A Post-Kelo Test In Ohio

The Ohio Supreme Court is hearing arguments today in what is being called the first significant eminent domain case to be argued since the U.S. Supreme Court’s decision last June in Kelo v. City of New London. As with the Kelo case, the case being argued this morning in Columbus involves a homeowner facing the loss of their property at the hands of a government that wants to hand that property to private developers.

COLUMBUS, Ohio — Joy and Carl Gamble say they just want to retire peacefully in the dream home where they’ve lived for more than 35 years. But the Cincinnati suburb of Norwood has other plans for the property.

Using its power of eminent domain, the city wants to take a neighborhood that it considers to be deteriorating and boost its fortunes by allowing a $125 million development of offices and shops.

And the city’s justification for taking a home that the Gamble’s have owned for 35 years ?

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.”

Like many jurisdictions, Ohio is studying the possibility of passing a law that would limit the right of municipalities to use eminent domain to give property to private developers.

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 U.S. Supreme Court ruled.

Though not mentioned in the article, it appears that the Gambles cannot take advantage of this moratorium since they filed suit before the law was passed.

And, not surprisingly, the Gamble’s are upset:

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.

Instead of a comfortable retirement, however, they watched their neighborhood disappear as neighbors sold willingly to developer Rookwood Partners. The Gambles temporarily left their home to live with a grown daughter in Kentucky but vow to return should they win the case.

Joy Gamble speaks bitterly about the couple’s ordeal and what it meant to see their home of 35 years, purchased after years of savings, in danger of demolition.

“When the municipalities and the people that have lots of money decide they want what you have, you don’t own it,” Gamble said. “You bought it, you paid for it, you kept the taxes up, you kept the appearance up, but it wasn’t yours.”

Jacob Sullum at Hit & Run has this to say about the importance of this case:

This is the most important state eminent domain case since the U.S Supreme Court last year upheld condemnations for private development in Kelo v. New London. The Ohio Supreme Court has declared that “the power of eminent domain may not be exercised merely or primarily to take private property for private purposes,” and it has never ruled on the condemnation of “deteriorating,” as opposed to “blighted,” property. A victory for the owners would provide further evidence that state courts are prepared to interpret state constitutions so as to curtail eminent domain abuse, meaning that new legislation is not the only solution to the land grabs encouraged by Kelo.

Keep your eyes on this one.

Update 1/12/05: Via Todd Zywicki at The Volokh Conspiracy, here are online resources related to the case:

Copies of all briefs filed in the case can be found here.

Archived video of Ohio Supreme Court arguments are available here and the direct link to the Norwood argument, in Real Media format, is available here.

Cross-Posted at Below The Beltway

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