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Ohio Supremes Limit Eminent Domain:

Landowners challenging the use of eminent domain for economic development in Norwood, Ohio have emerged victorious. According to a unanimous Ohio Supreme Court, the economic benefits of redevelopment projects, by themselves, do not satisfy the "publc use" requirment of Article I, section 19 of the Ohio Constitution. The Court further held that the relevant standard for a blight designation — a "deteriorating area" — was void for vagueness and also unconstitutional.

The decision is here. Some local news coverage is here. I am sure my co-bloggers will have more to say about this decision later.

UPDATE: How Appealing rounds up some more early coverage here. The Institute for Justice, which represented the homeowners challenging the use of eminent domain in this case (as well as in Kelo), has background on the case here.

FURTHER UPDATE: Here is how the court describes its holdings:

We hold that although economic factors may be considered in determining whether private property may be appropriated, the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution.

We also hold that the void-for-vagueness doctrine applies to statutes that regulate the use of eminent-domain powers. Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminentdomain powers. Applying that standard, we find that Norwood's use of "deteriorating area" as a standard for appropriation is void for vagueness. We further hold that the use of the term "deteriorating area" as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.

Finally, we hold that the provision in R.C. 163.19 that prohibits a court from enjoining the taking and using of property appropriated by the government after the compensation for the property has been deposited with the court but prior to appellate review of the taking violates the separation-of-powers doctrine and is therefore unconstitutional. We further hold that the unconstitutional portion of R.C. 163.19 can be severed from the rest of the statute, and, accordingly, the remainder of the statute remains in effect.

FINAL UPDATE (FOR NOW): Based upon a quick read of the opinion, this seems to be quite a resounding victory for opponents of eminent domain. It also seems to me that this opinion relies upon (or at least cites to) academic commentary far more extensively than the typical Ohio Supreme Court opinion. Indeed, it is not every day that one sees an opinion issued by any court that cites both Richard Epstein and Edith Wharton!

Steve:
In Michigan, where the state Supreme Court first upheld a broad exercise of the eminent domain power in the Poletown decision and then reversed itself decades later, the court was clearly influenced by the real-world debacle which the Poletown project became. Maybe courts aren't supposed to take these things into account, but had Poletown been revitalized into a shining auto plant on a hill, the state of the law might be entirely different today.

Does Ohio have any eminent domain catastrophe in its past, similar to Poletown, that might have influenced the court's thinking in this case?
7.26.2006 12:20pm
U.Va. 2L (no longer a 1L) (mail):
DeRolph in 1997, now this in 2006. At least the Ohio Supreme Court can manage something worthwhile once every ten years!

Seriously, though, this is great news.
7.26.2006 12:56pm
U.Va. 2L (no longer a 1L) (mail):
Also, should anyone be interested in the Cincinnati Enquirer's extensive background coverage of this matter, you can find it here.
7.26.2006 1:04pm
Ohio Lawyer:
Does Ohio have any eminent domain catastrophe in its past, similar to Poletown, that might have influenced the court's thinking in this case?

No, but the Ohio Supreme Court is an elected body that is sometimes responsive to public opinion.

There are now a lot of practical questions. According to the Cincinnati Enquirer, the homes have been "salvaged for parts and neglected for more than a year." Does Rookwood Partners have to pay to restore the homes? The City of Norwood?

They also probably owe the homeowners some sort of rent and compensation for other expenses. Again, does the city or the developer have to pay? The city was the party who took the property illegally, but the developer let the property deteriorate.

This deal is proabably going to end up being very expensive for both Norwood and the developer.

The developer would be smart to offer HUGE settlements to the victorious property owners. Maybe the property wasn't for sale at market price or market plus a small percentage, but it might be for sale at market price plus a zero. The property owners now have full hold out power. It will be interesting to see if the developer offers a price they would take.
7.26.2006 1:48pm
Bpbatista (mail):
DeRolph is an abomination. DeRolph would be decided differently -- and correctly -- today with the court's current composition.
7.26.2006 2:38pm
U.Va. 2L (no longer a 1L) (mail):
The state shouldn't be in the public education business anyway. But if they're going to do it, then by God, they ought to guarantee a baseline. DeRolph isn't the abomination; rather, it's what makes the original abomination palatable.
7.26.2006 7:11pm
David M. Nieporent (www):
But if they're going to do it, then by God, they ought to guarantee a baseline.
That's a policy statement, not a legal one.
7.27.2006 3:19am
Ohio Lawyer:
(We're off topic, so this will be my last post on the subject.)

Statement: But if they're going to do it, then by God, they ought to guarantee a baseline.

Response: That's a policy statement, not a legal one.


The Ohio Constitution requires the General Assembly to "make such provisions, by taxation, or otherwise, as . . . will secure a thorough and efficient system of common schools. . . ."

You can argue about what "thorough and efficient" means. You can argue about whether the General Assembly's duty is judicially enforceable. But the original DeRolph decision was rooted in the text of the state constitution.
7.27.2006 5:32am