Ohio Quick Takes:  An Eminent Domain Hot Topic

Linde Hurst Webb and Nicholas W. Bartlett

General Overview

Ohio has the power of eminent domain, similar to other states and the federal government. This means the State, and certain other agencies, can take a landowner’s property for a public use. The landowner is, of course, entitled to compensation. Ohio’s eminent domain procedure is outlined in the Ohio Revised Code sections 163.01 – 163.22. The typical procedure requires the State to wait to take possession until after a jury decides how much compensation a landowner is due or until after the landowner settles with the State. However, the Ohio Constitution and the Ohio Revised Code allow the State to take your property before a jury decides compensation under certain circumstances. This process is commonly referred to as a “quick take.” The State, or appropriating agency, determines what compensation the landowner is due, deposits that amount with the court, and they are then entitled to take immediate possession of a landowner’s property.

Events That Qualify

The Ohio Constitution and the Ohio Revised Code state that a quick take can only be invoked during a time of war or other public exigency, or for the making or repairing of roads which will be open to the public without charge  (So, for example, the Ohio Turnpike cannot use a quick take for the turnpike as it is a toll road.) The Ohio Revised Code statute also allows quick takes for a rail service. A “public exigency” is not defined in the Constitution or statute, but an Ohio Appellate case defined it as “an occasion of unavoidable urgency and suddenness compelling or insistently calling for immediate action or remedy.”

So what has a quick take been used for?

Road or highway projects/improvements (commonly through the Ohio Department of Transportation)

What uses has a quick take been denied?

Who Can Use This Quick Take Power?

Generally, the State and almost any public agency can exercise this power but only for one of the uses described above. If the State or agency is using quick take procedures for something other than the making or repairing of public roads, or during a war or other public exigency, then they likely are violating Ohio law.

Potential for Abuse

 A couple of recent Ohio court decisions have implicitly expanded the language in the Ohio Constitution and the Ohio Revised Code (City of Dublin v. Friedman  and City of Dublin v. RiverPark Group, LLC,). Both of these cases involved the City of Dublin taking private property for a “shared-use” path using quick take.  (A shared use path is a path off to the side of a road for pedestrians, bicyclists, etc., but not actually part of the road itself.)  However, the courts could not address the constitutional argument because the projects already had been completed and the landowners had removed the deposit. Since these decisions, agencies and appropriators have been attempting to proceed with quick takes for uses that are not for the making or repairing of roads open to the public without charge, or during a time of war or public exigency, incorrectly believing that the agencies have broad power to determine public use beyond what the Ohio Constitution provides. In fact,  the seminal case of  Norwood v. Horney, decided by the Ohio Supreme Court in 2006, restricted the broad power to take property, by stating that the power to take is to be strictly construed.

Landowners Beware

If you receive a summons and complaint, and it specifically says that money has been deposited with the court – that is your cue that the State, or agency, is attempting to use a quick take. DO NOT withdraw the money. While you have every right to do so, withdrawing the money deposited with the court will waive your right to challenge the State’s authority to use a quick take – meaning that they will take immediate possession of your property and you cannot stop them.

As always, if your property is being taken, remember that you do not have to take the first offer the State gives you. You are entitled to have a jury determine what the State must pay. Contact the Eminent Domain attorneys at Eastman & Smith if your property may be impacted by a road, park, utility or other project in your neighborhood.   


   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.