COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60901 JOSEPH CASTRATARO, et al : : Plaintiff-appellees : : JOURNAL ENTRY vs. : and : OPINION CITY OF LYNDHURST : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 27, 1992 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Case No. 173,007 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellees: MICHAEL T. GAVIN ELI MANOS ANTHONY J. COYNE Attorneys at Law 2150 Illuminating Building Cleveland, OH 44113-1994 For defendant-appellant: RICK J. CARBONE Attorney at Law 1392 S.O.M. Center Road Mayfield Heights, OH 44124 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, the City of Lyndhurst, timely appeals the decision of the common pleas court which granted the partial motion for summary judgment of plaintiffs-appellees, Joseph and Mary Castrataro. For the reasons that follow, we affirm the decision of the common pleas court. Appellees filed a complaint in the common pleas court seeking compensatory and punitive damages for an alleged unlawful interference in their property rights by the appellant. Appel- lees' complaint further sought injunctive relief to restrain appellant from interfering with appellees and their contractors in removing certain obstructions on Mayfield Road which elimi- nated access to and from appellees' property through the west driveway on appellees' property. Thereafter, appellees filed a motion for partial summary judgment requesting a finding that appellant unlawfully installed barriers eliminating access to Mayfield Road from appellees' west driveway, thereby depriving appellees of a fundamental property right, an order permitting appellees to remove the barriers and enjoining appellant from interfering with the removal of said barriers, and an order enjoining appellant from interfering with the access rights of appellees from their property onto Mayfield Road until further order of court. Appellant duly filed a brief - 2 - in opposition to appellees' motion for summary judgment and a motion for summary judgment arguing, in pertinent part, that there was no taking of any property rights of appellees within the mean-ing of Art. I, 19 of the Ohio Constitution. Subse- quently, appel-lees sought and obtained leave of court to amend their complaint to delete any claims for damages and thereby amend their demand so as to request a permanent injunction only. The trial court initially denied both parties' motions for summary judgment; however, upon reconsideration, the court granted appellees' motion for summary judgment and denied appel- lant's. The pertinent facts are as follows: Appellees are the owners of certain property which has one hundred eighty-six feet of frontage on Mayfield Road and is devoted to the use as a strip shopping center with six attached stores. Prior to October of 1988, appellees shared a common driveway with the Lyndhurst Golf Club, which owned the property abutting appellees' property to the west. Both appellees and the Lyndhurst Golf Club contributed approximately twenty-five feet in width of their own property for a common driveway which, by oral agreement, was used jointly for vehicular ingress and egress to appellees' property and the Lyndhurst Golf Club's property from Mayfield Road. Moreover, a traffic light at Iroquois Avenue and Mayfield Road was situated so as to accommodate north/south vehicular traffic between Iroquois Avenue and the common drive- - 3 - way. A crosswalk extended across Mayfield Road with its northern terminus west of Iroquois Avenue and its southern terminus at the property of the Lyndhurst Golf Club. In addition to the west drive, appellees maintained an east driveway providing ingress and egress to appel-lees' property from Mayfield Road. At some point, the property owned by the Lyndhurst Golf Club was acquired by Fisher & Wald, Inc., which developed the norther- ly part of the property to shopping center use, naming it The Greens of Lyndhurst. By October of 1988, the developers of The Greens of Lyndhurst had constructed a driveway approximately fifty feet in width at the easterly property line, with curbing installed so as to prevent access between The Greens of Lyndhurst and appellees' property. Meanwhile, appellees maintained their west driveway, measuring twenty-five feet in width, exclusively for ingress and egress to Mayfield Road from their property. Also, in October of 1988, appellant commissioned an indepen- dent traffic engineering survey due to the heavy volume of traffic on Mayfield Road by and near the access ways of appel- lees' property and the property of The Greens of Lyndhurst which "recommended [that] the west access drive to the Castrataro property be closed and the property owners REQUIRED to allow access to the new shop-ping center drive ***." Thereafter, on November 30, 1988, appel-lant had barriers placed in the right- of-way on Mayfield Road, preventing access to and from appellees' property onto Mayfield Road over the west driveway on appellees' - 4 - property. Additionally, the crosswalk was relocated by appellant so that its northerly terminus is east of Iroquois Avenue and its southerly terminus is on appellees' property. Finally, appellant shifted the traffic light to regulate traffic over Iroquois Avenue and The Greens of Lyndhurst's east driveway. Access to Mayfield Road to and from appellees' property is still available via the east driveway along appellees' property line; however, appellant eliminated access to Mayfield Road to and from appellees' property on the west driveway by erecting the rele-vant barriers. Based upon the above evidence, the trial court granted appel-lees' motion for summary judgment and denied appellant's. Appel-lant timely appeals, raising three assignments of error for our review. Appellant's assignments of error are interrelated and will be considered jointly. They state: I. THE TRIAL COURT ERRED IN GRANTING SUMMA- RY JUDGMENT FOR APPELLEES BECAUSE, AS A MAT-TER OF LAW, ELIMINATION OF A SINGLE MEANS OF INGRESS AND EGRESS TO APPEL- LEES' PROPERTY, WHERE OTHER ADEQUATE MEANS OF INGRESS AND EGRESS REMAIN, DOES NOT CON-STITUTE A TAKING OF PROPERTY. II. THE TRIAL COURT ERRED IN GRANTING SUMMA- RY JUDGMENT FOR APPELLEES BECAUSE APPEL- LANT'S ACT OF PLACING A BARRIER WITHIN THE RIGHT OF WAY OF A PUBLIC STREET WAS A LAWFUL EXERCISE OF ITS POLICE POWERS PURSUANT TO OHIO REVISED CODE SECTION 723.01. - 5 - III. THE TRIAL COURT ERRED IN NOT GRANTING SUMMARY JUDGMENT FOR APPELLANT AS A MATTER OF LAW. Appellant contends the trial court erred in granting appel- lees' motion for summary judgment and in overruling appellant's motion for summary judgment. Appellant argues its action in constructing the relevant barriers blocking access to and from appellees' property through the west driveway to Mayfield Road constitutes a valid exercise of the police power and not a taking as contemplated by the United States and Ohio Constitutions. Appellant's argument lacks merit. The Fifth Amendment to the United States Constitution, made applicable to the states by virtue of the Fourteenth Amendment, see Penn Central Transportation Co. v. New York (1977), 438 U.S. 104, guarantees that private property shall not "be taken for public use, without just compensation." Similarly, Art. I, 19 of the Ohio Constitution provides, in pertinent part, that "[p]r- ivate property shall ever be held inviolate, but subservient to the pub-lic welfare. *** Where private property shall be taken for pub-lic use, a compensation therefor shall first be made in money ***." With respect to private property interests, the Fourth Dis- trict Court of Appeals, in State, ex rel. Morris, v. Chillicothe (Oct. 2, 1991), Ross App. No. 1720, unreported, at 7-8, observed: The determination that governmental action constitutes a taking is, in essence, a deter- - 6 - mination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest, with the question necessarily re- quiring a weighing of private and public interests. *** Property interests protected by the Fifth and Fourteenth Amendments to the United States Constitution and by Article I, Section 19, of the Ohio Constitution are diverse and extend beyond actual fee owner- ship of real estate, and include the property owner's absolute right of dominion, use or disposition over it. *** [Citations omitte- d.] It has long been recognized that an owner of property abut- ting on a public highway possesses, as a matter of law, not only the right to the use of the highway in common with other members of the public, but also a private right or easement for the purpose of ingress and egress to and from his property, which latter right may not be taken away or destroyed or substantially impaired without compensation therefor. State, ex rel. Merritt, v. Linzel (1955), 163 Ohio St. 97, paragraph one of the syllabus. A property owner's easement of access to the abutting highway is located at any or all points located within his frontage on the highway until such ease-ment is extinguished by proper legal process. In re Easement for Highway (1952), 93 Ohio App. 179, paragraph six of the syllabus. However, the state may, in the lawful exercise of police power, regulate a property owner's easement of access without com-pensation so long as there is no denial of ingress and egres- s. See, Windsor v. Lane Development Co. (1958), 109 Ohio App. 131, 136. To regulate a property owner's easement of access, - 7 - such regulation must be consistent with and promote the safety, comfort, health and general welfare of the public. Id., at 138. The criti-cal issue in cases involving the easement right of access is whe-ther the action taken by the state amounts to a mere regulation to promote the public safety, comfort, health and welfare or whether such action amounts to a compensable taking. See, Morris, supra, at 12. In such cases, the question becomes whether a regulation becomes so substantial as to amount to a taking. In determining whether a taking has occurred, Ohio courts have required a substantial, material or unreasonable interference with the physical access to or from the property. See, Morris, supra, at 13; State, ex rel. Pitz, v. Columbus (1988), 56 Ohio App. 3d 37, paragraphs one and two of the sylla- bus; Norwood v. Forrest Converting Co. (1984), 16 Ohio App. 3d 411, 415; Malavazos v. City of Portsmouth (Dec. 20, 1979), Scioto App. No. CA 1226, unreported; and State, ex rel. Schiederer, v. Preston (1960), 170 Ohio St. 542. In determining whether there has been a substantial interference with the abutting property owner's easement right of access to a public street, Ohio courts have considered the issue in relation to the current improvements existing in the land. Morris, supra, at 13; see, also, e.g. Schiederer, supra, at 545. Thus, the Ohio Supreme Court has held that where an owner of land abutting on a highway has made im- provements thereon with reference to an established grade for that highway, a substantial interference with his right of access - 8 - to those improvements from that highway by a subsequent change of grade of the highway is a taking of property for which compensa- tion must be provided. See, State, ex rel. McKay, v. Kauer (1960), 156 Ohio St. 346. In the present case, appellees maintained two easements of access to and from their property to Mayfield Road via the east and west driveways. For some time, appellees shared a common driveway on the westerly portion of their property with the Lyndhurst Golf Club. Subsequently, The Greens of Lyndhurst blocked appellees' access to their portion of the shared drive- way, thereby forcing appellees to maintain a smaller west drive- way to and from Mayfield Road. Thereafter, appellant constructed the relevant barriers on Mayfield Road, completely blocking appellees' pre-existing easement of access to and from Mayfield Road via the westerly driveway while, at the same time, appellant did not interfere with the ease-ment of access of The Greens of Lyndhurst located near the former shared driveway. Thus, appel- lant took away or destroyed appellees' easement of access to and from Mayfield Road via the westerly driveway. As such, appellant effectuated a taking of appellees' property rights which so substantially hinders appellees' access to and from Mayfield Road as to constitute a compensable taking pursuant to the United States and Ohio Constitutions. Nonetheless, appellant argues that elimination of only one of two means of direct access, as occurred in the present case, - 9 - does not constitute a taking of appellees' property where appel- lees maintain direct access to and from their property to Mayfie- ld Road via the east driveway. Appellant quotes from Merritt, supra, at 102, the following: Mere circuity of travel, necessarily and newly created, to and from real property does not of itself result in legal impairment of the right of ingress and egress to and from such property, where any resulting interfer- ence is but an inconvenience shared in common with the general public and is necessary in the public interest to make travel safer and more efficient. (Emphasis added.) Appellant further contends that the placing of the relevant bar- riers constitutes a legitimate exercise of the police power in order to protect the general safety and welfare of the traveling public and to prevent unnecessary accidents. Appellees, on the other hand, argue that the placement of the relevant barriers does not regulate the flow of traffic on Mayfield Road, thereby producing circuity of travel to and from real proper-ty as contemplated by Merritt, supra, but, rather, regulates the flow of traffic solely on appellees' property. Thus, they argue, the burden is not placed on the general public, nor is the resulting inconvenience shared in common with the general public. Instead, appellees assert, the burden is imposed solely on appellees' property. Appellees' argument is well taken. First, the relevant cases cited by appellant speak in terms of circuity of travel to and from real property. See, Merritt, - 10 - supra (where the conversion of a state highway to a limited access highway and the construction of a service road providing access to and from the real property in question resulted in mere circuity of travel to and from real property and did not amount to a com-pensable taking); New Way Laundry, Inc. v. Toledo (1960- ), 171 Ohio St. 242, paragraph three of the syllabus ("the con- struction of a divider strip in the middle of a highway resulting in the elimination of left turns from and into the abutting property and thereby permitting only right turns and requiring circuity of travel to leave or reach the opposite half of the highway does not constitute an actionable interference with the abutting property owner's right of ingress and egress); State, ex rel. Noga, v. Masheter (1975), 42 Ohio St. 2d 471 (where the Ohio Supreme Court re-affirmed its decision in Merritt on virtually identical facts); and Richley v. Jones (1974), 38 Ohio St. 2d 64 (where the construction of a meridian strip which prevented traffic traveling in an easterly direction from turning onto the property in question resulted in mere circuity of access to real property and did not amount to a compensable taking). In the present case, the construction of the barriers in question, which completely eliminates appellees' pre-existing easement right of access, results in circuity of travel within appellees' proper- ty, and not circuity of travel to and from appellees' property. As such, the burden is placed solely on appellees' property and not on the general public. Appellant argues the general public - 11 - is also burdened in their access to and from appellees' property; however, this burden is shared only by those seeking access to and from appellees' property and, as such, is a burden placed on appellees. Additional authority supports the proposition that the elimi-nation of one of two means of direct access to and from a public road constitutes a taking where the abutting property owner's means of access is substantially impaired. For example, the Court of Appeals for Hamilton County, in Norwood v. Forrest Converting Co. (1984), 16 Ohio App. 3d 411, in relevant part, affirmed an award of damages caused by the city which downgraded an abutting road by thirty feet and built a retaining wall to support the land on either side of the road so that the road would tunnel under nearby railroad tracks where the abutting landowner's means of access to its loading docks was substantial- ly hindered. The court noted "that Forrest Converting's access to (and from) its loading dock has been substantially hindered and there has been a pro tanto taking of its property." Id., at 415. Similarly, the Court of Appeals for Scioto County, in In re Appropriation of Easement (1959), 110 Ohio App. 88, affirmed the trial court's refusal to give a jury instruction which would have prohibited damages to an abutting property owner caused by an improvement to a public road which would limit and restrict the abutting property owner's right of access to such road so long as - 12 - the owner had reasonable and convenient access to the highway after the improvement. In the case cited, the land and the street were on the same level with easy access to the property on most of the front. After the improvement, the only access to the property from the street in question was to be a sixteen-foot entrance located near the center of the frontage. Significantly, access to the street in question also existed from an alley on the east side of the property as well. In determining the dam- ages to the residue of the property, the court stated "the jury was entitled to consider the situation in regard to the frontage of the property after the improvement. This has no relation to the flow of traffic past the owner's property." Id., at 93. (Emphasis added.) The case of Starr v. Linzell (C.P. 1955), 71 O.L.A. 84 is even closer on point. In Starr, the plaintiffs owned a service station and bus station at a corner of an intersection which enjoyed un-limited access for more than twenty-five years to both roads form-ing the intersection. Plaintiffs brought suit seeking an injunction to prevent the defendant from constructing a barri- cade or island along said business, the effect of which would be to limit access to and from the business to one of the roads in the intersection. It was uncontroverted that after the obstruc- tion was erected, there would still remain access at the west end and east end of plaintiffs' property. Much like appellant in the present case, the defendant contended he could do this construc- - 13 - tion under the state's "police powers within the limits of an existing highway without regard to the law of damages or compen- sation to an abutting property owner. The trial court, citing to Merritt, supra, held the defendant's actions would directly impair the owner's access, constituting an unconstitutional encroachment and resulting in damage to the property owner. In the present case, the barriers in question, as a matter of law, constitute a substantial interference in appellees' dominion and control of their easement of access, which consti- tutes a compensable taking of property. Although the barriers in question arguably regulate the flow of traffic on Mayfield Road, this does not diminish nor negate the fact that they also sub- stantially interfere with a recognized pre-existing property right of appellees. This is not a case which merely creates circuity of travel to and from appellees' property. Rather, this case creates cir-cuity of travel within appellees' property and is a burden placed solely on appellees. Accordingly, the trial court did not err in granting appel- lees' motion for summary judgment. Appellant's three assignments of error are not well taken. Judgment affirmed. - 14 - It is ordered that appellees recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, J. CONCURS HARPER, J. DISSENTS (See attached opinion) PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60901 : JOSEPH CASTRATARO, ET AL. : : : Plaintiff-Appellees : : DISSENTING -vs- : : OPINION CITY OF LYNDHURST : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 27, 1992 HARPER, J., DISSENTING: I respectfully dissent from the majority opinion. I have considerable difficulty in subscribing to the majority's holding that the City of Lyndhurst's action as a matter of law consti- tuted a compensatory taking. Summary judgment should not be so easily granted especially in the within case where there are material facts in dispute which were not fully litigated and that may not be so favorable to appellee when litigated. There is no absolute power vested on a property owner, either by the consti- tution or statute, to have two separate means of ingress and - 2 - egress. See Windsor v. Lane Div. Co. (1958), 109 Ohio App. 131. It is incumbent on the party charging a compensatory taking to show that he was substantially and unreasonably deprived of a permitted use of his property. See Duncan v. Village of Middlef- ield (1986), 23 Ohio St.3d 83. Where the government uses its legitimate police power of regulation, its conduct cannot constitute a taking without a clear showing by the property owner that he would suffer substan- tial detriment as a result of the city's action. See Northern Boiler Co. v. David (1952), 157 Ohio St. 564, 470 O.O. 416. As in this case where the city demonstrates a potential danger to the public safety without the regulation, a mere showing of inconvenience by the property owner is insufficient to show a compensatory taking. An independent survey shows that the construction of the shopping center poses danger to drivers and pedestrians. The city has an obligation to protect its citizens and an action taken to protect the public cannot be a taking without a showing of substantial interference. In observing the spirit of an ordinance and attempting to do substantial justice, a reviewing court necessarily must weigh the competing interests of the property owner and the community. Kasil v. Sandusky (1984), 12 Ohio St.3d 30, 34. The issue, therefore, of whether appellee has reasonable and convenient access to the highway is a proper issue for the trier of fact and should not be summarily decided. Appellee also must - 3 - show sufficient evidence that the city's action denied him the economically viable use of his property, and mere allegation is insufficient. Appellee also alleged that the city plays favoritism in the implementation of its regulations. If such an allegation is found to be true, it is a violation of a constitutionally pro- tected right which further renders summary judgment inappropri- ate. In conclusion, appellee has failed to demonstrate that there are no factual issues to be litigated and that it deserves judg- ment as a matter of law. There being no evidence that actual property was taken or a taking of property rights demonstrated, we are obligated to reverse and remand this case to the trial court to be heard on its merits. Accordingly, I dissent. .