Eminent Domain: Taking On Water In Ohio

City of Norwood v. Horney, 2006 Ohio 3799 (Ohio July 26, 2006)

In a unanimous decision that shakes the foundations of the U.S. Supreme Court's infamous Kelo v. New London decision, the Ohio supreme court has ruled that using eminent domain to confiscate private property and transfer it to a developer simply because it confers an economic benefit to the community does not satisfy the 'public use' requirement of the Ohio Constitution.

Homeowners in the city of Norwood, Ohio lived in a neighborhood that had undergone substantial changes in the decades preceding this action. A private developer approached the city with a redevelopment plan and urged the city to use eminent domain to condemn and acquire the property of homeowners. The city recommended that the developer acquire the property on the open market, but the effort was not completely successful.

The city hired a consultant who determined the neighborhood was 'deteriorating' as that term is defined in the city code. The city then filed actions against the property owners for condemnation. A trial court upheld the city's action and the developer acquired the titles and began demolition.

In response to the Kelo decision and a ground swell of public opposition, Ohio enacted legislation which created an eminent domain task force to study the matter, and imposed a moratorium on takings of a nature such as the instant case.

The court ultimately found that the trial court erred in giving deference to the city's code's use of 'deteriorating area' as a standard because that term actually had no definition and did not provide the property owners with fair notice. Because Norwood could not justify the taking for public use on the 'deteriorating area' standard and because it could not justify a taking for economic benefit, the trial court and appeals court decisions affirming the taking were reversed.

Although we here at Law Down On The Farm admit of public necessity, we also think that the twin furies of the power of eminent domain coupled with a love affair with anyone who comes into town with a stack of blueprints and a good story has been too much for cities to refuse. It is, as the phrase has it, the very legerdemain.

It has also been more temptation than cash strapped governments could ordinarily resist. However, there comes a point at which the power of government to evict one property owner in favor of another with a larger bankroll must halt. This, it seems, is one of those times.

Let us hope that this decision is merely the first rumbling of a faraway storm that unseats and then discards this unhealthy rendition of the power of eminent domain.