Clifton Hts. land seizure nullified: Cincinnati OH Enquirer, 1/26/07

Using the Norwood [OH] eminent-domain case as a model, a state appeals court Friday nullified Cincinnati’s seizure of two parcels on Calhoun Street in Clifton Heights and declared the city’s eminent-domain ordinance to be unconstitutional.

The ruling reverses a lower court decision that upheld the city’s right to use eminent domain to take the properties.

The city and a developer used a blight study to take dozens of properties as part of a $270 million redevelopment plan along Calhoun Street.

All of the property owners in the redevelopment district except the owners of a former Hardee’s and Arby’s eventually agreed to sell to the developer, the Clifton Heights Community Urban Redevelopment Corp.

The Ohio First District Court of Appeals said in its decision Friday that many factors that Cincinnati used for designating properties “blighted” or “deteriorating” were struck down in the Ohio Supreme Court’s Norwood decision.”

“In sum, the factors found to be blighting influences in this case simply did not establish that the area was blighted or deteriorated,” says the decision, written by Judge Ralph Winkler. “The structures in the neighborhood were generally in good repair...”

The decision cites the Ohio Supreme Court’s precedent-setting ruling last year that prevented Norwood from using eminent domain to take properties that would have enabled a private developer to build a $125 million office-retail-condo project at Edwards and Edmondson roads.

It was the first eminent-domain case to go before state supreme court since the 2005 landmark U.S. Supreme Court decision upholding New London, Conn.’s right to seize property for commercial development, but permitting states to set their own standards for eminent domain.

Matthew W. Fellerhoff said Cincinnati’s standards for declaring property “blighted” or “deteriorating” were even more vague than Norwood’s.

“The Norwood decision made it easy for the court to decide in our favor,” he said.

City Solicitor J. Rita McNeil said her office will study the appeals court’s decision before recommending whether the city appeal to the Ohio Supreme Court.

“Obviously, I’m disappointed,” McNeil said. We certainly thought we were distinguished from Norwood. We’re evaluating all of our options.”

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