Update due on eminent domain law: Cincinnati (OH) Enquirer, 7/28/06

By Gregory Korte

At the end of its 58-page decision on eminent domain Wednesday, the Ohio Supreme Court added a footnote that could substantially raise the stakes for lawmakers trying to reform the state's decades-old eminent domain statute.

"Footnote 16," as it's already being called, was a coded message to lawmakers: Reform the law allowing government takings, or the courts may strike down Ohio's eminent domain law.

"I think the Supreme Court in that footnote basically said Ohio eminent domain law had become too pro-government and not enough pro-owner," said state Sen. Timothy J. Grendell, a Cleveland-area Republican who co-chairs the Ohio Eminent Domain Study Task Force.

The Supreme Court decision came just three working days before that task force needs to send its recommendations to the General Assembly.

That report could include:
  • A tightened definition of "blight" that would set a standard for how bad the condition of a property should be before the government can take it.
  • A package of procedural reforms that could allow property owners to get moving expenses, loss of business and attorney fees.
  • A proposed state constitutional amendment that would remove eminent domain from cities' home-rule powers so standards would be consistent across the state. Some lawmakers hoped to send it to voters in November, but it probably won't appear until next year, Grendell said.

"What this says to lower courts is, 'Stop rubber-stamping and start using your own judgment. That's your job,' " said Dana Berliner, the plaintiff's attorney in the Norwood case. "That message is throughout the opinion."

Georgetown University law professor John D. Echeverria dismissed the footnote as a "p.s. to the legislature." The real message came early in the decision, he said. "Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers," Justice Maureen O'Connor wrote for the unanimous court.

That could shift the burden to the government to prove its need for the property.

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