the government takes their private property by eminent domain. In Ohio, eminent domain, also called appropriation, is governed by Ohio Revised Code section 163.01 through 163.63.
A shared-use path may also be called a multi-use path, recreational trail, bike path or bikeway. Shared-use paths have become a common part of government projects, but the question remains whether eminent domain may be used to take property for a shared-use path. Ohio Revised Code Section 4511.01(PPP), states that a “[s]hared-use path" means a bikeway outside the traveled way and physically separated from motorized vehicular traffic by an open space or barrier and either within the highway right-of-way or within an independent alignment. A shared-use path also may be used by pedestrians, including skaters, joggers, users of manual and motorized wheelchairs, and other authorized motorized and non-motorized users. A shared-use path does not include any trail that is intended to be used primarily for mountain biking, hiking, equestrian use, or other similar uses, or any other single track or natural surface trail that has historically been reserved for nonmotorized use.”
While particular Ohio statutes governing certain political subdivisions and government agencies specify what constitutes a public use justifying taking property by eminent domain, these statutes vary in their treatment of a shared-use path. Only one specifically authorizes eminent domain for that purpose. Another appears to prohibit a taking for that purpose. All the rest are silent on the subject. These statutes are discussed below.
Who Can or Cannot Use Eminent Domain for a Shared-Use Path?
Ohio Department of Natural Resources
In Ohio, only the Ohio Department of Natural Resources has express statutory authority to use eminent domain to take property for a shared-use path. Ohio Revised Code 1519.02 authorizes the director of natural resources to acquire property for establishing, protecting and maintaining any state recreational trail. The acquisition of property cannot include more than twenty-five acres, regardless of whether the property is acquired through eminent domain or purchase.
Boards of Park Commissioners
Whereas the director of the Ohio Department of Natural Resources has express statutory authority to appropriate property for a shared-use path, a board of park commissioners has no such express statutory authority. Under Ohio Revised Code 1545.11, a board of park commissioners may acquire lands by appropriation for conversion into forest reserves and conservation of natural resources.
It is unclear, however, whether conversion into forest reserves and/or the conservation of natural resources includes constructing shared-use paths. The Court of Appeals of Ohio for the Seventh District in Mahoning County in Mill Creek Metropolitan Park District v. Less held the Park District did not have the authority to appropriate Less's property to construct a shared-use path under ORC 1545.11. The Park District asserted the bikeway was necessary to conserve natural resources. However, the court held providing recreational bikeways does not constitute conservation of natural resources, and that, " . . . characterizing essentially anything that serves the public and contributes to the health and welfare of the community as the ‘conservation of natural resources’ is a bit of a stretch."
While the decision of Court of Appeals in Less seemed to give an answer on park districts' power to appropriate property for shared-use paths, the Ohio Supreme Court vacated the court of appeals' judgment and remanded to the trial court on the grounds that the Court of Appeals did not have jurisdiction to decide the case because the trial court did not hold a necessity hearing pursuant to Ohio Revised Code 163.09. Hence, the question remains unanswered.
Counties, Municipalities and Townships
The statutes governing counties, municipalities and townships include authority to take property by eminent domain but are ambiguous as to the authority to take property for a shared-use path.
Counties: Under Ohio Revised Code 303.38, county commissioners are authorized to acquire property by eminent domain the commissioners determine is necessary for or in connection with a county renewal project. However, this statute is silent as to what specific projects constitute county renewal projects. Other sections of the Ohio Revised Code include a lengthy list of specific purposes for which a county may acquire property by eminent domain. There is no specific power to take property for a shared-use path.
Nonetheless, at least one common pleas court has held a municipality may appropriate property for a shared-use path (City of Toledo v. Toledo Country Club, et al., Lucas County).
Townships: Townships acquire their eminent domain authority under the limited home rule government chapter. Ohio Revised Code 504.19(B) authorizes townships to appropriate property to construct water supply, sewer services or public health exigency. Ohio Revised Code 504.24 authorizes townships to appropriate property to construct off-street parking facilities. As above, there is no express statutory authority for townships to appropriate property to construct a shared-use path.
Ohio Department of Transportation
The Ohio Department of Transportation cannot take property through eminent domain to construct bikeways or bike paths. Ohio Revised Code 5501.31 authorizes the director of transportation to construct bikeways or bike paths only on property purchased from a willing seller.
Possible State Legislation Clarifying The Issue
Legislation in the prior Ohio General Assembly was introduced that could have resolved these ambiguities surrounding eminent domain and shared-use paths. Unfortunately neither the bill nor the sections of the bill specific to shared-use paths were signed into law. Government agencies and landowners will have to wait and see if a new bill will be introduced.
Conclusion
For now, the question of eminent domain and shared-use paths remains unclear in most situations. A property owner faced with an appropriation for this purpose should consult with legal counsel experienced with eminent domain.
Should you have any questions regarding eminent domain, please contact Ms. Webb or Mr. Harper.
The authors gratefully acknowledge the assistance of Anna E. Rowland, a summer associate, in preparing this article. Ms. Rowland is a third year law student at the University of Toledo College of Law.
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Disclaimer: This alert has been prepared by Eastman & Smith Ltd. for informational purposes only and should not be considered legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney/client relationship.