What Must a Petition to Appropriate Include?
Ohio Revised Code section 163.05 sets forth seven specific matters that the Condemning Authority’s Petition to Appropriate—also called a Complaint—is required to contain:
1. Description of Property
The condemning authority’s petition to appropriate must contain a description of each parcel of land or interest of right therein sought to be appropriated, as such as will permit ready identification of the land involved. Ohio Rev. Code § 163.05(A). It is customary practice in Ohio for condemning authorities to attach to the petition and incorporate therein a metes and bounds description of the property prepared by a registered surveyor. The petition need only describe the property to be appropriated, and need not describe the entire parcel of which the appropriated property is a part. The description must be definite, however, e.g., “floating easements” are not permitted.
2. Statement of the Estate or Interest Sought to Be Appropriated
This provision is, of course, of great importance to the property owner whose land is being appropriated. Without such a statement, it is impossible for the property owner to determine the value of that which is being taken from him. In most cases, the estate or interest to be appropriated would be either a fee simple or an easement. It would appear from Ohio case law that it is sufficient for the condemning authority merely to state its intent to appropriate defendant’s entire interest in the property described in the complaint, without specifying the exact nature of that interest. Thus, a complaint is not defective if the condemning authority states that it intends to acquire the defendant’s entire interest, but does not state whether certain personal property has attained the status of a fixture, and therefore is subject to the taking or remains personal property. This is a matter to be determined in the just compensation portion of the trial and not at the initial pleadings stage. A similar rule should hold in cases where the condemning authority seeks to appropriate both present and future interests, for example, a life estate and remainder. So long as all the owners of interest in the property are identified and named as defendants, it should be sufficient for the condemning authority simply to state its intent to appropriate the entire interest in the property.
3. Statement of Public Purpose
The complaint must contain a statement of the purpose for the appropriation. Ohio Rev. Code § 163.05(C). The rationale for this requirement is to place the property owner in a position to be able to defend against the appropriation. This element requires only a general statement of the purpose and does not require a detailed description. The condemning authority is not required to state the policy rationale or background reasons that motivate it to request the appropriation.
The statement of purpose must be sufficient to support the appropriation of the entire parcel described in the complaint. Similarly, a condemning authority cannot engage in excess condemnation without first providing a specific explanation of the purpose for taking the excess land. This would be a violation of the property owner’s constitutional rights upon the ground that it was not a taking for a public use. Mere broad statements by the condemning authority that the take is "in furtherance of the public use," or "for the more complete enjoyment and preservation of the benefits to accrue from said public use." are not sufficient.
4. Statement of Necessity
To show that the appropriation is necessary, section 163.05 of the Ohio Revised Code provides various requirements in the complaint depending on the type of condemning authority. First, a private sector condemning authority must provide a statement in the complaint that the appropriation is necessary, whereas a public sector, i.e., governmental, condemning authority must only furnish a copy of the resolution attached to the complaint. Ohio Rev. Code § 163.05(B).
The condemning authority may provide for not only its present but also its prospective necessities if it is not more than may in good faith be presumed necessary for future use within a reasonable period of time.
5. The Names and Addresses of the Owners
As in any civil action, the names and addresses of the owners must be specified so that service may be obtained upon them and notice of their liability to lose title to their property via the appropriation may be given. “Owner” is a defined term and includes any individual partnership, association, or corporation having any estate, title, or interest in any real property sought to be appropriated. Ohio Rev. Code § 163.01. Thus, owners include all those shown as record title holders to the property. It also includes statutory lienors, for example, the county auditor who has a lien for unpaid property taxes, and consensual lienors such as mortgagees and judgment creditors. Owners also include those having merely possessory interest in the property such as life tenants, lessees, and easement holders. One holding an option to purchase real property is also an owner for purposes of section 163.05.
6. Statement Showing the Requirements of Section 163.04 Have Been Met
The requirements of Ohio Revised Code section 163.04 are a condition precedent to filing the appropriation petition and have been discussed above. The petition must contain a statement that those requirements have been satisfied.
7. Prayer for the Appropriation
The petition must contain a prayer in which the condemning authority seeks relief in the form of title to the estate or interest sought to be appropriated. Ohio Rev. Code § 163.05(G).