An unfair financial burden: Cincinnati OH Post, 11/30/06

Commentary
For the Fennell family, it has been a nightmare.

For over a hundred years they've owned a little piece of downtown Newport at the corner of Fourth and York streets, land where they've operated a successful piping business and leased buildings to other successful businesses like Goodyear Tire & Rubber and an auto detailer.

They've paid their taxes, provided jobs and generally kept up the property. In other words, they've been a valuable asset to the city.

Then the Transit Authority of Northern Kentucky decided it wanted the Fennell's land for a bus depot that would allow it to consolidate nine different bus stops.

After nearly a decade of stress, struggle and legal fighting, the family has prevailed: Last week a circuit judge in Campbell County (for the second time) rejected TANK's attempt to force the family to sell the property.

TANK has neither the financial resources to build the $8 million transit center nor a clear sense of what it wants to do, Judge Julie Reinhardt Ward wrote in her ruling. Both elements are critical standards that must be met when a government agency wants to take land from private owners for a public purpose.

Ward's ruling was similar to a 2003 ruling by her predecessor, Judge William Wehr, that was successfully tossed because of a technicality.

But Ward declined to force TANK to pay attorney fees for the Fennells, which had reached $333,000 as of the first ruling and now were said in one published account to approach $700,000.

We think that's wrong.

Judge Ward's discretion was apparently based on precedent: Kentucky's statutes do not require attorney fees to be paid in unsuccessful eminent domain cases, and there's little case law in the state - little precedent - that provides for it.

The one case that applies requires a judge to find that the agency in some way acted in bad faith or abused the process - such as causing unreasonable delay - in trying to force the sale of the land. Ward said she could not make such a finding: "This Court does not believe that there is sufficient evidence that TANK was proceeding with the case in an effort to wear out the Respondents," she wrote.

We're not going to argue the merits of that conclusion, even as we point out that TANK persisted in its case even after it lost once in circuit court and after it lost the federal funding for the project.

But we do submit that there is something seriously flawed in a system that requires a property owner to spend that kind of money to fight off the government's unsuccessful attempt to take their land.

It's not that we're against eminent domain, and government agencies' attempts to use it. Properly used, condemnation is a reasonable legal tool that enables roads, sewer plants, water lines and the like to be built. Local governments, particularly those in established urban areas, need to have ample tools - including eminent domain - to promote redevelopment, especially if we're serious about trying to limit suburban sprawl and about revitalizing our urban cores.

But when the courts rule that the government fails to make its case, that eminent domain is inappropriate or unnecessary or illegal, it's patently unfair to punish property owners with crushing financial burdens merely for sticking up for themselves.

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Cincinnati OH Post: http://news.kypost.com