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Ohio Supreme Court Rejects Taking of Homes for Project

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Ohio Supreme Court Rejects Taking of Homes for Project


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Published: 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.

New York Times

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well done ohio supreme court i think eminent domain is one of the few areas where most can agree stealing land owned by fellow citizens to build a walmart , high rise condo's , or a shopping mall isnt acceptable even if the tenants are crack heads . If governments or corporate interests want the land so badly buy it from the owner i am sure everyone has a price

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