The Ohio Supreme Court recently sided with a group of landowners who have suffered damaging flooding after the Ohio Department of Natural Resources redesigned and significantly increased the size of a spillway at Grand Lake St. Mary’s. In State ex. rel. Doner v. Zody, 2011-Ohio-6117, the state was ordered to compensate landowners near the Grand Lake St. Mary’s spillway for the taking of their property. Ohio Farm Bureau participated in this case by filing an amicus brief supporting the landowners’ claims and closely monitoring the case with the attorneys representing the landowners.
After the spillway was increased from 39-feet to 500-feet, landowners began experiencing repetitive flooding which was more severe, frequent and damaging than before the spillway was enlarged. As flooding continued, the landowners’ ability to use the property for agriculture or any other means became almost impossible. Despite landowner attempts to work with ODNR for compensation, eminent domain proceedings were never initiated. Landowners were forced to file a writ of mandamus with the Ohio Supreme Court, asking the Court to require ODNR to initiate takings proceedings.
The state denied any taking, and alleged the statute of limitations would have run out on any taking that may have occurred. Typically, the statute of limitations for a taking by the government is four years. The spillway had been increased in 1997 and the landowners had not filed any action until 2009. However, the court found that time period does not run when the effect of an actor’s conduct on their own land is of a continuing nature, and the conduct causes recurring damage to another’s property. In her opinion, Justice Yvette McGee Brown further clarified that in an eminent domain case involving government induced flooding, a landowner can establish a taking by proving that the flooding was intended by the government or is the direct, natural or probable result of the government’s action; and the flooding is either a permanent invasion or creates a permanent liability because of intermittent but inevitably recurring overflows.
The Ohio Farm Bureau Federation becomes involved in a limited amount of litigation which is likely to have a precedential effect upon the agricultural industry. Because this case stood to affect the interpretation of many future eminent domain actions, OFBF was happy to lend their support in the form of our own legal analysis and concerns in the amicus brief.