Ohio Supreme Court
Rejects Taking
of Homes for Project
By IAN URBINA,
NYTimes on the Web, July 27, 2006
The Ohio Supreme Court ruled
unanimously yesterday that a Cincinnati suburb cannot take private property by
eminent domain for a $125 million redevelopment project.
The property rights case was the first of its kind to reach a state’s highest
court since the United States Supreme Court ruled last year that municipalities
could seize property for private development that public officials argue would
benefit the community.
The Ohio decision rejected that view, and is part of a broader backlash.
Since the ruling last year, 28 state legislatures have passed new protections
against the use of eminent domain.
“This is the final word in Ohio, and it says something that I think all
Americans feel,” said Dana Berliner, a lawyer with the Institute for Justice, a
public-interest law firm in Arlington, Va., who argued on behalf of the
homeowners before the Ohio court. “Ownership of a home is a basic right,
regardless of what the U.S. Supreme Court may have decided.”
Since the Ohio case was argued based on the state’s Constitution, yesterday’s
decision cannot be appealed to the United States Supreme Court, which decides
matters involving federal law.
The United States Supreme Court decision last year made it clear that state
constitutions could set different standards for property rights.
“The Ohio decision takes the loophole that was left by the U.S. Supreme Court
decision and drives a Mack truck right through it,” said Richard A. Epstein, a
law professor at the University of Chicago.
Mr. Epstein said the decision was especially surprising coming from the Ohio
Supreme Court, which he said had rarely reached unanimous decisions and had
often sided with developers. “But this decision indicates that the
justices were entirely distrustful of planning officials and developers working
under nebulous criteria.”
The Ohio decision involves the city of Norwood, which moved in 2002 to seize
about 70 houses for a project to build offices, shops and restaurants in a
neighborhood widely viewed to be deteriorating. Virtually all the property
owners sold their land voluntarily, often at prices greatly above their audited
value, state officials said. All but three of the houses at the site have
been bulldozed.
“We’re just grateful that this is still a constitutional republic,” said Joy
Gamble, one of the plaintiffs in the lawsuit against the state. “We raised
our children in that home, we lived there for 35 years, and we planned to live
out our retirement there.”
Mrs. Gamble said that after being evicted in February 2005, she and her husband,
Carl, moved in with their daughter across the Ohio River in Independence, Ky.
“We were nervous because we knew that the same developer who built the mall
across from us with help from the city and eminent domain was the one who wanted
our land,” said Mrs. Gamble, whose house is one of the three still standing on
the contested site. “But in the end, the city and developer took it away
and the courts gave it back, which makes you feel like there is real justice.”
In a 5-to-4 decision last year in a Connecticut case, Kelo v. City of New
London, the United States Supreme Court ruled that economic development is
an appropriate use of the government’s power of eminent domain. That
decision gave New London the authority to condemn houses in an aging
neighborhood to make way for private development.
The legal debate over eminent domain has not been whether governments could
condemn private property to build a public amenity like a park or a highway.
That power was established by the Fifth Amendment, provided that property owners
are given “just compensation.”
The conflict has been over government attempts to take private homes or
businesses for redevelopment projects that at least partly benefit private
entities.
Two months after the ruling in June 2005, Justice John Paul Stevens, who wrote
the majority opinion, said he was bound by the law and legal precedent.
But in responding to criticism, he called the outcome “unwise,” and said that
had he been a legislator he would have opposed it.
Ms. Berliner of the Institute for Justice said the Ohio decision was a reaction
to the growing use of eminent domain by developers and local officials.
Since the Kelo decision, more than 5,700 properties nationwide have been
threatened with seizure or have been seized through eminent domain, a threefold
increase from the numbers before that decision, she said.
The Ohio decision was a blow to Norwood officials, who hoped to gain $2 million
a year in tax revenue through the seven-acre project.
“The city is running one hell of a deficit,” said Mayor Thomas Williams, who
predicted that the city would run out of money for its operating budget in
October. “We’re just trying to generate enough income to keep our doors
open.”
The developer, Jeffrey R. Anderson Real Estate, could not be reached for comment
on whether the project would go forward.
The 58-page Ohio decision said that while economic factors may be considered in
determining whether governments can take private property, the economic benefit
to the government and community cannot be the only justification used for
seizure.
“For the individual property owner, the appropriation is not simply the seizure
of a house,” Justice Maureen O’Connor wrote. “It is the taking of a home,
the place where ancestors toiled, where families were raised, where memories
were made.”
The decision said that justifying the seizure by claiming that the area is
deteriorating was unconstitutional because the term is too vague.
Christopher Maag contributed reporting from Cleveland for this
article.
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