Vrbancic v. Nye

No. C72-1114 (N.D. Ohio August 8, 1973)

A declaration of intent by the state Director of the Department of Natural Resources to designate land owned by plaintiffs as part of a Scenic River Area does not violate due process since the property has not been taken and the Director is statutorily prohibited from restricting its use. The law provides for acquisition of land by the Director only when funds are appropriated by the Legislature. Plaintiffs' allegation that the designation will have the effect of clouding their title is without merit since zoning laws or other ordinances which result in devaluation of property have been held not to be a "taking" without just compensation.

Counsel for Plaintiffs
Lewis J. Curran
840 Leader Building
526 Superior Avenue East
Cleveland, Ohio 44114

Counsel for Defendants
Michael N. Tousey Asst. Attorney General
361 East Broad Street
Columbus, Ohio 43215

[3 ELR 20759]

Per Curiam

MEMORANDUM AND ORDER

Plaintiffs, owners of real property in Ashtabula and Lake County, Ohio, have invoked the jurisdiction of this Court seeking declaratory and injunctive relief for an alleged deprivation of rights guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. Because plaintiffs seek to enjoin the enforcement of a state statute, a three-judge court was convened pursuant to the provisions of 28 U.S.C. § 2281. The parties have submitted this matter to the Court upon the pleadings, briefs, affidavits, and stipulations of counsel.

The parties have entered into stipulations resolving the factual matters in dispute. They are as follows:

1. Defendant William B. Nye is the duly appointed, qualified and acting Director of the Department of Natural Resources of the State of Ohio, and in such capacity he has the authority pursuant to § 1501.16 of the Ohio Rev. Code to create Scenic River Areas.

2. Defendant William Brown is the elected and duly qualified Attorney General of the State of Ohio.

3. On or about August 23, 1972, defendant William B. Nye made known his intention to designate a portion of the Grand River, from State Route 322 in Ashtabula County, downstream approximately 56 miles to the St. Louis, Chicago, and New York Railroad Trestle south of the City of Painesville, in Lake County, a Scenic River.

4. Plaintiff Anthony Simonic is a citizen and the owner of real property situated in Austinberg Township, Ashtabula County, and plaintiff Walter Vrbancic is a citizen and owner in common of real property situated in Concord Township, Lake County, Ohio. Both parcels of land are adjacent to the Grand River and all or part of said real properties are included within the Scenic River Area proposed by the defendant William B. Nye.

5. Defendant William B. Nye intends to cause said portion of the Grand River and an undetermined amount of the adjacent private lands including those of plaintiffs, to become a Scenic River Area.

Plaintiffs allege in their Complaint that Sections 1501.16-19 of the Ohio Revised Code:

are vague, arbitrary and confiscatory and unconstitutional on their face in that they grant authority to the Director of Natural Resources to regulate and restrict the use of private lands; to supervise, operate, protect and maintain private lands in accordance with his design; to exercise his dominion and control over an unlimited amount of said private lands; and that these acts constitute the taking of private property for public use without payment of just compensation and are contrary to and in violation of the 5th and 14th Amendments of the Constitution of the United States and similar provisions in the Constitution of the State of Ohio. (Plaintiffs' Complaint, at 3-4)

Contrary to plaintiffs' allegations, the clear, unambiguous language of the Act does not permit the director unbridled discretion in the taking of land for public use. The Act specifically provides that the director may expend funds for the purpose of acquiring "real property . . . for protection and public recreational use as wild, scenic, or recreational river area," only when such funds are appropriated by the General Assembly. Ohio Rev. Code § 1501.18. Plaintiffs have not alleged and do not argue that the director plans to acquire their property. Rather, the director has given notice that he simply intends to declare the land in question as a Scenic River Area. Thus, when the Act is read in its entirety, as it properly should be, it becomes clear that the statutory scheme in question does not suffer from any of the constitutional infirmities raised in the Complaint.

In addition to providing compensation for lands sought to be acquired by the director, the Act provides further safeguards for owners of property within a wild, scenic, or recreational river area, as demonstrated by the following provision:

Declaration by the director that an area is a wild, scenic, or recreational river area does not authorize the director or any governmental agency or political subdivision to restrict the use of land by the owner thereof or any person acting under his authority, or to enter upon such land. Ohio Rev. Code § 1501.16.

In light of the clear, unambiguous language of the statutes in question, and the fact that the director has simply announced his [3 ELR 20760] intention to declare land in which plaintiffs' property lies as a Scenic River Area, it is apparent to the Court that there has been no "taking" of plaintiffs' land without just compensation in violation of their Fifth and Fourteenth Amendment rights. Any taking of property pursuant to the Act in its present form would be a valid exercise of the police powers of the State. A long line of cases analogous to the case at bar have held that such an exercise of police power by the State is proper under adequate safeguards and for the purpose of protecting the interests of the general public. Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499 (1894); Noble State Bank v. Haskell, 219 U.S. 104, 31 S. Ct. 186 (1911); City of Euclid v. Ambler Realty Company, 272 U.S. 365, 47 S. Ct. 114 (1926): Goldblatt v. Town of Hempstead, New York, 369 U.S. 590, 82 S. Ct. 987 (1962).

Plaintiffs' further allegation that the creation of a Scenic River Area by the Director results in a "loss of or infringement" without "due process" and has the effect of clouding "their right, title and interest in said lands" is equally without merit. Zoning laws or other ordinances which result in devaluation of property have been held not to be a "taking" without just compensation. Hadachek v. Sebastian, 239 U.S. 394, 36 S. Ct. 143 (1915); Chicago and A.R. Co. v. Tranbarger, 238 U.S. 67, 35 S. Ct. 678 (1915); Danforth v. United States, 308 U.S. 271, 60 S. Ct. 231 (1939); Goldblatt v. Town of Hempstead, New York, supra; City of St. Paul v. Chicago, St. Paul, Minneapolis and Omaha Ry. Co., 413 F.2d 762 (8th Cir. 1969) cert. denied, 396 U.S. 985 (1969); Steel Hill Development v. Sanbornton, 469 F.2d 956 (1st Cir. 1972); Izaak Walton League v. St. Clair, 353 F. Supp. 698 (D.C. Minn. 1973).

Accordingly, in light of the foregoing, It Is Hereby Ordered that the three-judge panel be dissolved and that this action be dismissed at plaintiffs' costs.