Ohio Court Should Reaffirm Citizens’ Inalienable Property Rights

William Batchelder, Larry J. Obhof

February 1, 2006

Last month, the Ohio Supreme Court heard oral arguments in two consolidated cases that ask whether the government may take private property from one owner for the purpose of transferring it for the private use of another. These cases, City of Norwood v. Horney and City of Norwood v. Gamble, are of great practical importance to anyone who owns property in the State of Ohio. Quite literally, the court will determine whether the government can take your property, not for use by the public, but rather for the sole purpose of reselling it to developers who want to use the land for something more profitable to the government than your use may be.

The basic facts of Norwood are as follows: A group of developers, seeking to expand on a nearby development by building private office buildings, condominiums, and chain stores, approached the City of Norwood in late 2002 and pressed the city to use its eminent domain powers to obtain the properties needed for the expansion. The city initially rebuked these efforts and urged the developers to attempt to purchase the properties (mostly homes and small businesses) in the marketplace. Rebuffed, the developers tried, unsuccessfully, to purchase all of the desired properties. The city then acquiesced to further requests and agreed to use eminent domain if an “urban renewal study” funded by the developers found the area to be blighted or in danger of becoming a slum.

Not surprisingly, the developer-funded study arrived at the desired result. Although none of the area’s 99 homes or businesses was dilapidated, the Norwood City Council passed an “emergency” ordinance aimed at eliminating so-called “deteriorating and deteriorated areas.” The city did all of this even though it had specifically excluded the same neighborhood from a prior urban renewal plan because the area was in good condition. Notwithstanding the fact that the Ohio Constitution requires the city to put appropriated land to “public use,” on the very same day that the city council authorized the redevelopment plan it also authorized the mayor to enter a contract for the private development of the area.

The besieged homeowners sued to stop the taking and the transfer of their land. Many of the criteria used in the city’s study were either trivial or irrelevant. For example, some of the indications of “blight” included the lack of handrails on steps within homes, the fact that some of the homes were more than 40 years of age (regardless of the condition of those homes), and “diversity of ownership” (meaning that different properties were owned by different persons). At trial, the defendants’ own witnesses admitted that many factors included in the city’s study were also double counted, and that at least 47% of the criteria used were in error. The trial judge, who heard all of the evidence and saw all of the witnesses testify, found that the area was not blighted, and that the city had abused its discretion in finding that it was.

Add to all of these facts the Ohio Supreme Court’s longstanding rule that “the power of eminent domain may not be exercised merely or primarily to take private property for private purposes,” and one would think that this is a pretty easy case for the courts. Think again. Two courts have already permitted the takings in Norwood under the premise that urban redevelopment will indirectly benefit the public. We apparently need not worry about the direct harms to the members of the public who were forced from their homes and businesses.

One does not have to be a lawyer to know that something has gone horribly wrong. The very first section of the Ohio Constitution paraphrases the Declaration of Independence by recognizing that all men have certain inalienable rights. These rights include “life, liberty, acquiring, possessing, and protecting property…” Another provision of the Ohio Constitution states that private property “shall ever be held inviolate,” although subservient to the public welfare when “taken for public use.” Is there really any doubt what the Framers intended by these commands? Ohio’s Founders rightly put property rights on par with life and liberty. They made it absolutely clear that it is the foremost duty of government to secure and protect those fundamental rights.

These fundamental rights are now gravely threatened. Last summer, a narrow majority of the United States Supreme Court held that the Federal Constitution’s “public use” requirement does not mean what it says. Instead, according to the Court, private use accompanied by economic development constitutes a public use. Thus, despite the plain meaning of the Constitution’s text, the government may now take private property and give it to a new private owner, who will also put the land to private use, so long as the government gains some secondary benefit (such as increased tax revenues). This decision, Kelo v. City of New London, was rightly criticized by people all across the political spectrum. Kelo unfortunately remains binding law, and in the post-Kelo world private property owners must look to the states alone for protection.

Of course, given the strong and seemingly clear language of Ohio’s Constitution, one would expect that Ohio’s property owners have nothing to fear. Unfortunately, just the opposite is true. The Norwood plaintiffs are not unique. A recent study by the Castle Coalition shows that during just a five-year period, Ohio landowners were subjected to more than 400 instances in which private property was either appropriated or threatened with appropriation for the private benefit of another. Moreover, as Justices O’Connor and Thomas lamented in dissenting from the Supreme Court’s opinion in Kelo, such government-sponsored land grabs are not random. The beneficiaries of eminent domain use are often those with disproportionate influence and power in the political process. The victims of eminent domain abuse are often those with the least influence and thus the greatest need for protection.

The Ohio Supreme Court now has the opportunity to make history. It is the first state supreme court to address these issues following Kelo. Many more states will follow, and Ohio’s decision in Norwood will serve as a bellwether for other courts looking to protect property rights. The court’s task is not difficult. The words of the Ohio Constitution are clear and the protections they set forth are strong. The court need only look to the text and remember that it is the primary obligation of government to protect the rights of all citizens, and never to abandon that protection when there are profits to be made by private interests.

William Batchelder is a former Ohio appellate judge and a former member of the Ohio House of Representatives. Larry J. Obhof is an attorney and an adjunct assistant professor of law at Case Western Reserve University. With other attorneys, they co-authored a brief filed in the Norwood cases by Mr. Batchelder and the Ashbrook Center for Public Affairs.