Ohio case renews focus on use of eminent domain: The Boston (MA) Globe, 1/12/06

By Andrew Welsh-Huggins, Associated Press
Joy and Carl Gamble say they just want to retire peacefully in the dream home where they had lived for more than 35 years, but the Cincinnati suburb of Norwood has other plans for their property.

Using its power of eminent domain, the city plans to take the neighborhood, which it considers to be deteriorating, and allow a $125 million development of offices and shops to rise in its place.

The two sides took their argument to the state supreme court yesterday in the first challenge of property rights laws to reach a state high court since the US Supreme Court last summer allowed municipalities to seize homes for use by a private developer.

"It is our home, what's ours is ours, and it should be that way," Joy Gamble told about 50 people who rallied before the hearing. "It was a home worth fighting for, and we do want it back."

The Gambles' attorney, Dana Berliner, argued in court that almost all neighborhoods in Ohio and across the country could meet a condition of deteriorating as Norwood was using it.

Tim Burke, representing the city, told the court that "deteriorating" is a common measure when applied to redevelopment projects in cities.

Legislatures are rushing to pass their own laws because Justice John Paul Stevens, author of the majority decision in the federal court's 5-4 ruling, also noted that states have the ability to pass laws with stronger protections if they wish.

So far Alabama, California, Delaware, Illinois, Michigan, Minnesota, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, and Wisconsin have proposed bills, according to the National Conference of State Legislatures.

In Ohio, a new law stops local governments from seizing unblighted private property for use by private developers while a committee studies the issue. The Gambles' lawsuit was filed before that law was passed and before the US Supreme Court ruled.

The city and a private developer contend that Norwood had the right to acquire the property. They also argue that eminent domain applied not because the area is "blighted," but because it is "deteriorating."

How the Ohio court deals with the issue of blight has important ramifications for municipalities around the country, said Steven Eagle, a George Mason University law professor who studies property rights.

"Every jurisdiction allows condemnation to relieve blight," Eagle said. "If blight is going to be vaguely defined, then it could be open season for condemnations for redevelopment."

The Gambles, in their 60s, hoped to live comfortably in the home they had bought in 1969. They sold their small Cincinnati grocery store, Tasty Bird Poultry, and retired five years ago.

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