5/02/2006

Woman vs. eminent domain: Cincinnati (OH) Enquirer, 3/12/06

She may lose her home of 47 years

By Gregory Korte

Eighty-year-old Emma Dimasi has told friends and neighbors she wants to live the rest of her years on the corner of Clifton and Dixmyth avenues, in the small brick house she's owned since 1959.

The city has given her until Saturday to get out.

In a case that could have statewide implications, a Hamilton County magistrate will decide Monday whether the city of Cincinnati has the right to take Dimasi's house for a $4 million relocation of Dixmyth Avenue.

The taking of Dimasi's house is a routine and long-accepted use of eminent domain for a city like Cincinnati, which has filed 21 such court actions for road projects since 2003.

But Dimasi argues that private economic development - not public transportation - is driving the road project.

That's because Good Samaritan Hospital is contributing $1.28 million toward the project, which would give the hospital more room to grow as it continues a $122 million expansion. Under its agreement with the city, the hospital also stands to get whatever land is left over after road construction for $1.

The case is the first to test an Ohio law banning for one year the use of eminent domain for economic development if the property will ultimately end up in the hands of another private owner. And it's a prime example of what critics say is a legal system that stacks the deck against property owners.

State lawmakers are examining every aspect of that system in the aftermath of a U.S. Supreme Court case that held that states and cities have the power to take private property to give to another private owner. A case now before the Ohio Supreme Court will decide the issue of whether Norwood had the right to take residential property and give it to the developer of a shopping mall.

Dimasi's son and attorney, Vincent Dimasi, who owns an adjacent rental property being taken by the city, said his family isn't setting out to make new law.

"She's lived there almost 50 years. She's 80 years old. She's a widow. The one thing she has is the house," Vincent said. "The one thing my dad did before he died was to make sure she had the house free and clear so there wouldn't be any problems."

Dominico Dimasi died in 1999.

"My mother is not trying to cause trouble for anyone. She's just trying to do the fair thing. To take away her house - which takes away her independence - it would kill her," Vincent Dimasi said.

When Emma Dimasi first moved to Dixmyth Avenue in 1959, the house was valued at $5,570. Good Samaritan had just completed a $5.8 million addition that added 100 beds, a new X-ray department and 12 operating rooms.

The only direction for the hospital to build was up.

A new 15-story tower in 1982 added more beds. The current project is a 10-story tower that can support five more stories that can be added later. The Catholic hospital - the oldest and largest teaching hospital in the region - is now owned by TriHealth.

Landlocked on three sides by Burnet Woods, the Hebrew Union College and Martin Luther King Drive, Good Samaritan has been trying to buy up the property on the north side of Dixmyth Avenue for decades.

Dixmyth hasn't moved since it was a 19th-century cow path named for Richard Smith, a pioneering editor of the Cincinnati Commercial Gazette. (It's thought the spelling was changed to get around a city ordinance that forbade naming streets after living people.)

At one time, Dixmyth ran all the way to Central Parkway, before Cincinnati City Council renamed part of it for King in 1987.

City engineers say they've wanted to straighten and widen Dixmyth since at least the late 1980s, and point to crash data showing the accident rate on Dixmyth is 40 percent higher than the city average.

The current plans began in 2004, and city officials don't deny that the project is closely intertwined with Good Samaritan's expansion.

"It clearly makes the project better for Good Sam. There's no question about it," said Timothy M. Burke, the TriHealth lawyer. He also represents Norwood in the eminent domain case now before the Ohio Supreme Court.

"It's costing us to do this," hospital vice president Stephen Schwalbe testified in court last week. "But at the end of the day, we could improve the traffic flow around Good Samaritan Hospital for generations to come."

Dimasi points to evidence that the city is really acting on behalf of the hospital: Good Samaritan is contributing 32 percent of the estimated cost of the road, plus land it owns north of Dixmyth. After the road is completed, the city will sell any remaining land - including what's left over from the Dimasis' property - to the hospital for $1.

Unapproved conceptual drawings show the hospital constructing medical office buildings north of Dixmyth after the road is done.

Then, there's the timing.

The hospital's last offer to Emma Dimasi came on May 18, 2005. Good Samaritan offered her $99,000 - plus free use of an apartment around the corner for the rest of her life. That offer stayed on the table through at least May 31.

Two days later, the city manager introduced an "intent to appropriate" ordinance to take the Dimasi properties. City Council adopted it, 8-0, with no debate. (Councilman David Pepper was absent.)

When the city filed the eminent domain cases in December, it deposited with the court the amounts that the city said the properties were worth: $150,000 for Emma Dimasi and $160,000 for Vincent Dimasi. The Hamilton County Auditor has them valued for tax purposes at $109,400 and $140,300.

For a third Dixmyth property taken by eminent domain for the project, owned by Philip Giuliani, the city offered $172,500.

That case settled last week, with the city paying $225,130 plus relocation expenses of $14,870 - 28 percent more than the city was first willing to pay.

Dimasi makes an innovative argument, but the law may be on the side of the city.

Under Ohio law, the government's power to take property for roads is almost absolute. All it takes is the say-so of a city council - or in most cases, one man: Gordon Procter, the director of the Ohio Department of Transportation. In fact, the government doesn't even have to show that it has the money for the project - just plans.

The year-long moratorium on economic development takings also may not apply because Cincinnati City Council adopted the ordinance to take the Dimasi properties before the moratorium took effect.

If the Dimasis lose, they can file an objection to the magistrate's decision with Common Pleas Judge Melba D. Marsh.

If they lose there, the city gets the property and the case goes straight to a jury trial to decide the property's value. The Dimasis cannot appeal the city's right to take the property until after that trial - by which time the houses will probably be torn down.

State Rep. Bill Seitz, R-Green Township, is the co-chairman of a 25-member legislative task force now studying eminent domain law in Ohio. He said it's unlikely the state would make any changes that would restrict the use of eminent domain in cases like Dixmyth Avenue.

"Yes, I understand the man's argument," Seitz said. "I would argue that any kind of transportation project that has public use of the thoroughfare - like Dixmyth Avenue - is going to be a proper taking."

But Seitz said there could be procedural changes that would help people like Emma Dimasi, some of which the task force will discuss at a public hearing in Columbus on Thursday:

Should the city have to pay a homeowner's relocation expenses?

If a property owner loses at a right-to-take hearing, should she have the right to immediately appeal that decision to a higher court?

If a court later decides that the property is worth significantly more than the city has offered, should the city have to pay her attorney fees?

"The purpose of this task force is to try to reassess the right balance of power between the sovereign and the property owner," Seitz said. "That is the bottom line."

Mrs. Dimasi, who gets her medical care at Good Samaritan, did not appear in court last week. She declined to be photographed for this story. Her son said she didn't want to become a "personality."

"It's (a) tough experience. She's determined to stay, even though she's 80 years old. She's basically said, 'Bring it on.' "


The Cincinnati Enquirer: http://news.enquirer.com