[Cite as Bd. of Cty. Commrs. v. Prindle, 2018-Ohio-1452.]


                                   IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


THE BOARD OF COUNTY                                     :   OPINION
COMMISSIONERS,
                                                        :
                 Plaintiff-Appellee,                        CASE NOS. 2016-T-0117
                                                        :             2016-T-0118
        - vs -
                                                        :
VINCENT PRINDLE, et al.,
                                                        :
                 Defendants-Appellants.
                                                        :


Civil Appeals from the Trumbull County Court of Common Pleas, Case Nos. 2015 CV
02094 and 2014 CV 00354.

Judgment: Affirmed.


Dennis Watkins, Trumbull County Prosecutor, Administration Building, Fourth Floor,
160 High Street, N.W., Warren, OH 44481; and James M. Brutz, Assistant Prosecutor,
842 Youngstown-Kingsville Road, Vienna, OH 44473 (For Plaintiff-Appellee).

Frank R. Bodor, 157 Porter Street, N.E., Warren, OH              44483 (For Defendants-
Appellants).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellants, Vincent Prindle and Vickie Prindle, appeal the judgment of the

Trumbull County Court of Common Pleas in favor of appellee, The Board of County

Commissioners (“the county”), denying appellants’ complaint for a writ of mandamus.

At issue is whether the trial court abused its discretion in denying the writ and in finding
that appellants failed to present clear and convincing evidence of a permanent taking of

access rights to their property. For the reasons that follow, we affirm.

        {¶2}   On February 19, 2014, the county filed, in Case No. 2014-CV-00354, a

petition for appropriation of a temporary easement on appellants’ commercial real

property located on High Street in Cortland to perform the work necessary to

reconstruct a walk, drive, parking lot, and grading in connection with a county road-

widening project. The easement was to last for 18 months from the date of entry by the

county. Appellants filed an answer denying the material allegations of the complaint.

        {¶3}   While the appropriation case was pending, the road-widening project

began in late October 2014, and was completed one month later in late November

2014.

        {¶4}   On November 25, 2015, after the county’s appropriation case had been

pending for nearly two years, appellants filed, in Case No. 2015-CV-02094, a separate

action for a writ of mandamus.      They alleged that, during the county’s use of the

temporary easement, it installed curbing along appellants’ property in the road right of

way. They alleged the curbing blocks appellants’ vehicular access to the building on the

property. Appellants demanded a writ of mandamus to compel the county to amend its

appropriation action to include a taking of appellants’ access rights. The county filed an

answer denying the material allegations of the complaint.

        {¶5}   On March 16, 2016, the trial court consolidated the county’s appropriation

action with appellants’ mandamus action. Each case had its own trial docket until the

two actions were consolidated, after which, the case proceeded on the appropriation

case docket. Following a trial, the court resolved the mandamus action by a judgment




                                             2
entered pursuant to Civ.R. 54(B), and the appropriation action remains pending. On

appeal, appellants filed two notices of appeal, one for each of the cases. Both notices

state that the judgment being appealed is the court’s judgment denying appellants’

complaint for a writ of mandamus. While the appeals were pending, this court, sua

sponte, consolidated them for all purposes, and the parties’ respective briefs included

both appellate case numbers. The only issues raised on appeal involve the mandamus

action.

          {¶6}   The matter was referred to the magistrate, who held a trial on appellants’

complaint for mandamus on July 14 and 15, 2016.

          {¶7}   Vincent Prindle testified that he took title to the property as a gift from his

mother-in-law in 2009. He said that the store-front building on the property was built in

1960 by his father-in-law, and that since that time it has been used as a laundromat, a

church, a music store, and, finally, a used furniture store operated by appellants’ most

recent tenant, Patti Keller.

          {¶8}   Mr. Prindle said that, before the construction project, there was no curbing

in front of the property. He said that during the project, curbing was installed along the

front of the property, except for access to the parking lot on the north (left) side of the

building. He said that at the front of the building, there is a ramp leading to the main

entrance, which is a set of double doors. He said that, due to the curb, there is no way

to drive directly from the street to the ramp for loading/unloading. He said that for this

reason, Ms. Keller moved out of the building.

          {¶9}   Mr. Prindle said the parking lot on the north side of the building continues

to provide ingress and egress for the building. He said the building can still be entered




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through the ramp and main entrance at the front of the store. He said the building can

also be accessed through a door on the north side of the building. He said he could not

recall if he lost any parking spots in the parking lot due to the project. He said that

before the construction project, patrons of the property who parked in front of the

building exited the property by backing into the road. He was not aware of Cortland’s

ordinance prohibiting this practice.

       {¶10} Mr. Prindle said that since Ms. Keller left the building in September 2014,

he has not listed the property for sale or rent and he now uses the building for storage.

       {¶11} Patti Keller testified she owns a used furniture business. She said she

operated her business out of appellants’ building from 2009 to September 2014.

       {¶12} Ms. Keller said that before the road-widening project, she used the ramp

in front of the main entrance to load and unload furniture by backing her box truck from

the road onto the ramp. She said her employees then brought the furniture down the

ramp and put it in the truck. She said that before the project, there were two parking

spaces in front of the building. She also had full use of the parking lot.

       {¶13} Ms. Keller said that she moved out of the building in late September 2014,

when she saw the future plans for the project, which included the installation of curbing

along the front of the store. She said she moved out within days of seeing these plans

because she would no longer be able to load/unload her truck at the main entrance and

she would lose the two parking spaces in front of the store. Work on the project did not

begin until late October 2014, one month after she moved out.

       {¶14} Gary Shaffer, Trumbull County Deputy Engineer and project manager for

the road-widening project, testified that the county used the temporary easement in front




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of the building to store materials and equipment. Although the term of the easement

was for 18 months, the county only used it for about one month from October 30, 2014

to November 26, 2014, when work on the project was completed.

       {¶15} Mr. Shaffer said that the county can do virtually anything it chooses for the

public good within the road right-of-way.

       {¶16} Mr. Shaffer said that during construction of the project, a six-inch curb was

built at the edge of the road within the right of way along the frontage of appellants’

property, except for the entrance to the parking lot on the north side of the building.

Next to the curb, a two-foot wide tree lawn and then a sidewalk were installed. He said

the right-of-way extends one foot past the edge of the sidewalk, which means the right

of way comes right up to the base of appellants’ ramp.

       {¶17} While Mr. Shaffer testified that the curbing is an obstruction to the front of

the building, he also said that, after the project, the driveway leading to the parking lot

continues to provide ingress and egress access to the property.

       {¶18} Donald Whitman, Cortland Safety Director, who is also a professional

engineer and attorney, testified that curbing was installed to match curbing installed on

other streets in the city consistent with Ohio Department of Transportation policies. He

said that during the design process for the instant project, a public meeting was held on

December 5, 2011, to solicit public comment from affected property owners and that Mr.

Prindle attended that meeting. Mr. Whitman said that during the meeting, plans were

displayed for the public, depicting the proposed curbing in front of appellants’ property.

Mr. Prindle admitted that he attended the meeting; that he was provided with a copy of

the plans; and that he never complained about the proposed curbing.




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       {¶19} Mr. Whitman said that curbing is a standard practice according to the Ohio

Department of Transportation Location and Design Manual for urban roads with low

speed limits. He said that since the speed limit is 35 mph in the area, curbing was

necessary for the safety of vehicular movement.

       {¶20} Mr. Whitman referenced Cortland Ord. 1125.09(d), effective 1996, which

provides: “All [commercial] off-street parking * * * shall be designed so that vehicles can

turn around within the area and enter the street, road, or highway in such a manner as

to completely eliminate the necessity of backing into the street, road, or highway.” Mr.

Whitman said that Ord. 1125.09(d) “requires businesses to have a parking area design

so that vehicles can turn around completely on that property prior to entering the road

right of way [to] eliminate the necessity of backing into the street, road, or highway.”

(Emphasis added.)      He said the purpose of this ordinance is for the safety of the

motoring public.

       {¶21} Further, Ord. 1125.09(e) requires that commercial property owners

provide off-street parking spaces in compliance with the dimensions specified.

       {¶22} Mr. Whitman said that appellants did not lose any parking spaces in front

of the building as a result of the curbing because, even before the curbing, the front of

the building could not legally be used for parking. This is because backing a car out into

the road (which Mr. Whitman indicated would be necessary to enter the road) would

violate the city’s parking regulations.

       {¶23} Mr. Whitman said that when a new business comes into the city, he

explains the parking requirements to the owner. He said that when Ms. Keller moved in,




                                            6
he told her she could not park in front of the building and that she could only park in the

parking lot.

       {¶24} On July 25, 2016, the magistrate issued her decision recommending that

the writ of mandamus be denied.        In support, the magistrate found that, after the

construction, access remains to the frontage of the property and that, as such, access

to the property from High Street was not destroyed or substantially impaired. Further,

the magistrate found that parking in front of the building was prohibited by the city’s

parking ordinances.

       {¶25} Appellants filed objections to the magistrate’s decision.          The court

overruled the objections and adopted the magistrate’s decision. The court found that

appellants failed to show they had a clear legal right to a writ of mandamus and denied

the writ. The court made the finding under Civ.R. 54(B) that there is no just reason for

delay, making its judgment a final, appealable order. Appellants appeal the trial court’s

judgment, asserting three assignments of error.       Because the assigned errors are

related, they are considered together. They allege:

       {¶26} “[1.] The magistrate and trial court committed prejudicial error and abused

its [sic] discretion in determining that access to the Prindles’ property from High Street

was not destroyed or substantially impaired.

       {¶27} “[2.] The magistrate and trial court committed prejudicial error and abused

their discretion in applying city of Cortland Ordinance 1125.09(d) to deprive the owners

of a writ of mandamus for the taking of their access rights.

       {¶28} “[3.] The magistrate and trial court committed prejudicial error and absued

[sic] its [sic] discretion in applying Cortland Ordinance 1125.02 and 1125.09 and




                                            7
determining that the owners [sic] use of the parking spaces did not constitute a non-

conforming use as a reason to deprive the owners of a writ of mandamus for the

blocking of its access.”

       {¶29} The Tenth District, in State ex rel. BDFM Co. v. Ohio Department of

Transportation, 10th Dist. Franklin No. 11AP-1094, 2013-Ohio-107, stated:

       {¶30} In the context of a taking, “The United States and Ohio
             Constitutions guarantee that private property shall not be taken for
             public use without just compensation. * * * Mandamus is the
             appropriate action to compel public authorities to institute
             appropriation proceedings where an involuntary taking of private
             property is alleged.” State ex rel. Shemo v. Mayfield Hts., 95 Ohio
             St.3d 59, 63 (2002) * * *. Because “[m]andamus is an extraordinary
             writ that must be granted with caution,” a party seeking a writ of
             mandamus must “establish entitlement to the requested
             extraordinary relief by clear and convincing evidence.” State ex rel.
             Liberty Mills, Inc. v. Locker, 22 Ohio St.3d 102, 103 (1986); State
             ex rel. McCaffrey v. Mahoning Cty. Prosecutor’s Office, 133 Ohio
             St.3d 139, 2012-Ohio-4246, ¶16 * * *. BDFM at ¶14.

       {¶31} Further, this court, in RG Steel Warren, L.L.C. v. Biviano, 11th Dist

Trumbull No. 2014-T-0064, 2015-Ohio-5463, ¶59, stated:

       {¶32} In order to be entitled to a writ of mandamus, a relator must
             establish: (1) a clear legal right to the relief sought, (2) a clear legal
             duty on the part of the respondent to perform the requested act,
             and (3) the lack of an adequate remedy in the ordinary course of
             the law. State ex rel. United Auto., Aerospace & Agricultural
             Implement Workers of Am. v. Bur. of Workers’ Comp., 108 Ohio
             St.3d 432, 2006-Ohio-1327, ¶34. The relator bears a heavy burden
             in a mandamus case and must submit facts and produce proof that
             is plain, clear, and convincing before a court is justified in using the
             “strong arm of the law” by granting a writ of mandamus. State ex
             rel. Pressley v. Indus. Comm. of Ohio, 11 Ohio St.2d 141, 161
             (1967). Further, mandamus is * * * issued only when the right and
             duty are absolutely clear; the writ will not issue in doubtful cases.
             State ex rel. E. Cleveland v. Norton, 8th Dist. Cuyahoga No. 98772,
             2013-Ohio-3723, ¶2, citing State ex rel. Taylor v. Glasser, 50 Ohio
             St.2d 165 (1977). (Emphasis added.)




                                              8
       {¶33} Thus, appellants, as the parties seeking a writ of mandamus, had the

burden to prove their entitlement to the writ by clear and convincing evidence. As such,

they were required to prove that they had a clear legal right to compensation for a

permanent taking of access rights to their property; that the county had a clear legal

duty to compensate them for such alleged taking; and that appellants had no adequate

remedy at law.

       {¶34} With respect to the issues presented here, the Tenth District, in Vineyard

Fellowship v. Anderson, 10th Dist. Franklin Nos. 15AP-151, 15AP-230, 2015-Ohio-

5083, discussed the city’s authority under a public right-of-way, as follows:

       {¶35} The term “right-of-way” “is generally understood as referring to the
             easement acquired by the public in that portion of the land of the
             owner thereof over which a road or highway passes, with all the
             powers and privileges that are necessarily incident to such
             easement.” 1988 Ohio Atty.Gen.Ops. No. 88–080 * * *.

       {¶36} * * *

       {¶37} [N]ormally this right-of-way would include the shoulder or berm.
             R.C. 4511.01(UU)(2) defines “[r]ight-of-way” as “[a] general term
             denoting land, property, or the interest therein, usually in the
             configuration of a strip, acquired for or devoted to transportation
             purposes. When used in this context, right-of-way includes the
             roadway, shoulders or berm, ditch, and slopes extending to the
             right-of-way limits under the control of the state or local authority.”

       {¶38} * * *

       {¶39} In Ohio, “while the public has the right of improvement and
             uninterrupted travel, the abutting owner has the right to all uses of
             the land not inconsistent with this right of travel and improvement.”
             Callen v. Columbus Edison Elec. Light Co., 66 Ohio St. 166, 172
             (1902). “‘ * * * The abutting owner has every right to all uses of the
             land not inconsistent with such right of improvement and travel, or
             with the rights of access thereto of other abutting owners.’” Miller v.
             Berryhill Nursery Co., 7 Ohio App.2d 30, 33 (2d Dist.1966), quoting
             27 Ohio Jurisprudence 2d 207, Highways and Streets, Section 165.




                                             9
       {¶40} The easement for a public highway includes the right to construct,
             maintain, and improve a safe and convenient roadway. “The [City]
             has the right to improve and use the land upon which a common
             highway has been established.” State ex rel. E. Ohio Gas Co. v.
             Bd. of Cty. Comm. of Stark Cty., 5th Dist. Stark No. 2012 CA
             00019, 2012-Ohio-4533, ¶40.

       {¶41} There was testimony in the record that the City could install
             sidewalks along Cooper Road and, under Ohio law, the sidewalk
             would then also be considered part of the street and the public
             right-of-way. * * * Pretzinger v. Sunderland, 63 Ohio St. 132, 140
             (1900) (sidewalk considered part of street). (Emphasis added.)
             Vineyard, supra, at ¶28-35.

       {¶42} Since the grant or denial of a writ of mandamus necessarily requires the

trial court to exercise discretion, an appellate court reviews such decision under the

abuse of discretion standard. BDFM at ¶13.

       {¶43} I. THE RAMP AND MAIN ENTRANCE TO THE BUILDING

       {¶44} Here, the trial court, in adopting the magistrate’s decision, found: “In the

case at bar, after construction there remains access to the frontage of the property to

the north of the building. As such, the [court] cannot find that access to the property

from High Street was destroyed or substantially impaired.”

       {¶45} Appellants do not dispute that they still have access to the parking lot as

well as the ramp and main entrance to the building. Rather, they argue the county’s

installation of curbing during the project destroyed their access from the street directly to

the ramp/main entrance for loading/unloading without creating an alternative access.

However, appellants’ argument lacks merit because they still have access to the

ramp/main entrance from High Street just a few feet to the left of the ramp.

       {¶46} Photographs of the front of the building, taken after construction was

completed, show a large paved area between the driveway (leading to the parking lot)




                                             10
and the ramp (leading to the main entrance). These photographs show the driveway

provides direct and unobstructed access from the street to the side of the ramp. The

driveway and paved area next to the ramp are clearly large enough and close enough to

the ramp for a truck to back up to the side of the ramp.          Cortland Safety Director

Whitman testified the city’s parking regulations allow vehicles to back into a driveway or

parking lot of a business from the street. Thus, after the construction project, appellants

and users of their property can back their trucks from the street into the driveway and

then to the side of the ramp to be loaded or unloaded. They can then legally exit the

property by driving forward into the street.

       {¶47} Ms. Keller testified that her box truck would “back up to the ramp” and “we

would bring stuff down the ramp this way and [put it] into the box truck.” With the truck

backed up to the side of the ramp, appellants can just as easily load or unload the truck

from that location. Thus, contrary to appellants’ argument, the curbing did not prevent

them from using the ramp and main entrance to load and unload merchandise. As a

result, there was no taking because, after the construction, trucks can still be loaded

and unloaded at the ramp.

       {¶48} Appellants’ reliance on State ex rel. OTR v. Columbus, 76 Ohio St.3d 203

(1996), and Hilliard v. First Industrial, L.P., 158 Ohio App.3d 792, 2004-Ohio-5836 (10th

Dist.), is misplaced as those cases are easily distinguishable.    In OTR, the Court held

that re-grading of the city street resulted in a taking because it prevented an abutting

business owner from ever having access to the street. Id. at 209. In Hilliard, a taking

occurred where the city’s construction project destroyed a road leading to the property’s

loading dock without creating an alternative road to the dock. Id. at 794.




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       {¶49} II. PARKING IN FRONT OF THE BUILDING

       {¶50} Turning now to appellants’ argument that the county has deprived them of

the right to use the front of their building for parking, this argument also lacks merit.

       {¶51} The trial court found that because appellants took title to the property in

2009, which was long after the effective date of Ord. 1125.09, that ordinance applies to

them. Appellants essentially make two arguments in support of their position that they

are entitled to park in front of the building. Under the first, they argue that, without the

curbing, they could comply with Ord. 1125.09(d). Under the second, they argue this

ordinance does not apply to them. Both arguments lack merit.

       {¶52} First, appellants try to show that, without the curbing, it was possible to

design parking so as to comply with Ord. 1125.09(d). As noted above, that section

requires that all off-street commercial parking “be designed so that vehicles can turn

around within the area and enter the street * * * in such a manner as to completely

eliminate the necessity of backing into the street * * *.”

       {¶53} Appellants argue that, before the curbing, vehicles parked in front of the

building could be angled in such a way as to avoid encroaching in the right-of-way. In

making this argument, they rely on Deputy Engineer Shaffer’s testimony that if vehicles

were parked at a “severe” angle (nearly parallel to the front of the building), they could

avoid being in the right-of-way. However, even if parking at an angle would avoid

encroaching in the right-of-way, this does not mean cars would have enough room to

turn around on appellants’ property before entering the street without backing into it, as

required by the ordinance.




                                             12
         {¶54} Since the right of way comes right up to the ramp making it impossible for

appellants to turn around on their property, they argue the ordinance should be

interpreted to allow them to back up into the right-of-way and use both their property

and the right-of-way to turn around before entering the street. However, according to

the clear terms of the ordinance, vehicles are required to turn around on the owner’s

property before they enter the street.     Further, nothing in the ordinance suggests the

right of way can be used to turn around. According to Safety Director Whitman, the

right-of-way is owned by the city. Thus, it is to be used for public uses, such as streets,

curbs, tree lawns, and sidewalks, not for private uses. If the right-of-way could be used

to turn around, this would defeat the purpose of the ordinance – to promote the safety of

the motoring public. Further, as Mr. Whitman said, Ord. 1125.09(d) requires businesses

like appellants’ to have a parking area design so that vehicles can turn around

“completely” on that property before exiting the property.

         {¶55} Further, pursuant to the case law outlined above, the city had the right to

install the curb, tree lawn, and sidewalk within the right-of-way and, once installed,

appellants could not use the right-of-way to turn around because this would be

inconsistent with the city’s right of improvement and uninterrupted travel. Vineyard,

supra.

         {¶56} We agree with the trial court’s finding that appellants failed to prove that,

without the curbing, it is possible to design parking spots in front of the building so that

vehicles could turn around within the area and enter the street without having to back

out, as required by Ord. 1125.09(d). Thus, appellants had no right to park in front of the




                                             13
building and the city’s improvement project did not result in a taking of such alleged

right.

         {¶57} We also agree with the trial court’s finding that appellants failed to prove

they were entitled to park in front of the building because they failed to prove that

parking there could satisfy the size requirements for parking spaces in Ord. 2511.09(e).

         {¶58} Second, appellants argue (somewhat awkwardly) that since the prior

tenants were commercial, they, i.e., appellants, should be permitted to park in front of

the building as a nonconforming use without having to comply with Ord. 1125.09(d).

         {¶59} A nonconforming use is a lawful use of property in existence at the time of

enactment of a zoning ordinance that does not conform to the requirements under the

new ordinance. Janson v. John Bininato, Zoning Inspector, 11th Dist. Ashtabula Nos.

2015-A-0039 and 2015-A-0040, 2016-Ohio-2796, ¶24. Appellants fail to cite any case

law holding that the nonconforming use doctrine applies to matters of public safety,

such as regulations prohibiting the practice of backing out into a public street. Further,

appellants failed to prove that at the time Ord. 1125.09(d) was enacted, parking in front

of the building was lawful, i.e., that it was in compliance with all land use or other

applicable regulations.     Moreover, Mr. Whitman indicated that any such use was

abandoned under Ord. 1125.02 because, after 1125.09(d) was enacted, the property

was vacant for more than two years before Ms. Keller moved in.        We therefore agree

with the trial court’s finding that appellants failed to prove that parking in front of the

building constitutes a nonconforming use allowed under Ord. 1125.02.

         {¶60} Further, appellants’ argument that Ord. 1125.02(b), which provides that a

nonconforming use may be changed to a conforming use, is irrelevant. This provision




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applies when a property owner uses a parcel for a nonconforming use (e.g., a

commercial use in a district zoned residential) and later decides to use the property for

a residential use.    Under Ord. 1125.02(b), the residential use would be allowed.

However, since there is no dispute that appellants’ property is zoned commercial and

has previously been used for commercial purposes, Ord. 1125.02(b) does not apply.

       {¶61} Finally, appellants argue that Ord. 1125.09(d) is unconstitutional because

it confiscates appellants’ alleged “back-out” rights without compensation. However, the

issue was not litigated in trial and appellants fail to demonstrate on appeal that they had

a right to back out into the street or that Ord. 1125.09(d) is unconstitutional.

       {¶62} Based on the record, the trial court did not abuse its discretion in denying

appellants a writ of mandamus and in finding they failed to present clear and convincing

evidence that the county destroyed or substantially impaired their access to the main

entrance or to the front of the building for parking.

       {¶63} For the reasons stated in this opinion, the assignments of error are

overruled. It is the order and judgment of this court that the judgment of the Trumbull

County Court of Common Pleas is affirmed.



THOMAS R. WRIGHT, P.J., concurs in judgment only,

COLLEEN MARY O’TOOLE, J., dissents.




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