Eminent-domain task force prepares for its final meeting: Columbus (OH) This Week, 7/27/06

By Michael J Maurer

The Ohio General Assembly's Eminent Domain Task Force held its final work session July 13 and will meet July 31 to approve a report to the legislature.

The task force was created last year in response to a controversial U.S. Supreme Court decision on private property rights.

In a case known as "Kelo," the court ruled that government "takings" power allow local governments to take land from one person and give it to another for the purpose of economic development.

The case set off widespread reaction at the time, with critics saying local governments would use the takings power to increase their tax base, but task force members said the issue has faded since then.

"It's got a different temperature than it did a year ago, when everybody thought Motel 6 was going to get replaced by a Ritz Carlton," said attorney Richard Tranter, a proponent of takings for economic development.

Tranter said takings, or eminent domain, is a complex and technical field of law that is an essential part of government, despite its unpopularity with the public.

"There are certain government powers that are never going to poll well," he said.

Task force co-chair Bill Seitz (R-Cincinnati) said he expects the task force to recommend a constitutional amendment that would prohibit using eminent domain solely for the purpose of increasing the tax base, but he said no such proposal would appear on the ballot this fall. One problem is that any amendment must be approved by the legislature before it can be placed on the ballot, and the deadline for this November's election falls only a week after the task force report is due.

"I don't see that my esteemed colleagues in the House and Senate are going to act in eight days," Seitz said.

Several task force members have said they would prefer there be no constitutional amendment at all, but they would support a narrow amendment in the hopes of preempting any stronger, anti-government amendment that might be sponsored by pro-property rights groups.

"If (the General Assembly) has (a draft amendment) in their pocket and can pull it out, it's there," said Gene Krebs, executive director of Greater Ohio, a nonprofit organization dedicated to land use policy.

During several meetings throughout the year, the task force has focused more on technical issues relating to eminent domain than it has on the particular type of eminent domain that was at issue in the Kelo case, referred to by some task force members as "ED4ED," or "eminent domain for economic development."

Among the other issues the task force has examined is eminent domain for traditional government purposes other than economic development, such as for roads, utilities and government buildings and facilities, and to clear blight in urban areas.

The task force has also examined "quick take" laws that allow the Ohio Department of Transportation and other government entities to take land for roadways without court review. In such cases, the landowner has no right to stop the development, but may go to court to set the value of any compensation paid.

During the July 13 meeting, ODOT director Gordon Proctor compared Ohio's laws, which place most of the cost of attorneys fees and expert witnesses on landowners who wish to challenge takings decisions, to Florida laws that require the state to bear much of that expense.

Proctor said Florida spends about six times as much money as Ohio does to accomplish the same purpose in a comparable-size program, spending as much as $370-million annually compared to about $60-million spent annually by Ohio.

Co-chair Seitz acknowledged Proctor's point, saying that spending government money on attorneys' fees would reduce the money available for road work.

Attorney Bruce Ingram challenged Proctor, saying the cost disparity only proves the state is taking advantage of the expense of legal process to prevent landowners from collecting the value of their land.

"Why should it not be the general public's obligation to bear the expense (of obtaining review of government takings decisions)?" Ingram asked, arguing that it is unfair for landowners alone to pay the cost.

Proctor said it would only serve to make land more expensive for the government.

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