State task force seeks constitutional amendment: Columbus (OH) ThisWeek, 8/10/06

By Michael J Maurer

The Ohio General Assembly Legislative Task Force to Study Eminent Domain has called for a constitutional amendment to establish a single, statewide standard for eminent domain, or "takings," the power of government to force private property owners to sell involuntarily.

The task force was established last year, following the U.S. Supreme Court's decision in Kelo, which found that cities could take property and transfer it to private developers for the purpose of economic development. Although the decision was met with widespread public outrage, the court also noted that states could adopt a more protective standard.

The task force issued its report on its statutory deadline, Aug. 1, culminating six months of work, including sessions in Columbus, regional meetings around the state and extensive research by the Legislative Service Commission.

The constitutional amendment recommended by the task force would abrogate "home rule" powers of cities, which otherwise might be able to adopt differing standards for eminent domain.

In final comments, task force co-chairs state Sen. Tim Grendell, R-Chesterland, and state Rep. Bill Seitz, R-Cincinnati both said a uniform state standard is essential.

"In a word, private property rights must be protected the same in Ashtabula as in Zanesville," Seitz said, saying that of all the task force recommendations, "none is more important than the proposed constitutional amendment."

Home rule cities that seek to use broad takings powers for economic development are certain to disagree, said task force member Joseph Ditchman, representing the National Association of Realtors and Ohio Association of Realtors.

In addition to abrogating home rule powers, the amendment would also preclude takings "solely" for economic development.

Some task force members, including co-chair Seitz, have said that whether economic development may be a factor in addition to other factors is a distinct question.

Other task force recommendations include changes to the definition of "blighted property," speaking to when a property has become so dilapidated that it is subject to government taking, and "blighted area," which would allow the government to take even well-cared for properties if the area surrounding them is sufficiently blighted. The task force recommended that "blighted area" takings be allowed only when at least 50 percent of all properties in the area sought to be redeveloped meet the blighted property definition.

During its extensive meetings, the task force addressed three different types of takings, including "economic development" takings that were the subject of the Kelo decision; "blight" or "urban renewal" takings, which are used by cities to redevelop areas or individual properties that are declared to be below community standards, and "traditional" takings for commonly accepted government uses, such as roads, utilities and government facilities, or private uses long accepted to serve a public purpose, such as utilities.

Some task force members felt the task force report was not sufficiently protective of private property rights. Columbus attorney Bruce Ingram criticized the task force for not recommending that the government pay attorneys fees for taxpayers who lose property involuntarily to the Ohio Department of Transportation and other government agencies.

"The eminent domain task force has abdicated its responsibility to the vast majority of Ohio landowners whose property is taken by eminent domain," Ingram said, arguing that ODOT has too much power to take land without review by a judge.

With the filing of its report, the task force has completed its work and disbanded. Any further work on eminent domain is expected to be the province of the legislature. State Rep. Jon Husted, R-Kettering, Speaker of the House of Representatives, said last week he did not expect the General Assembly to act on the matter this year.

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