As Introduced

134th General Assembly

Regular Session H. B. No. 698

2021-2022

A BILL

To amend sections 163.01, 163.021, 163.04, 163.09, 163.16, 163.19, 163.21, 163.52, 163.59, and 163.62 and to enact section 163.221 of the Revised Code to amend the law regarding eminent domain.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 163.01, 163.021, 163.04, 163.09, 163.16, 163.19, 163.21, 163.52, 163.59, and 163.62 be amended and section 163.221 of the Revised Code be enacted to read as follows:

Sec. 163.01. As used in sections 163.01 to 163.22 of the Revised Code:

(A) "Public agency" means any governmental corporation, unit, organization, instrumentality, or officer authorized by law to appropriate property in the courts of this state.

(B) "Private agency" means any corporation, firm, partnership, voluntary association, joint-stock association, or company that is not a public agency and that is authorized by law to appropriate property in the courts of this state.

(D) "Court" means the court of common pleas or the probate court of any county in which the property sought to be appropriated is located in whole or in part.

(E) "Owner" means any individual, partnership, association, or corporation having any estate, title, or interest in any real property sought to be appropriated.

(F) "Real property," "land," or "property" includes any estate, title, or interest in any real property that is authorized to be appropriated by the agency in question, unless the context otherwise requires.

(G) "Public utility" has the same meaning as in section 4905.02 of the Revised Code and also includes a public utility owned or operated by one or more municipal corporations, an electric cooperative, and an agency holding a certificate of public convenience and necessity granted by the federal energy regulatory commission.

(H)(1) "Public use" does not include any taking that is for conveyance to a private commercial enterprise, economic development, or solely for the purpose of increasing public revenue, unless the property is conveyed or leased to one of the following:

(a) A public utility, municipal power agency, or common carrier;

(b) A private entity that occupies a port authority transportation facility or an incidental area within a publicly owned and occupied project;

(c) A private entity when the agency that takes the property establishes by a preponderance of the evidence that the property is a blighted parcel or is included in a blighted area.

(2) "Public use" does not include the use of property for recreational trails, which are trails used for hiking, bicycling, horseback riding, ski touring, canoeing, or other nonmotorized forms of recreational travel.

(3) All of the following are presumed to be public uses: utility facilities, roads, sewers, water lines, public schools, public institutions of higher education, private institutions of higher education that are authorized to appropriate property under section 3333.08 of the Revised Code, public parks, government buildings, port authority transportation facilities, projects by an agency that is a public utility, and similar facilities and uses of land.

(I) "Electric cooperative" has the same meaning as in section 4928.01 of the Revised Code.

(J) "Good faith offer" means the written offer that an agency that is appropriating property must make to the owner of the property pursuant to division (B) of section 163.04 of the Revised Code before commencing an appropriation proceeding.

(K) "Goodwill" means the calculable benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality, and any other circumstances that result in probable retention of old, or acquisition of new, patronage.

(L) "Municipal power agency" has the same meaning as in section 3734.058 of the Revised Code.

(M) "Port authority transportation facility" means any facility developed, controlled, or operated by a port authority for the purpose of providing passenger, cargo, or freight transportation services, such as airports, maritime ports, rail facilities, transit facilities, and support facilities directly related to any airport, maritime port, rail facility, or transit facility.

(N) "Making or repairing roads" does not include the making or repairing of, or access management for, shared-use paths, bike paths, or recreational trails.

Sec. 163.021. (A) No agency shall appropriate real property except as necessary and for a public use. In any appropriation, the taking agency shall show by ~~a preponderance of the~~ clear and convincing evidence that the taking is necessary and for a public use.

(B) Before an agency appropriates property based on a finding that the area is a blighted area or a slum, the agency shall do both of the following:

(1) Adopt a comprehensive development plan that describes the public need for the property. The plan shall include at least one study documenting the public need. All of the costs of developing the plan shall be publicly financed.

(2) If the agency is governed by a legislative body, obtain a resolution from that legislative body affirming the public need for the property.

(C) No park board, park district, board of directors of a conservancy district, incorporated association with a purpose of establishing or preserving public parks and memorial sites, or similar park authority shall exercise any power of eminent domain to appropriate real property outside the county or counties in which the park authority is located unless the appropriation has the written approval of the legislative authority of each county in which the property is located, other than the county or counties in which the park authority is located.

(D) No agency shall appropriate property based on a finding that the parcel is a blighted parcel or that the area is a blighted area or slum by making that finding in, or in conjunction with, an emergency ordinance or resolution.

(E) If an appropriation is by a public agency that is not elected and an owner has provided the public agency with a written objection to the appropriation, the elected officials of the public agency or elected individual that appointed the unelected agency may veto that appropriation. If the unelected public agency was appointed by more than one public agency or elected individual, a majority vote of the elected officials of the appointing public agencies or elected individuals is required to veto the appropriation. If the public agency that is not elected is a state agency or instrumentality such as a university, the governor has the veto authority. The governor may delegate that authority but may not delegate that authority to the unelected agency that seeks the appropriation.

Sec. 163.04. (A) At least thirty days before filing a petition pursuant to section 163.05 of the Revised Code, an agency shall provide notice to the owner of the agency's intent to acquire the property. The notice shall be substantially in the form set forth in section 163.041 of the Revised Code. The notice shall be delivered personally on, or by certified mail to, the owner of the property or the owner's designated representative.

(B) Together with the notice that division (A) of this section requires, or after providing that notice but not less than thirty days before filing a petition pursuant to section 163.05 of the Revised Code, an agency shall provide an owner with a an initial written good faith offer to purchase the property. The agency may revise that offer if before commencing an appropriation proceeding the agency becomes aware of conditions indigenous to the property that could not reasonably have been discovered at the time of the initial good faith offer or if the agency and the owner exchange appraisals prior to the filing of the petitionSuch initial written good faith offer shall be the minimum award of compensation to the owner and may not be later reduced or revoked by the agency nor shall the agency present evidence or argument of a lesser compensation amount at the compensation jury trial. Nothing in this division prohibits the agency from making a subsequent offer that is in excess of the initial good faith offer. If the agency makes a subsequent offer that is in excess of the initial good faith offer, then that subsequent offer becomes the minimum award of compensation to the owner, the agency shall not later reduce or revoke the subsequent offer, and the agency shall not present evidence or argument of a lesser compensation amount than the subsequent offer at the compensation jury trial. No agency shall make an offer that is not in writing.

(C) An agency may appropriate real property only after the agency obtains an appraisal of the property and provides a copy of the appraisal to the owner or, if more than one, each owner or to the guardian or trustee of each owner. The agency need not provide an owner with a copy of the appraisal when that owner is incapable of contracting in person or by agent to convey the property and has no guardian or trustee or is unknown, or the residence of the owner cannot with reasonable diligence be ascertained. When the appraisal indicates that the property is worth less than ten thousand dollars, the agency need only provide an owner, guardian, or trustee with a summary of the appraisal. The agency shall provide the copy or summary of the appraisal to an owner, guardian, or trustee at or before the time the agency makes its first offer to purchase the property. A public utility or the head of a public agency may prescribe a procedure to waive the appraisal in cases involving the acquisition by sale or donation of property with a fair market value of ten thousand dollars or less.

(D) An agency may appropriate real property only after the agency is unable to agree on a conveyance or the terms of a conveyance, for any reason, with any owner or the guardian or trustee of any owner unless each owner is incapable of contracting in person or by agent to convey the property and has no guardian or trustee, each owner is unknown, or the residence of each owner is unknown to the agency and the residence of no owner can with reasonable diligence be ascertained.

(E) An agency may appropriate real property for projects that will disrupt the flow of traffic or impede access to property only after the agency makes reasonable efforts to plan the project in a way that will limit those effects. This division does not apply to an agency if it initiated the project for which it appropriates the property under Title LV of the Revised Code.

Sec. 163.09. (A) If no answer is filed pursuant to section 163.08 of the Revised Code, and no approval ordered by the court to a settlement of the rights of all necessary parties, the court, on motion of a public agency, shall declare the value of the property taken and the damages, if any, to the residue to be as set forth in any document properly filed with the clerk of the court of common pleas by the public agency. In all other cases, the court shall fix a time, within ~~twenty~~ ninety days from the last date that the answer could have been filed, for the assessment of compensation by a jury.

(B)(1) When an answer is filed pursuant to section 163.08 of the Revised Code and any of the matters relating to the right to make the appropriation, the inability of the parties to agree, or the necessity for the appropriation are specifically denied in the manner provided in that section, the court shall set a day, not less than ~~five or more than fifteen~~ thirty days from the date the answer was filed, to hear those matters. Upon those matters, the burden of proof is upon the agency by ~~a preponderance of the~~ clear and convincing evidence, except ~~as follows:~~

(a) A resolution or ordinance of the governing or controlling body, council, or board of the agency declaring the necessity for the appropriation creates a rebuttable presumption of the necessity for the appropriation if the agency is not appropriating the property because it is a blighted parcel or part of a blighted area or slum.

~~(b) The presentation by a public utility or common carrier of evidence of the necessity for the appropriation creates a rebuttable presumption of the necessity for the appropriation.~~

~~(c) Approval~~ that approval by a state or federal regulatory authority of an the appropriation of all interests sought specific to an owner's property by a public utility or common carrier creates ~~an irrebuttable~~ a rebuttable presumption of the necessity for the appropriation regarding the specific interests reviewed and approved by the regulatory authority.

(2) ~~Subject to the irrebuttable presumption in division (B)(1)(c) of this section, only~~ Only the judge may determine the necessity of the appropriation. If, as to any or all of the property or other interests sought to be appropriated, the court determines the matters in favor of the agency, the court shall set a time for the assessment of compensation by the jury not less than ~~sixty~~ ninety days from the date of the journalization of that determination, subject to the right of the parties to request mediation under section 163.051 of the Revised Code and the right of the owner to an immediate appeal under division (B)(3) of this section. Except as provided in division (B)(3) of this section, an order of the court in favor of the agency on any of the matters or on qualification under section 163.06 of the Revised Code shall not be a final order for purposes of appeal. An order of the court against the agency on any of the matters or on the question of qualification under section 163.06 of the Revised Code shall be a final order for purposes of appeal. If a public agency has taken possession prior to such an order and such an order, after any appeal, is against the agency on any of the matters, the agency shall restore the property to the owner in its original condition or respond in damages, which may include the items set forth in division (A)(2) of section 163.21 of the Revised Code, recoverable by civil action, to which the state consents.

(3) An owner has a right to an immediate appeal if the order of the court is in favor of the agency in any of the matters the owner denied in the answer, unless the agency is appropriating property in under any of the following circumstances:

(a) In time of war or other public exigency imperatively requiring its immediate seizure~~, for~~;

(b) For the sole purpose of making or repairing roads which shall be open to the public without charge~~, for~~;

(c) For the purpose of implementing rail service under Chapter 4981. of the Revised Code, or under section 307.08, 504.19, 6101.181, 6115.221, 6117.39, or 6119.11 of the Revised Code or by a public utility owned and operated by a municipal corporation as the result of a public exigency.

The court shall not set a time for nor proceed with a determination of the assessment of compensation until the owner's immediate appeal is final.

(C) When an answer is filed pursuant to section 163.08 of the Revised Code, and none of the matters set forth in division (B) of this section is specifically denied, the court shall fix a time ~~within twenty~~ not sooner than ninety days from the date the answer was filed for the assessment of compensation by a jury.

(D) If answers are filed pursuant to divisions (B) and (C) of this section, or an answer is filed on behalf of fewer than all the named owners, the court shall set the hearing or hearings at such times as are reasonable under all the circumstances~~, but in no event later than twenty days after the issues are joined as to all necessary parties or twenty days after rule therefor, whichever is earlier~~.

(E) The court, with the consent of the parties, may order two or more cases to be consolidated and tried together, but the rights of each owner to compensation, damages, or both shall be separately determined by the jury in its verdict.

(F) If an answer is filed under section 163.08 of the Revised Code with respect to the value of property, the trier of fact shall determine that value based on the evidence presented, with neither party having the burden of proof with respect to that value.

(G) If the court determines the matter wholly or partially in the favor of the owner as to the necessity of the appropriation or whether the use for which the agency seeks to appropriate the property is a public use, in a final, unappealable order, the court shall award the owner reasonable attorney's fees, expenses, and costs.

(H) If the owner demonstrates by a preponderance of the evidence that the agency used coercive actions, including but not limited to those listed in section 163.59 of the Revised Code, at any point during the appropriations process against the owner, the court shall award the owner damages that the court considers appropriate. The state hereby waives its immunity from liability for such claims, and, notwithstanding Chapter 2743. of the Revised Code, such actions shall be brought in the court of common pleas in the county where the property in question is located.

Sec. 163.16. (A) If, in an action brought under this chapter, the court is required to award the owner reasonable attorney's fees, expenses, and costs, or the agency is required to pay the owner reasonable attorney's fees, expenses, and costs, that award or payment shall include any fees, expenses, and costs incurred by the owner in the pursuit of the award of fees, expenses, and costs, including costs of mediation or appeal.

(B) The court costs, including jury fees, of any proceeding shall be paid by the agency as the court directs, except as may be provided for in cases subject to division (A)(2) or (B)(1) of section 163.21 of the Revised Code. The agency may offer to confess judgment for the amount to be stated and the court costs then made in favor of any owner who in any manner enters an appearance or upon whom service has been made. If such owner refuses to accept such offer and as a result of the trial does not receive more, he shall pay all court costs accruing after the offer.

Sec. 163.19. Subject to sections 163.07 and 163.09 of the Revised Code, any party may prosecute appeals as in other civil actions from the judgment of the court.

The owner may request, and the court may grant, a stay on appeal, provided that the owner posts a supersedeas bond in an amount the court determines.

If the agency appeals from a judgment of the court and the judgment is affirmed in whole or in part, the court shall award the owner reasonable attorney's fees, expenses, and costs incurred in defending the appeal.

Sec. 163.21. (A)(1) If it has not taken possession of property that is appropriated, an agency may abandon appropriation proceedings under sections 163.01 to 163.22 of the Revised Code at any time after the proceedings are commenced but not later than ninety days after the final determination of the cause.

(2) In all cases of abandonment as described in division (A)(1) of this section, the court shall enter a judgment against the agency for costs, including jury fees, and shall enter a judgment in favor of each affected owner, in amounts that the court considers to be just, for each of the following that the owner incurred:

(a) Witness fees, including expert witness fees;

(b) Attorney's fees;

(B)(1) In appropriation proceedings under sections 163.01 to 163.22 of the Revised Code or as authorized by divisions (A) and (B) of section 163.02 of the Revised Code for appropriation proceedings in time of a public exigency under other sections of the Revised Code, if the court determines that an agency is not entitled to appropriate particular property, the court shall enter both of the following:

(a) A judgment against the agency for costs, including jury fees;

(b) A judgment in favor of each affected owner, in amounts that the court considers to be just, for the owner's reasonable disbursements and expenses, to include witness fees, expert witness fees, attorney's fees, appraisal and engineering fees, and for other actual expenses that the owner incurred in connection with the proceedings.

(2) Any award to an owner pursuant to this section shall be paid by the head of the agency for whose benefit the appropriation proceedings were initiated.

(C)(1) Except as otherwise provided in division (C)(2) ~~or (3)~~ of this section and subject to division ~~(C)(5)~~ (C)(4) of this section, when an agency appropriates property and the final award of compensation is greater than one hundred twenty-five per cent of the agency's initial good faith offer for the property or, if before commencing the appropriation proceeding the agency made a revised offer based on conditions indigenous to the property that could not reasonably have been discovered at the time of the good faith offer, one hundred twenty-five per cent of the revised offer made pursuant to section 163.04 of the Revised Code, the court shall enter judgment in favor of the owner, in amounts the court considers just, for all costs and expenses, including attorney's and appraisal fees, that the owner actually incurred.

(2) The court shall not enter judgment for costs and expenses, including attorney's fees and appraisal fees, if the agency is appropriating property in time of war or other public exigency imperatively requiring its immediate seizure, for the purpose of making or repairing roads that shall be open to the public without charge, for the purpose of implementing rail service under Chapter 4981. of the Revised Code, or under section 307.08, 504.19, 6101.181, 6115.221, 6117.39, or 6119.11 of the Revised Code as the result of a public exigency, or the agency is a municipal corporation that is appropriating property as a result of a public exigency, except that the court shall enter judgment in favor of the owner for costs and expenses, including attorney's and appraisal fees, that the owner actually incurred only if the property being appropriated is land used for agricultural purposes as defined in section 303.01 or 519.01 of the Revised Code, or the county auditor of the county in which the land is located has determined under section 5713.31 of the Revised Code that the land is "land devoted exclusively to agricultural use" as defined in section 5713.30 of the Revised Code and the final award of compensation is more than one hundred fifty per cent of the agency's initial good faith offer ~~or a revised offer made by the agency under division (C)(1) or (3) of this section~~ made pursuant to section 163.04 of the Revised Code.

(3) The court shall not enter judgment for costs and expenses, including attorney's fees and appraisal fees, that the owner actually incurred if the owner and the agency exchanged appraisals prior to the filing of the petition and the final award of compensation was not more than one hundred twenty-five per cent of the agency's first offer for the property made subsequent to the exchange of appraisals and at least thirty days before the filing of the petition.

~~(4)~~ An award of costs and expenses, including attorney's and appraisal fees, that the owner actually incurred, under division (C) of this section shall not exceed the lesser of twenty-five per cent of the amount by which the final award of compensation exceeds the agency's initial good faith offer ~~or revised offer~~ or twenty-five per cent of the amount by which the final award of compensation exceeds the agency's last written offer made not less than forty-five days before the date initially designated for trial by the court.

~~(5)(a)~~ (4)(a) An award of costs and expenses, including attorney's and appraisal fees, that the owner actually incurred, made under division (G) of section 163.09 of the Revised Code is not subject to the conditions and limitations set forth in divisions (C)(1), (2), and (3)~~, and (4)~~ of this section.

(b) The court shall not enter judgment for costs and expenses, including attorney's fees and appraisal fees, under division (C) of this section unless not less than fifty days prior to the date initially designated by the court for trial the owner provided the agency with an appraisal or summary appraisal of the property being appropriated or with the owner's sworn statement setting forth the value of the property and an explanation of how the owner arrived at that value.

Sec. 163.221. (A) An owner who alleges that the owner's property has been acquired for a public use by an appropriating authority and that the authority has not followed the procedures required by sections 163.02 to 163.22 of the Revised Code, or any prior appropriation procedures, may bring a direct action against the appropriating authority for inverse condemnation.

(B) The owner shall file the action in the court of common pleas in the county where the property is located.

(C) The owner who brings the action has the burden to prove by a preponderance of the evidence that the appropriating authority has appropriated the owner's property and that the appropriating authority did not follow the procedures required by sections 163.02 to 163.22 of the Revised Code, or any prior appropriation procedures. An owner who meets the burden of proof shall be awarded reasonable compensation and damages for the appropriation.

(D) If the court renders judgment in favor of the owner who brought the action, or the appropriating authority effects a settlement of the action, the court shall award the owner reasonable attorney's fees, costs, and expenses, including appraisal fees and engineering fees incurred in the action.

Sec. 163.52. (A) The failure of an acquiring agency to satisfy a requirement of section 163.59 of the Revised Code ~~does not affect the validity of~~ voids any property acquisition by purchase or condemnation.

(B) If a property acquisition by purchase or condemnation is void for failure to satisfy the requirements of section 163.59 of the Revised Code, the agency shall pay the owner reasonable attorney fees, costs, and expenses.

(D) Nothing in sections 163.51 to 163.62 of the Revised Code shall be construed as creating, in any condemnation proceeding brought under the power of eminent domain, any element of value or damage not in existence immediately prior to June 11, 1971.

Sec. 163.59. In order to encourage and expedite the acquisition of real property by agreements with owners, to avoid litigation and relieve congestion in the courts, to assure consistent treatment for owners in the many state and federally assisted programs, and to promote public confidence in public land acquisition practices, heads of acquiring agencies shall do or ensure the acquisition satisfies all of the following:

(A) The head of an acquiring agency shall make every reasonable effort to acquire expeditiously real property by negotiation.

(B) In order for an acquiring agency to acquire real property, the acquisition shall be for a defined public purpose that is to be achieved in a defined and reasonable period of time. An acquisition of real property that complies with section 5501.31 of the Revised Code satisfies the defined public purpose requirement of this division.

(C) Real property to be acquired shall be appraised before the initiation of negotiations, and the owner or the owner's designated representative shall be given a reasonable opportunity to accompany the appraiser during the appraiser's inspection of the property, except that the head of the lead agency may prescribe a procedure to waive the appraisal in cases involving the acquisition by sale or donation of property with a low fair market value. If the appraisal values the property to be acquired at more than ten thousand dollars, the head of the acquiring agency concerned shall make every reasonable effort to provide a copy of the appraisal to the owner. As used in this section, "appraisal" means a written statement independently and impartially prepared by a qualified appraiser, or a written statement prepared by an employee of the acquiring agency who is a qualified appraiser, setting forth an opinion of defined value of an adequately described property as of a specified date, supported by the presentation and analysis of relevant market information.

(D) Before the initiation of negotiations for real property, the head of the acquiring agency concerned shall establish an amount that the head of the acquiring agency believes to be just compensation for the property and shall make a prompt offer to acquire the property for no less than the full amount so established. In no event shall that amount be less than the agency's approved appraisal of the fair market value of the property. Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which the property is acquired, or by the likelihood that the property would be acquired for that improvement, other than that due to physical deterioration within the reasonable control of the owner, will be disregarded in determining the compensation for the property.

The head of the acquiring agency concerned shall provide the owner of real property to be acquired with a written statement of, and summary of the basis for, the amount that the head of the acquiring agency established as just compensation. Where appropriate, the just compensation for real property acquired and for damages to remaining real property shall be separately stated.

The owner shall be given a reasonable opportunity to consider the offer of the acquiring agency for the real property, to present material that the owner believes is relevant to determining the fair market value of the property, and to suggest modification in the proposed terms and conditions of the acquisition. The acquiring agency shall consider the owner's presentation and suggestions.

(E) If information presented by the owner or a material change in the character or condition of the real property indicates the need for new appraisal information, or if a period of more than two years has elapsed since the time of the appraisal of the property, the head of the acquiring agency concerned shall have the appraisal updated or obtain a new appraisal. If updated appraisal information or a new appraisal indicates that a change in the acquisition offer is warranted, the head of the acquiring agency shall promptly reestablish the amount of the just compensation for the property and offer that amount to the owner in writing. No subsequent offers of compensation shall be less than the initial offer.

(F) No owner shall be required to surrender possession of real property before the acquiring agency concerned pays the agreed purchase price, or deposits with the court for the benefit of the owner an amount not less than the agency's approved appraisal of the fair market value of the property, or the amount of the award of compensation in the condemnation proceeding for the property.

(G) The construction or development of a public improvement shall be so scheduled that no person lawfully occupying real property shall be required to move from a dwelling, or to move the person's business or farm operation, without at least ninety days' written notice from the head of the acquiring agency concerned of the date by which the move is required.

(H) If the head of an acquiring agency permits an owner or tenant to occupy the real property acquired on a rental basis for a short term or for a period subject to termination on short notice, the amount of rent required shall not exceed the fair rental value of the property to a short-term occupier.

(I) In no event shall the head of an acquiring agency either advance the time of condemnation, or defer negotiations or condemnation and the deposit of funds in court for the use of the owner, or take any other action coercive in nature, in order to compel an agreement on the price to be paid for the real property. For claims of coercive actions, the state hereby waives its immunity from liability, and, notwithstanding Chapter 2743. of the Revised Code, such actions shall be brought in the court of common pleas in the county where the property in question is located.

(J) When any interest in real property is acquired by exercise of the power of eminent domain, the head of the acquiring agency concerned shall institute the formal condemnation proceedings. No head of an acquiring agency shall intentionally make it necessary for an owner to institute legal proceedings to prove the fact of the taking of the owner's real property.

(K) If the acquisition of only part of a property would leave its owner with an uneconomic remnant, the head of the acquiring agency concerned shall offer to acquire that remnant. For the purposes of this division, an uneconomic remnant is a parcel of real property in which the owner is left with an interest after the partial acquisition of the owner's property and which the head of the agency concerned has determined has little or no value or utility to the owner.

An acquisition of real property may continue while an acquiring agency carries out the requirements of divisions (A) to (K) of this section.

This section applies only when the acquisition of real property may result in an exercise of the power of eminent domain.

Sec. 163.62. (A) The court having jurisdiction of a proceeding instituted by a state agency to acquire real property by condemnation shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for the owner's reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees actually incurred because of the condemnation proceeding, as provided in division (G) of section 163.09 or division (A) or (C) of section 163.21 of the Revised Code, as applicable.

(B) The court having jurisdiction of an inverse condemnation proceeding shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for the owner's reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees actually incurred because of the inverse condemnation proceeding, if the court renders a judgment in favor of the owner or the agency effects a settlement of the proceeding. As used in this division, "court" means the court of common pleas, the court of appeals, or the supreme court.

(C) Any award made pursuant to division (A) or (B) of this section shall be paid by the head of the agency for whose benefit the condemnation proceeding was instituted.

(D)(1) The General Assembly finds that the amendment to this section by this act is remedial in nature in order to ensure that Ohio is in compliance with the "Uniform Relocation Assistance and Real Property Acquisitions Policies for Federal and Federally Assisted Programs Act," 42 U.S.C. 4601, et seq., and its implementing regulations, 49 C.F.R. 24.1, et seq. Therefore, the General Assembly hereby declares its purpose in amending this section in this act is that the amendment apply to any judgment in favor of the owner in an inverse condemnation proceeding or settlement effectuated by the agency in such a proceeding that occurred on or after January 1, 2019.

(2) The amendment to this section by this act is in response to the Supreme Court's opinion in State ex rel. New Wen, Inc. v. Marchbanks, 163 Ohio St.3d 14, 2020-Ohio-4865. There, the Supreme Court declared ineffective a provision in the Administrative Code that authorized certain litigation expenses, including reasonable attorney fees, to owners of real property who prevailed in inverse condemnation proceedings. In a concurring opinion, Justice Fischer, as joined by Justice DeWine, wrote "separately to point out that the General Assembly should examine the issue whether a property owner in Ohio who is forced to file a lawsuit, in this case for a writ of mandamus, to get a court order when the state has taken that owner's property without filing a proper appropriation case, should or should not be entitled to an award of attorney fees." In amending this section, the General Assembly agrees with Justices Fischer and DeWine that Ohioans "who have had property improperly taken by any government—and who must go to court to correct that problem caused by the government—should be entitled to their attorney fees, which they incurred to uphold their constitutionally protected property rights."

Section 2. That existing sections 163.01, 163.021, 163.04, 163.09, 163.16, 163.19, 163.21, 163.52, 163.59, and 163.62 of the Revised Code are hereby repealed.