Property Owners Win A Big Ohio Ruling In Rebuke To Supreme Court Decision

BY BRIAN MITCHELL, INVESTOR'S BUSINESS DAILY
7/27/2006

In a signal embarrassment for the U.S. Supreme Court, the Ohio Supreme Court ruled unanimously Wednesday that a Cincinnati suburb can't use eminent domain to take private property for a $125 million multiuse redevelopment.

It was the first challenge of a city's right of eminent domain to be decided by a state high court since the U.S. Supreme Court ruled last summer that economic benefit constitutes "public use" under the Constitution.

The Ohio court ruled that the city of Norwood abused the right of eminent domain in seizing three properties — Carl and Joy Gamble's home of 35 years, a rental home owned by Joe Horney and a tutoring center owned by Matthew and Sanae Burton — to make way for the Rookwood Commons complex of offices, shops, restaurants and condominiums.

"Our state Supreme Court did what the U.S. Supreme Court did not do; it protected our home," Joy Gamble said. "The Ohio Supreme Court protected small property owners from the overpowering and overbearing city governments and the greedy developers."

Although the Ohio ruling applies only to that state, it showed that the Supreme Court's reasoning in Kelo v. City of New London, Conn., hasn't won over jurists elsewhere, said Karen Harned, executive director of the National Federation of Independent Business Legal Foundation.

"There were a lot of similarities between the cases, and they did explicitly reject — and we're very pleased that (the justices) rejected — the argument that you can do it for economics alone. That's not appropriate," she said.

The city of Norwood based its eminent domain claim on the neighborhood's deteriorating conditions and the economic benefit to the city from the development.

The court rejected both arguments. It ruled the city's "deteriorating" standard so vague that it amounts to a "standardless standard." It also ruled that economic development alone is not enough to justify taking someone's home.

"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 court ordered other Ohio courts to apply "heightened scrutiny" when property is being taken for use by another private party. It also ruled that property can't be seized before an appeals court agrees.

Previous rulings had permitted the eviction of the homeowners, but not the destruction of their homes, which stand behind a chain-link fence, surrounded by empty lots where other homes once stood.

Wednesday's decision reinforces a 1953 Ohio Supreme Court ruling that "the power of eminent domain may not be exercised merely or primarily to take private property for private purposes."

The Institute of Justice's Dana Berliner, who argued the case before the court, hailed the ruling as a "complete and total victory."

"The court stopped the abuse of eminent domain by Norwood and told Ohio courts that it is their job to enforce the Constitution and make sure that eminent domain really is for public use," Berliner said.

Governments have long claimed eminent domain to take private property to build roads, dams, parks and other public facilities.

But in recent years cities have often used it to take older neighborhoods for redevelopment by other owners.

The 5-4 Kelo ruling last year reinforced that power, sparked nationwide outrage and moved state and local lawmakers to curb eminent domain abuse. Thirty state legislatures have passed such laws.

But local governments have also moved against many property owners, said the Institute for Justice.

Calls to the city of Norwood and the Rookwood Commons developers were not returned by press time.

A spokesman for the Ohio Municipal League, which filed an amicus brief on behalf of Norwood, said the group would have no comment until the ruling could be read thoroughly.

(c) Investor's Business Daily

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