What is Eminent Domain?
In Ohio, eminent domain gives the government the power to take your property, even if you don’t want to sell. But under the Fifth Amendment, eminent domain must be for a “public use,” which traditionally meant projects like roads or bridges. Meanwhile, the government must pay the owners “just compensation” for their property.
The Supreme Court Decision, Kelo v. New London, Made It Much Easier to Abuse Eminent Domain
Unfortunately, the U.S. Supreme Court gutted federal protection against unconstitutional eminent domain when it handed down its decision in Kelo v. New London in 2005. By a vote of 5-4, the Supreme Court dramatically expanded the definition of “public use” to include private economic development. In other words, local governments can condemn homes and businesses and transfer them to new owners if government officials think that the new owners will produce more taxes or jobs with the land.
As Justice Sandra Day O’Connor warned in her dissent: “The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”
Ohio Responds to KElo
Thanks to extraordinarily permissive laws, eminent domain abuse in Ohio had been widespread prior to Kelo. But in July 2006, the Ohio Supreme Court became the third state supreme court to reject Kelo when it unanimously ruled in Norwood v. Horney that the Ohio Constitution does not permit eminent domain to be used solely for economic development.
“We hold that an economic or financial benefit alone is insufficient to satisfy the public-use requirement,” the Court declared. “In light of that holding, any taking based solely on financial gain is void as a matter of law, and the courts owe no deference to a legislative finding that the proposed taking will provide financial benefit to a community.”
The Ohio Supreme Court also ruled state courts must apply “heightened scrutiny” when reviewing governmental uses of eminent domain, and that cities could not constitutionally condemn non-blighted properties based on the idea that they might eventually become blighted.
“After all, if one’s ownership of private property is forever subject to the government’s determination that another private party would put one’s land to better use,” the Court declared, “then the ownership of real property is perpetually threatened by the expansion plans of any large discount retailer, ‘megastore,’ or the like.” The Ohio Supreme Court’s holdings represent a dramatic improvement in the legal protections for home and business owners in the state.
Less than a year after Horney, the Ohio General Assembly passed SB 7, which made some modest procedural and compensation changes. Although the law provides better notice for property owners when their land is under threat, SB 7 will not stop eminent domain abuse. Ohio’s eminent domain law continues to allow a combination of subjective factors (such as age and obsolescence, dilapidation and deterioration, excessive density, faulty lot or street layout) to be used by condemning authorities to take property for private gain. Additionally, only 70% of homes must qualify under this ambiguous and expansive definition for an entire neighborhood to be condemned.
In order to ensure that Ohioans no longer must fear becoming the target of eminent domain abuse, and in the event the removal of blight remains a permissible reason to use eminent domain, the legislature needs a statewide definition of blight so that the term is given clear and limited meaning, as well as a constitutional amendment to give it effect in home-rule cities. Furthermore, blight designations need to be on a parcel-by-parcel basis, rather than threatening entire neighborhoods based on the condition of a few ill-kept houses.
Is the Government Trying to Take Your Home or Business with Eminent Domain?
PC: Eminent Domain
"*" indicates required fields
Even if the Institute for Justice cannot take your case, IJ has created the Eminent Domain Abuse Survival Guide to help people fight back. These methods for grassroots activism can be enormously successful. Through community organizing and activism alone, the Institute for Justice has teamed up with local communities to help save nearly 20,000 homes and small businesses from condemnation or being labeled as “blighted” or “in need of redevelopment,” the precursor to eminent domain in many states.
Eminent Domain Facts
Myths about eminent domain abound. Here are the facts:
Eminent Domain is Not a “Last Resort”
Eminent domain is not just abused when people lose their homes in court. It is also abused when a home or business owner sells under the threat of condemnation. The government’s ability to condemn property is so ominous that the mere threat of eminent domain influences all “negotiations.”
Truly voluntary negotiation is impossible when one party has the power to get what it wants no matter what; if the government can take any property it wants, owners have no real power in negotiation. So when officials say they will use eminent domain only as a last resort, it simply means they will use force to take people’s property against their will if they do not agree on a price.
Economic Development Does Not Need Eminent Domain
Projects that use eminent domain often fail to live up to their hype and can end with vacant lots and empty promises. By imposing tremendous costs (both social and economic) in the form of lost communities, uprooted families and destroyed small businesses, eminent domain often thwarts, rather than helps, economic growth. Instead of seizing private property, cities can streamline regulatory barriers, like permitting and zoning laws, and usher in development without eminent domain.
Eminent Domain Harms Vulnerable Communities
Communities targeted by eminent domain for private development are much more likely to be communities of color, while residents are much more likely to live at or below the poverty line and have lower levels of income and education than surrounding neighborhoods, according to research by the Institute for Justice. Cities often target these communities for condemnations, as government officials know the residents there rarely have the political clout or the financial means to fight back.