Norwood Eminent-Domain Holdouts Win at Ohio Supreme Court

Well, well, score one for the good guys, from inner-ring Cincinnati “suburb” Norood:

Eminent domain abused
Ohio Supreme Court overrules Norwood home-taking

The city of Norwood cannot use “deteriorating” as a standard for blight to justify the taking of homes by eminent domain, the Ohio Supreme Court ruled this morning.

In holding parts of Ohio’s eminent domain law unconstitutional, the state’s highest court set a different course than the U.S. Supreme Court did in its landmark Kelo v. New London decision last year. There, the Supreme Court ruled that a Connecticut city’s taking of property for economic development was constitutional – but made clear that state constitutions could set different standards for property rights.

The Norwood case is expected to be closely watched around the country. It was the first major eminent domain case to reach a state Supreme Court since Kelo.

….. The unanimous decision, written by Justice Maureen O’Connor, found the state’s eminent domain law unconstitutional for several reasons:

• It allows the taking of private property for solely for economic development. “We hold that although economic factors may be considered in determining whether private property may be appropriated, the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section19, Article I of the Ohio Constitution.”

• Similarly, the standard that Norwood used to take the properties – the fact that the neighborhood was “deteriorating” – is too vague of a concept to justify the taking.

• The appeal provisions of the eminent domain law – prohibiting property owners from appealing the government’s right to take until after a jury determines the compensation – denies the property owners their right to due process.

The unanimous vote in the decision is the biggest surprise, as Ohio’s Supreme Court is often as divided on ideological lines as the US Supreme Court often is.

My immediate reaction: The argument that an area is “deteriorating” is so weak that whoever formulated it should be embarrassed. ALL property is in some degree of deterioration from its originally brand-new condition. Zheesh.

I’ll have more on this later as other reaction comes in.

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UPDATE: You know what they say about a picture being worth 1,000 words. Here’s an aerial view from the Enquirer:

UPDATE 2: Highlights of The Institute for Justice’s press release:

Today, in an historic ruling, the Ohio Supreme Court unanimously held that the City of Norwood could not use eminent domain to take Carl and Joy Gamble’s home of 35 years, as well as the rental home of Joe Horney and tutoring center owned by Matthew Burton and Sanae Ichikawa Burton, for private development—specifically, a complex of chain stores, condominiums and office space planned by millionaire developer Jeffrey Anderson and his Rookwood Partners.

In a unanimous and lengthy decision, the Court laid out a series of important legal opinions. The Ohio Supreme Court explicitly rejected the U.S. Supreme Court’s infamous Kelo decision of June 2005, in which that Court held that local governments can take property from one person and transfer it to another because the new owner might produce more taxes or more jobs than the current one—so-called “economic development.” Second, the Ohio Supreme Court ruled that state courts must apply “heightened scrutiny” to uses of eminent domain, especially when the property is being taken for use by another private party; according to the Court, lower Ohio courts should not simply rubber-stamp decisions by local government to take property. Next, the Court held that statutes authorizing the taking of property cannot be vague. The “deteriorating” standard used by Norwood “is a standardless standard,” and the Court rejected it. Finally, the Court struck down Ohio’s statute that allowed property to be taken even before an appeals court ruled that the taking was legal.

“This decision is a complete and total victory for Carl and Joy Gamble, Joe Horney, the Burtons and every home and business owner in the State of Ohio,” said Institute for Justice Senior Attorney Dana Berliner, who argued the case before the Ohio Supreme Court.

….. “This decision will set an example for the entire country,” explained Scott Bullock, an IJ senior attorney. “Other states will look to Ohio’s well-reasoned opinion in setting their own constitutional standards. The decision also will affect future legislation in Ohio. The Court has just told the Legislature that it cannot use the kinds of vague and standardless definitions that are so common under current Ohio law.

….. “Our home is ours again!” exclaimed Joy Gamble. “The Ohio Supreme Court has stopped this piracy. Now all Ohioans are safe from the scourge of eminent domain for private profit.”

“The Ohio Supreme Court finally made us Americans again,” Carl Gamble added. “We haven’t had the heart or the will to see our home of more than 35 years since the City and the developer forced us out and fenced it off, but I’m sure we’ll be taking a ride back up there today. This is just terrific!”

Joy continued, “Our state Supreme Court did what the U.S. Supreme Court did not do; it protected our home. The Ohio Supreme Court protected small property owners from the overpowering and overbearing city governments and the greedy developers.”

The idea that the taking actually took place “lawfully” before appeals were heard is truly offensive. Never again.

UPDATE 3: Here are the first two paragraphs from the case summary at The Ohio Supreme Court’s web site –

In a multifaceted opinion, the Supreme Court of Ohio today clarified Ohio law on eminent domain, ruling 7-0 to reverse a Hamilton County appeals court and halt the taking of private homes by the City of Norwood to make way for a development complex. Among other findings, today’s ruling: overturned as unconstitutional a portion of Ohio’s eminent domain statute, established that an economic benefit to the community alone does not justify government taking of private property, and set a heightened level of scrutiny for Ohio courts to apply when considering eminent domain cases.

Justice Maureen O’Connor wrote the unanimous majority opinion that balances “two competing interests of great import in American democracy: the individual’s rights in the possession and security of property, and the sovereign’s power to take private property for the benefit of the community.”

UPDATE 4: In AP’s story out of Columbus, the losers aren’t taking it well, and developers involved in other eminent domain projects are acting as if today’s ruling means nothing:

Norwood Mayor Tom Williams defended the plan and said he still believes the project was lawful.

“I believed that we did that right thing then, I believe we did the right thing now,” he said.

Tim Burke, a lawyer hired by Norwood, called the decision a significant disappointment and said it will halt progress on the planned development. He said the city likely will not appeal.

“Norwood, every step of the way, followed the law as it existed,” Burke said.

Development interests in other areas — particularly Cleveland’s Flats development along Lake Erie — signaled their intentions to proceed with plans that involve similar seizures.

“The Flats case is fundamentally different from the Norwood case and as such, we do not believe today’s ruling will impact the outcome of our legal actions,” the Port Authority and The Wolstein Group said in a joint statement.

Readers might find it worth knowing that Tim Burke is the Chairman of the Democratic Party in Hamilton County.

UPDATE 5: More blog coverage and commentary can be found at Volokh (Ilya Somin); The SOB Alliance (Steve Kelso, who also cross-posted at Right Angle); NixGuy (who is correct — Ohio just said “NO” to the Kelo decision); Greater Cincinnati Libertarian Blog; The Wizard at Width of a Circle; City of Tiny Lights; The Dean of Cincinnati at Cincinnati Beacon, with some very good detective work on the power players who attempted to orchestrate the taking; Freedom Works; Vox Bibliothecae; It Shines for All, the New York Sun’s blog; Atlanta’s News; Below the Beltway, who has been following the case for some time; Kim at Wizbang; Dave Roland; Boring Made Dull (”OH Supremes Put the Wood to Norwood”); and Crescat Sententia, who fittingly says, “There is independent life in the Ohio Constitution!”