Eminent domain called last resort: Cincinnati (OH) Enquirer, 6/25/05

But critics feel more vulnerable after U.S. Supreme Court ruling

By Steve Kemme

Communities won't be stampeding to the courts to use eminent domain to seize people's homes and businesses for economic development projects, even as a U.S. Supreme Court decision makes it easier for them to do that, some local government officials and developers said Friday.

Local governments still regard eminent domain as a last resort because it's a long, costly, painful process that's often politically unpopular, they said.

"The court decision is going to help the inner-ring suburbs and the central city revitalize themselves," said David Main, president of the Hamilton County Development Co., which runs the county's economic development department.

"But I don't think there's going to be a rush toward eminent domain."

Yet eminent domain critics say the court ruling makes any home or business in the vicinity of a commercial area more vulnerable than ever.

Robert Blau, an attorney representing homeowners fighting the exercise of eminent domain by Newport over a proposed shopping center near Interstate 471, said many communities will be better disposed to commercial developers.

"I think the entire city of Newport is under threat," he said.

Specifically, the court's landmark 5-4 decision Thursday upheld the right of New London, Conn., to use eminent domain to acquire homes and businesses to allow a developer to raze them and build a hotel, health club and offices.

But more broadly, it established that the benefits of economic development, such as more jobs and tax revenue, are a public good that justifies the use of eminent domain.

The case has many parallels to Norwood's court fight to use eminent domain for an area next to Interstate 71 so that the Rookwood Exchange - a complex of offices, retail, condos and restaurants - can be constructed. The development is expected to infuse $2 million a year in tax revenue to financially strapped Norwood.

It's not clear what impact, if any, the court decision will have on the Norwood eminent domain case, which is before a state appeals court. Although the U.S. Supreme Court removes some obstacles to eminent domain, it still gives the state supreme courts the right to provide more protection for property owners.

The other big eminent domain case in Hamilton County is the fight involving Cincinnati and some property owners in the Calhoun Street business district in Clifton Heights.

Cincinnati wants to seize the property and turn it over to a nonprofit neighborhood development group. This group would buy the properties, demolish the buildings and allow the construction of a $270 million project.

Two holdout property owners recently settled with the city, but the owner of the Hardee's and Arby's restaurants still hasn't agreed to sell.

Robert Manley, an attorney representing the property owners, said the court decision will have little impact on his case.

But Manley, who represented business owners in eminent domain cases connected with the construction of the old Riverfront Stadium and Paul Brown Stadium, said he strongly opposes the court's majority stance on eminent domain.

The court's ruling, Manley said, is based on an assumption that cities' economic development plans actually work and benefit the public good.

"The problem with that is that in the last 50 years, every urban renewal plan Cincinnati has undertaken has failed," he said. "These urban renewal plans are disasters all across the country. And this decision will encourage more disasters."

But Chris Bortz, a lawyer for Towne Properties in Mount Adams and a candidate for Cincinnati City Council, said the court decision benefits Cincinnati by making it easier to assemble a large tract of land in a neighborhood like Over-the-Rhine for redevelopment.

"It's an area where you have a large number of absentee landlords holding onto declining property," Bortz said.

Newport City Manager Phil Ciafardini said the court ruling bolsters Newport's eminent domain case involving the proposed shopping center on the 56-acre site overlooking I-471 between 10th Street and Carothers Road. Lower courts have ruled in Newport's favor. The case is before a state appeals court.

He said Newport won't go on an eminent domain spree.

"It's used as a last resort and very sparingly," he said.

It also can be risky. Voters in Lakewood, Ohio, got involved in an eminent domain fight waged by 17 home and business owners in a neighborhood the Cleveland suburb declared blighted.

But Lakewood voters rejected the development plan in 2003. Last year, the voters rescinded the "blighted'' designation for the area.

Stacey Woolley, a 44-year-old violinist with the Cincinnati Symphony Orchestra who lives in Clifton, said he doesn't feel as secure as he did before the court's ruling.

He lives 1½ blocks north of the Ludlow Avenue business district. He said that even if his block is spared from eminent domain, the area between Ludlow Avenue and his block could be vulnerable.

"I could wind up a half a block from a big parking lot with bright lights and a chain-link fence," he said. "If you live in a transitional neighborhood, you've just been discouraged from putting one penny into your house."

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