XU might use eminent domain: Cincinnati OH Enquirer, 9/6/06

Houses stand in way of business college

By Gregory Korte

Xavier University is exploring the use of eminent domain - "as a last, last resort," school officials say - to take privately owned houses in Evanston to build a new business college.

If it follows through, Xavier's move would be a rare - but not unprecedented - attempt by a private university to exert the same land-acquisition powers granted the state, cities and even public universities.

The idea comes at a time when state legislators are rewriting the eminent-domain law in the wake of the Ohio Supreme Court decision that struck down part of the law as unconstitutional.

Xavier has been quietly buying properties near campus for years but has stepped up acquisitions after announcing last year its intention to build a business college on Ledgewood Drive in Evanston.

The 175-year-old Catholic school has bought seven properties for $2.3 million on the street so far this year.

It has paid an average of 2½ times their appraised value by the Hamilton County Auditor's Office. Xavier wants to break ground on the college next year.

Michael Cissell, who owns a house on Ledgewood that he rents to Xavier students, said he's not ready to sell.

"The thing is, I don't have a problem with them buying it. It's progress, and I'm all for that. What I have a problem with is them coming to me and saying, 'We want your property, and if you don't want to sell, we'll take it from you,'" Cissell said. "What's the point of private property if they can take it - Norwood, a private school, anybody? People with money and power will take what they want, and there's nothing we can do about it."

Cissell's uncle is Hamilton County Probate Judge James C. Cissell, a member of the Ohio Eminent Domain Study Task Force that recommended changes to the state's eminent-domain law last month.

Judge Cissell specifically tried to make some of those recommendations apply equally to governments and private entities - cemeteries, utilities and private colleges - which also have powers of eminent domain. That language was cut from the final report.

The unusual situation raises an interesting new wrinkle to the current eminent-domain debate: If the government shouldn't be allowed to take private property to give to another private owner, does it make a difference whether the private interest is a shopping mall, or a private university?

"If it was UC, the answer would be a no-brainer," said state Rep. Bill Seitz, R-Green Township, the co-chairman of the eminent domain task force. "Since it's XU, I don't know what the answer is. It's a very interesting question."

Seitz said he'd be more comfortable with the situation if the Ledgewood Drive properties were blighted - under the new, stricter definition of blight that lawmakers are considering - and asked the city of Cincinnati to clear the property on that basis.

In its July 26 opinion, the Ohio Supreme Court said it was unconstitutional for the government to take property from one private owner to give to another - unless the taking provides some public benefit other than an increase in the tax base. That decision wouldn't apply to Xavier, because the state has held that classrooms and dormitories are a public purpose, even for a private university.

That's been the case since at least 1963, when the state Legislature created the Ohio Board of Regents to coordinate the state's higher education system. The law allowed private colleges to ask the Regents to "borrow" its eminent-domain powers.

Xavier University has "explored how the process works" but has not made any formal request to the Board of Regents, administrative vice president John Kucia said.

"The decision to use eminent domain is such a serious decision that it's an option of last resort," he said. "We're nowhere near that with any of the property owners we've been in discussion with."

A spokesman for the Ohio Board of Regents confirmed that Xavier has discussed the matter with attorneys for the Board of Regents.

State officials can recall only two similar cases, most recently at the private Tiffin University earlier this year. Both settled out-of-court before going to a jury trial.

In Tiffin, a lawyer for the property owners argued that it's unconstitutional for a private college to use the state's eminent-domain powers. That argument never got to a judge before the owners agreed to sell for $430,000.

Tiffin University President Paul Marion said many supported the university's taking of the property, which he described as a "polluted, ugly scrap yard" in the middle of a residential neighborhood.

"Needless to say, there was a lot of support for turning it into an educational benefit for the community as opposed to an environmental hazard. That is not to say there are not a few people who don't like the concept of eminent domain."

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