Eminent domain task force work ends in uncertainty: Columbus (OH) ThisWeek, 8/3/06

By Michael J Maurer

The Ohio General Assembly's Eminent Domain Task Force wrapped up six months of work during an all-day session Monday, and task force co-chair state Sen. Tim Grendell, R-Chesterland, promised a final report by midnight Tuesday, the statutory deadline.

Despite an immense amount of work by a phalanx of experienced attorneys and association representatives, with testimony having been heard at locations around the state from dozens of interested citizens and representatives of interested agencies such as the Ohio Department of Transportation, task force members found themselves uncertain of the results Monday.

Grendell described the members as "punchy" as the eight-hour session wrapped up, and Cincinnati-area attorney Richard Tranter half-jokingly and half-seriously told the several legislative members that politics would be more important than the task force's work.

"You guys are going to do what you want on this," Tranter said. "Who are we fooling?"

The confusion was exemplified by the task force's final vote among more than a dozen votes held during Monday's session.

The last question the task force had to decide was whether to recommend a constitutional amendment to change Ohio law on takings. The amendment would abrogate Ohio's "home rule" law that gives cities the freedom to adopt their own laws, and instead require that every property in Ohio be subject to a uniform takings standard.

Task force co-chairs Grendell and state Rep. Bill Seitz, R-Cincinnati, had clearly expected the task force to recommend a constitutional amendment that would ensure that all property owners in the state were subject to the same standards.

But when the roll was called, late in the day after several task force members had already left, the tally was first tied, 9-9, and then after a re-tally, the recommendation failed, 10-9.

A nonplused Seitz said the roll would remain open to allow absent members to vote, raising cries of "unfair" from pro-government representatives who wanted cities to be able to exercise broad takings powers to relieve blight and promote economic development.

The task force had been given a difficult task after last year's U.S. Supreme Court Kelo decision that said cities could take private property and give it to developers for the purpose of economic development. The decision outraged much of the public, and, while several states passed statutes or constitutional amendments to limit the practice, Ohio established the eminent domain task force to examine what, if anything, should be done in response. Grendell said that when the task force began its work in February, eminent domain, or "takings," included three basic areas: "traditional" takings such as for roads or utilities, a government power that has existed since before the nation was founded; "blight," typically associated with urban renewal, which has been widely accepted since the 1950s; and "economic development" takings, which was the focus of the Kelo decision.

Only last week, however, the Ohio Supreme Court issued a unanimous decision in a case known as Norwood that strongly disparaged economic development takings. Although a few task force members urged caution about the meaning of the Norwood case — "We don't know (what it means), because the Norwood decision is only five days old," Seitz said — most task force members who addressed the issue said economic development takings had been eliminated in Ohio.

"If the (Ohio) Supreme Court has made one thing clear, it is that there is no such thing as an economic-development take anymore," said attorney Margaret Cannon.

Despite the apparent elimination of Kelo-style takings in Ohio, however, the task force found itself facing contentious internal division over eminent domain in general, including for both urban renewal and even traditional takings for roads and utilities.

Ohio Farm Bureau representative Larry Gearhardt was among those saying Ohio should reexamine all takings, not just economic development takings.

"We are focusing on the type of take it is, rather than the (property owner's) rights issue," Gearhardt said. "The (more important) question is, are you (as a property owner) treated fairly?"

Most of Monday's session, and most of the task force's work since February, focused on matters such as the definition of blight — for example, when should a city be able to take a well-kept house, not because the house itself is a problem, but because too many nearby houses are a problem — and whether the Ohio Department of Transportation is acting appropriately with property owners.

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The proposed state constitutional amendment, voted down 10-to-9 by the Task force, would add a provision to the existing eminent domain section in Ohio's Bill of Rights.

The existing Article I, Section 19, adopted in 1851:
"Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner."

The proposed amendment would add this section:
"No public authority shall take private property for a public use solely for the purpose of increasing the revenues available to any public authority, nor shall the fact that a taking of private property may result in increased public revenues be used as evidence that a private property is blighted. Municipal corporations shall have the same authority to take private property for a public use as the state itself, provided that the municipal corporation exercises that power in conformity with the statutes the General Assembly enacts to govern takings by the state. The provisions of this section shall control in the event of any conflict between this section and Sections 2p and 145 of Article VIII, Ohio Constitution, or Sections 3, 4, 7, and 10 of Article XVIII, Ohio Constitution."