Academic journal article Harvard Law Review

Eminent Domain - Public Use - Ohio Supreme Court Holds That Economic Development Cannot by Itself Satisfy the Public Use Limitation of the Ohio Constitution

Academic journal article Harvard Law Review

Eminent Domain - Public Use - Ohio Supreme Court Holds That Economic Development Cannot by Itself Satisfy the Public Use Limitation of the Ohio Constitution

Article excerpt

EMINENT DOMAIN--PUBLIC USE--OHIO SUPREME COURT HOLDS THAT ECONOMIC DEVELOPMENT CANNOT BY ITSELF SATISFY THE PUBLIC USE LIMITATION OF THE OHIO CONSTITUTION.--City of Norwood v. Horney, 853 N.E.2d 1115 (Ohio 2006).

The proper interpretation of the public use limitation on the power of eminent domain is the subject of substantial disagreement. (1) The government clearly violates that limitation, however, when it takes property from a private individual or entity for the sole purpose of giving it to another private individual or entity. (2) Although a taking for economic development may at first blush appear to clearly violate the public use limitation because the government takes private property to give to a developer, the potentially large public benefit of economic revitalization calls that judgment into question. (3) In 2005, in Kelo v. City of New London, (4) the U.S. Supreme Court held that economic development satisfied the public use limitation in the Federal Constitution (5) but noted that state courts may reach different conclusions when interpreting the eminent domain provisions in their own states' constitutions. (6) Recently, in City of Norwood v. Horney, (7) the Ohio Supreme Court held that economic development does not by itself satisfy the public use requirement that the Ohio Constitution imposes on takings. (8) Although the Ohio Supreme Court's rule achieves a commendable balance between individual property rights and the State's eminent domain power, an unfortunate byproduct of that balance is the increased role of the judiciary at the expense of the legislative branch. This incursion on the legislative role highlights the need for a more clearly defined rule that will balance the legislative and judicial roles.

The City of Norwood is a municipality wholly encircled by Cincinnati, Ohio. (9) In the 1960s, the construction of Interstate 71 through Norwood changed the city's makeup from predominantly residential to a mixture of residential and commercial. (10) Traffic, road safety problems, noise, and light pollution all increased. (11) Norwood's transformation prompted the Norwood City Council to enter into a contract in 2003 with a development company, Rookwood Partners, Ltd. (Rookwood), to redevelop a portion of the municipality. (12) Rookwood's redevelopment plan proposed the construction of 200 apartments or condominiums, over 500,000 square feet of office and retail space, and two parking facilities. (13)

Norwood's decision to enter into a contract with Rookwood was not made hastily. The city council, the development committee, and the Norwood Planning Commission conducted several public meetings, and the project was also discussed at a series of town meetings. (14) At Norwood's insistence, Rookwood acquired most of the parcels in the redevelopment area via private transaction. (15) Norwood initiated eminent domain proceedings against properties whose owners refused to sell, including parcels belonging to appellants Carl and Joy Gamble and Joseph P. Horney and his wife, Carol Gooch. (16) According to the Norwood City Code, Norwood could use its eminent domain power as a means to accomplish urban renewal only if the redevelopment area was found to be a "slum, blighted, or deteriorated" (17) area or a "deteriorating" (18) area. (19) In compliance with the Code, the city council hired a consulting firm, which found the redevelopment area to be a "deteriorating area." (20) After receiving the consulting firm's report, Norwood authorized the mayor to appropriate the appellants' property and filed complaints against the appellants to effectuate the appropriation. (21)

The trial court held that Norwood's use of eminent domain to acquire appellants' properties was justified under the Norwood City Code (22) and was constitutional. (23) The trial court found that Norwood abused its discretion by finding that the redevelopment area was a "slum, blighted, or deteriorated area" because that determination was not supported by the consulting firm's report. …

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