Ohio Eminent Domain Case:

Today's paper carries an article about oral argument yesterday in the Ohio Supreme Court in a Kelo-style Eminent Domain case (which also quotes my colleage Steve Eagle).

A reader who attended oral argument writes with further information. I pass along the relevant information to those who are interested.

Professor Zywicki:

You might also be interested in yesterday's Ohio Supreme Court argument about a Kelo case here. I regularly attend arguments there, and this is the first time I've seen the courtroom full.

The case is interesting because it tests private eminent domain takings under the Ohio constitution and Ohio statute.

The briefs are here.

An article about the argument is here.

The oral arguments are archived here (click on the Norwood case)

The actual argument is here

The court staff's summary of the case is here.

The staff summary describes the issue:

When May a City Use Its Eminent Domain Powers to Condemn Property for Private Redevelopment? City of Norwood v. Horney et al., Case nos. 2005-1210 and 2005-1211 1st District Court of Appeals (Hamilton County)

ISSUE: Does a city act unlawfully when it commissions an urban renewal study of a residential area previously targeted by a private developer, classifies the area as 'deteriorating,' and subsequently uses its eminent domain powers to take (with compensation) the property of owners unwilling to vacate the targeted area to make way for private redevelopment?

Nick (www):
I found this quote from the staff summary quite interesting:

They say hearing testimony and the KKG report documented a clear pattern of decline in the area since the 1960s, when construction of I-71 and access ramps to and from the freeway through the middle of the area isolated a pocket of one and two-family homes from other formerly adjacent residential areas, and created numerous dead-end streets that restrict quick access by public safety vehicles. The city also cited a pattern of "piecemeal" replacement of former residences by commercial structures, and increasing traffic safety problems arising from the widening of Edmondson Rd. and the resulting need of residents to back into or out of their home driveways into heavy through traffic.

Basically the developers are arguing that they previous public takings (building an interestate and widing a public road) have caused serious problems in that neighborhood that mean that they should just be able to take the rest of the land. How's that for irony? Previous public takings caused problems which they argue can only be solved by taking more land!

And why does "piecemeal" replacement of some land for other purposes lead to blight? Is the argument that only grand scale redevelopment with some huge wide scoping plan for the future the only way to develop properly and benefit the city?
1.12.2006 11:04am
The incredible thing is that "deteriorating" has been stretched to such an unreal definition, that it really could apply to almost every neighborhood in the area (I grew up in Cinci, not too far from Norwood area). If all you need are cul-de-sacs, sloppy zoning, driveways, and (my favorite) a variety of different owners (shocking!) then just about every neighborhood I've ever lived in could qualify.

Why do I get the feeling that Hedley Lamarr is somehow behind this?

("Let's see.. land snatching, land snatching, land snatching.. ah, here it is... see "Snatch")
1.12.2006 11:38am
magoo (mail):
Regarding the prior Kelo post (on which you failed to enable comments), you don't cite any responsible scholars who argue for the curing of public use violations through compensation because, of course, there aren't any. There are responsible scholars, such as Prof. Merrill at Columbia, a Federalist Society member who authored the planners' amicus in Kelo in support of the city, who argue 1) Kelo-style takings do not violate the Fifth Amendment, and 2) even still, these takings raise very serious equitable concerns that can be ameliorated in part through enhanced compensation as a matter of sound public policy. Rather than engage in thoughtful debate on #1, you set up and knock down a straw man in a fit of silly demagoguery. For those interested in issue 1, you might peruse the article by Prof Matthew Harrington at 53 Hastings L.J. 1245.
1.12.2006 1:08pm
The NJ Annuitant (mail):
I think that Congress could put an end to takings for the purpose of private development by using its spending power. Congress could refuse to provide Federal funding to any State that permits public takings for private development. Congress could set a deadline for the States to enact the appropriate legislation. I do think that would end it all.
1.12.2006 1:36pm
I don't buy the professor's argument that a federal injunction should lie to challenge Kelo takings. Once the you have lost the argument that "public use" excludes private redevelopment, you are left with a constitutional text that expressly allows property to be taken as long as compensation is paid.

Unlike the takings clause, the rest of the Bill of Rights does not include compensation clauses. For example, the Fourth Amendment does not say that the state can pay for the right to search your home without cause or a warrant. The Amendment just says the government can't do it.

I'm not saying that Kelo was correct or just, but I don't see the logic in the professor's injunction argument.
1.12.2006 2:01pm
Ben Barros (mail):
Magoo, I'm not sure what explains the tone of your post, but the role of additional compensation is a very important one to eminent domain scholars. The role of compensation has played a role in Prof. Merrill's arguments against legislative restrictions on the scope of public use. What follows is an excerpt from his testimony to the U.S. Senate. Note in particular the second half of this sentence: "Either way, enhanced compensation would have two effects: it would soften the blow to condemnees, and it would reduce the incidence of eminent domain by increasing the costs of condemning property."

There are three general types of strategies for reforming eminent domain: prohibitory reforms, procedural reforms, and compensation reforms.

Prohibitory reforms declare certain ends or objectives of government off limits for eminent domain, e.g., the use of eminent domain for "economic development." In essence, the prohibitory strategy seeks to discover and impose as law a restrictive definition of "public use." This is the centerpiece of the Institute for Justice's campaign against eminent domain. Its idea is that eminent domain should be prohibited for economic development. Various other prohibitory strategies are imaginable, however, such as prohibiting all condemn-and-retransfer schemes outside the public utility context.

Procedural reforms focus on the process used to decide whether to employ eminent domain. Since eminent domain procedures are badly out of date, there are a host of possibilities here. One approach would try to assure more political accountability for the used of eminent domain: for example, pushing decisions to use eminent domain down to the local level and by trying to assure that the decision is made by elected rather than unelected officials. Another approach would seek to improve condemnees' access to the judiciary. One simple but quite powerful proposal here would put the burden on the condemning authority to establish the legality of the taking, including whether it constitutes a public use, before title changes hands. Many jurisdictions today have "quick take" statutes that presume the validity of the taking, and require condemnee to file an independent action seeking to enjoin the taking. This procedure puts the burden of proof on the condemnee, including the burden of proving that the taking is not a public use.

The compensation strategy would increase the amount of compensation paid to condemnees above the current fair market value formula. This could be done either under an indemnification theory -- seeking to provide more complete recovery of losses, analogous to allowing recovery for pain and suffering in addition to out of pocket losses in tort cases. Or it could be done under a restitution theory -- requiring the condemning authority to disgorge or at least share with the condemnee the assembly gains realized through the exercise of eminent domain. Either way, enhanced compensation would have two effects: it would soften the blow to condemnees, and it would reduce the incidence of eminent domain by increasing the costs of condemning property.

I am not a fan of the prohibitory strategy. . . .
1.12.2006 2:08pm
Tyrone Slothrop (mail) (www):

I am a fan of the compensation strategy described in the previous post, and wonder if it is being pursued as a practical matter in state legislatures. I can imagine that it's easier to belly-ache about the Supreme Court than enact a statute that requires spending more money.
1.12.2006 3:39pm
Zywicki (mail):
I intended to enable comments for the prior post, but I didn't find out until today from a reader that something seems awry with the way PowerBlogs is dealing with Comments on that post (and only that post). As you can see, there is a Comment button there, but for some reason it doesn't work. Sorry for the inconvenience.
1.12.2006 3:43pm
magoo (mail):
Dear Professor Barros:

Thank you for your thoughtful response. I am aware that Professor Merrill offers enhanced compensation as an alternative to prohibitory legislation. The tone of my post was the result of impatience with the argument made by Professor Zywicki suggesting that advocates of enhanced compensation are somehow trying to cure constitutional violations with money, and (the argument continues) isn't that idea ridiculous because we would never try to cure other kinds of constitutional violations with money. But as the testimony you provide makes clear, enhanced compensation comes into play only after Professor Merrill explains why (or assumes arguendo that ) there is no constitutional violation. I know Professor Zywicki disagrees with that explanation/assumption, but rather than debate the point, he sets up a phoney straw man.

Best personal regards for a safe and joyful 2006,
1.12.2006 3:54pm
Tom Holsinger (mail):
My practice has given me a useful perspective here -- I moved from private development practice to a trial court research attorney position after sleep apnea surgery complications (TMJ syndrome) limited my ability to talk for a significant period.

I agree with Mr. Barros' suggestion that compensation in these hold-out eminent domain cases be increased from reasonable present value to reasonable future value as improved. The former gives developers a club they can and do use against recalcitrant hold-outs -- "Take our offer now or the City will give you less later". This change in incentives and the power balance between developers and property owners will IMO significantly minimize the abuse possibilities in the eminent domain process, though it does not address the issue of "high subjective value".

Public Defender,

You overlook a significant factual difference between this City of Norwood v. Horney case and Kelo v. City of New London. The private developers to be benefited in Kelo were not known when its plan under attack was written. In Norwood the developers were not only known prior to the plan being written, but they instigated the plan. This raises an unfavorable inference under Kelo which merits attacking Norwood's plan on federal grounds. Justice Kennedy's concurring opinion in Kelo, which has weight because he was the 5th vote in the majority opinion, had a dim view of plans intended to benefit specific persons. 125 S.Ct. 2655, 2679:
"A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government's actions were reasonable and intended to serve a public purpose."

There is a red flag on this point in the Norwood staff summary: "The KKG study found that, while most structures in the target area were sound …" I have significant suspicions about what can be found in Norwood's administrative record given my 20 years of experience in such matters.

Exacting study of the administrative record in such cases is my day job now, and was in private practice. I have an eight foot long, chest-high, desk in my office for the express purpose of following particular issues among multiple volumes of an administrative record without risk of low back pain.
1.12.2006 3:54pm
Ben Barros (mail):
Best new year's wishes to you as well, Magoo.
1.12.2006 4:54pm
bud (mail):
As they say, IANAL, and Prof. Barros obviously is, when
he says:
"In essence, the prohibitory strategy seeks to discover and impose as law a restrictive definition of 'public use.'"

I'd reverse the phrasing, inasmuch as the proponents of Kelo have "discovered(!) and imposed" a definition of "public use" that is at odds with common usage.

I realize that there are "terms of art" in legal language; words and phrases that do not map one to one with modern usage. Note the modifier, "modern". All of the ones I have seen have resulted from the drift of language over time - they once had that meaning in common parlance, or they were enacted in statute. They did not acquire that attribute by a simple judicial redefinition process that seems to have taken place in Kelo.

email is human readable - aloud
1.12.2006 8:01pm
Ben Barros (mail):
Just to be clear, folks, most of my comment is an excerpt from Prof. Merrill's testimony, and doesn't represent my views.
1.12.2006 9:09pm