The federal appeals court covering Michigan recognized that impacts on access suffered as a result of the reconstruction of a driveway may support a takings claim.
CHKRS, LLC v City of Dublin, No. 20-3435, 2021 WL 21808 (6th Cir Jan 4, 2021), addresses standing and the substance of takings claims relating to a residential driveway.
This case originated in Ohio and was heard by the Sixth Circuit Court of Appeals. The holding is pertinent in Michigan because the case involves analysis of federal law that applies in Michigan, federal law often informs Michigan state court decisions, and the Sixth Circuit includes the federal courts located in Michigan.
The Sixth Circuit overturned the trial court by allowing a claim the claim to proceed. There are some complicated underlying facts in the case. The plaintiff was a tenant with a poorly worded option to purchase the leased property when a formal eminent domain taking was initiated in the Ohio state courts “to obtain a permanent bike-path easement across the property and a temporary easement for the construction.” Id. “After the state trial court entered its final judgment” in the formal condemnation, the plaintiff “alleges that the city reentered the property and tore out an initial replacement driveway that it had installed.” Id. This lawsuit related to the new driveway. The property owner “asserts that the new driveway layout suffers from design flaws and violates state and municipal building and traffic codes. Residents attempting to turn onto Riverside Drive out of the residence purportedly cannot see oncoming traffic approaching from the south. This northbound traffic also allegedly cannot see a car stopped on the driveway attempting to turn onto the road. And the design has purportedly made it impossible for a car traveling southbound on Riverside Drive to turn left into the property.”
The federal district court dismissed the lawsuit stemming from the installation of the second driveway, holding that the plaintiff lacked standing. The Sixth Circuit Court reversed, concluding that a lesser standard applies to determine whether a court has standing to hear a case versus whether the plaintiff bringing the case will prevail. This general principle is an important holding. The particulars underlying the holding rested primarily on the fairly unique facts relating to the relationship between the plaintiff and the fee owner of the property when the state proceedings started and are less important.
Perhaps more importantly, the Sixth Circuit recognized the validity of the underlying facts when alleging a taking under federal law. Specifically, the holding recognizes that work undertaken on a particular property that impacts access to the property from the public right of way can be the basis for a taking. It also recognizes the potential that the inability to make a particular traffic movement to or from a property is an access issue as opposed to a circuity of travel issues. Michigan courts recognize reductions of access as compensable but do not recognize circuity of travel as compensable.
These issues arise both in the formal and de facto taking setting. Since facts that could create a de facto taking are clearly recognized by MCL 213.70(2) to be a damage payable in a formal taking, this holding supports severance damages in a formal taking.
The construction in this case arose as part of a roundabout project. Partial takings for roundabouts are becoming more prevalent. Last year, I successfully obtain increased just compensation for properties adjacent to roundabouts in Oakland and Saginaw Counties for issues similar to those raised in this case.
Overall, even though this case arose in Ohio and implicates federal law, it is helpful to property owners in Michigan.
If you are involved in a formal taking or believe you may have suffered a partial taking, please do not hesitate to contact me.