5/23/2005

Eminent domain taking is upheld: The Cincinnati (OH) Enquirer, 5/21/05

Appeals court finds Norwood acted properly

By Sharon Coolidge

The city of Norwood [OH] properly used eminent domain when it seized five properties off Interstate 71, saying the homes and businesses on the land were deteriorating and posed a danger to the community, the 1st District Court of Appeals ruled Friday.

Norwood handed over the land to Anderson Real Estate and Miller-Valentine Group after seizing the properties, citing a study that found the property was deteriorating. They are building a $175-million complex of offices, shops, residences and restaurants. The developers have bought 65 other properties in the area bounded by I-71 and Edmondson and Edwards roads, most of which have already been razed.

The ruling upheld a June 2004 decision by Hamilton County Common Pleas Court Judge Beth Myers.

"The Ohio Supreme Court requires that we give the definition of 'blighted area' a liberal interpretation," wrote 1st District Court of Appeals Judge Mark Painter.

"Once a legislative determination of blight has been made, courts are required to and should be zealous in giving such determination by the city great weight.

"We will not substitute our judgment for that of the legislative body of the city," Painter added.

The decision addressed two properties specifically - a rental home on Delmar Avenue owned by Joe Horney and a home on Atlantic Avenue owned by Joy and Carl Gamble.

But the same argument applies to a third property, the Kumon Math and Reading Center on Edmondson Road.

The owners of Wilker Design on Edwards Road are appealing the city's use of eminent domain separately and the owner of Hyde Park Holistic Center on Edmondson Road has since dropped his appeal.

The Washington, D.C.-based Institute for Justice, a public-interest law firm which represents Horney and the Gambles, said it will ask the Ohio Supreme Court to take the case. Ohio's high court has already said the properties in question cannot be destroyed until the issue is resolved.

Horney and the Gambles have vowed to continue to fight against the taking of their property.

"The appeals court's decision opens the floodgates to further abuse of eminent domain," said Bert Gall, an attorney at the Institute for Justice. "Under its decision, developers are free to buy out a city's power of eminent domain for private development projects. The United States and Ohio constitutions forbid that result, and we are confident that we will prevail at the Ohio Supreme Court."

Norwood's attorney, Tim Burke, said he doesn't expect the Ohio Supreme Court to take up the case.

"Given four judges have all looked at the case and all have decided in favor of the city of Norwood, I think it reduces the likelihood that the Ohio Supreme Court will take jurisdiction over the case," Burke said. "Frankly, I really hope people recognize the fight is just about over and maybe it's time for everyone to move on and allow this project to go forward."

Attorney Richard Tranter, who represents Anderson Real Estate and Miller-Valentine Group, added, "This decision confirms that Norwood's urban renewal process was open, deliberative and served the community interest."

Although the developers cannot touch three properties involved in the appeal, they are close to completing the demolition of the other 68 structures on the 10-acre site, which is the first step of Rookwood Exchange.

Tranter would not comment on when building will begin.

Friday's unanimous appellate decision by Painter, Lee H. Hildebrandt Jr. and Robert Gorman said the city did not abuse its discretion in finding that the area was in danger of deteriorating into a blighted area.

"In our system of government, we require judicial deference to be given to a city council's decisions," Painter wrote. "...legislatures are better able to assess what public purpose should be advanced by the exercise of eminent domain."

The appellate court pointed out that the Norwood council considered several factors, including traffic congestion, noise, diversity of ownership, safety issues because of dead-end streets and the quality of residential living in the area at night because of lights from nearby developments.

After hearing what Norwood considered, Myers found the city had sound reasoning in taking the property. The appellate court agreed.

The Institute of Justice also argued that Norwood's urban renewal plan didn't comply with city code, that eminent domain can't be used to eliminate deteriorating conditions and that the city was using the deteriorating designation to mask the real reason for wanting the property.

The appellate court found no merit in those arguments.

Norwood Mayor Tom Williams said he's pleased with the appeals court's decision. "A Common Pleas Court judge and three appellate court judges have said that Norwood followed the law in the action we took," he said. "It's time for this project to move forward."



TIMELINE

Fall 2002: Anderson Real Estate and Miller-Valentine Group begin talking about Rookwood Exchange, a $175 million shopping and office complex off Interstate 71.

August 2003: Norwood City Council accepts an urban renewal plan that finds property in the area is deteriorating, thus can be seized through eminent domain.

November 2003: Norwood files to take the five properties through eminent domain. Owners of the other 65 properties needed for the project agreed to sell.

September 2003: The property owners file a lawsuit in Hamilton County Common Pleas Court challenging the eminent domain action.

June 2004: Hamilton County Common Pleas Judge Beth Myers ruled the city properly used eminent domain power.

February 2005: The Ohio Supreme Court says three of the properties in question cannot be destroyed until the appeals process is finished.


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