Mistrial in property case — Cincinnati (OH) Post, 2/2/05

House display 'outrageous'

By Kimball Perry

Attorney Gary Powell thought the camera inside his Treo 600 cell phone was something he would never use -- until Monday.

"I didn't see a use for it. I'd just as soon not have it. Now, I'm glad I do," Powell said Tuesday, after a judge saw the pictures Powell took with the phone camera and granted his request for a mistrial.

Powell and attorney Tim Burke were hired to represent Norwood in the fight to use its power of eminent domain to seize private property and sell it to a private developer to build Rookwood Exchange, a commercial, office and residential complex.

Monday's trial, before Visiting Hamilton County Common Pleas Court Judge John O'Connor, was to determine the value Norwood would have to pay for the 3811 Edwards Road property owned by Motz Properties. An appraiser valued the property at $175,000.

After the jury was selected Monday, the judge ordered jurors be given a tour of the property to give them a better sense of its worth. Once inside the building, though, the jurors, court workers and attorneys got a surprise.

The owners had festooned the interior with signs, banners and a mannequin dressed in clothes attacking the government's use of eminent domain to seize private property.

That was done, Burke and Powell argued Tuesday, to convince the jury to award Motz a higher price.

"(Motz's) outrageous conduct was calculated to serve no legitimate purpose, but rather to illegitimate(ly) injure the City of Norwood's position in front of the jury," Powell and Burke wrote in their request for a mistrial.

Inside one room of the building, the owner posted editorial cartoons attacking Norwood's use of eminent domain and a photo of a group of protestors in the legal fight over the issue.

The building's back door, which jurors passed to get to the basement, bore a sign reading, "Government Quit Selling Us Out to Developers."

In the basement, jurors saw a banner proclaiming "Fight Eminent Domain Abuse in Norwood" next to a mannequin dressed in a T-shirt that sported an anti-eminent domain message. The dummy also was holding a sign that read "Being Forced to Sell is Just Not Right."

A stunned Powell couldn't believe his eyes, so he whipped out his cell phone and started snapping away.

"Pictures say a lot," he said Tuesday.

"You could not have described it. You needed the pictures," Burke added.

The judge granted the request Tuesday for a mistrial.

The case will be back before O'Connor Thursday for another attempt at a trial, but Powell said Tuesday the sides have agreed in principle on a price for the property and might tell the judge the case has been settled.

Norwood has argued it needs the properties for Rookwood Exchange, planned for 200 condominiums, apartments, retail space and 550,000 square feet of office space. The project and its tenants are expected to pump an additional $1.8 million annually in earnings tax into the coffers of the financially strapped city. The development also will generate an additional $300,000 per year for Norwood schools.

Property owners who didn't sell to the city and critics have argued that using eminent domain to take private property to sell to a private developer is unfair.

The Cincinnati Post: www.cincinnati.com