Expanding the Kelo Fight

December 2005

Expanding the Kelo Fight

IJ Case in Ohio Will Determine Limits On Eminent Domain in the Buckeye State

By Scott Bullock

In October, the Supreme Court of Ohio accepted for review the most important post-Kelo eminent domain case in the country: Gamble v. City of Norwood.

The bright spot of the U.S. Supreme Court’s otherwise dreadful opinion in Kelo v. City of New London is its reminder to state courts that they are free to recognize greater protections for home and small business owners under their respective state constitutions. Indeed, it almost seemed like Justice Stevens, the author of the majority opinion, invited them to do so. Now, Ohio residents will be the first in the nation to learn if their supreme court steps up and does what the U.S. Supreme Court failed to do: protect home and small business owners from eminent domain abuse for private commercial development.

IJ litigated the Kelo case from the trial court all the way up to the U.S. Supreme Court. Likewise, we litigated the Norwood case, now before Ohio’s top court, from the very beginning. The case started when private developer Jeffrey Anderson decided that he wanted to expand his $500,000,000 real estate empire by building a complex of chain stores, condominiums and office space on top of a neighborhood where our clients have their homes and a business. Using a “blight” study initiated and paid for by Anderson, the City of Norwood declared the well-kept neighborhood “blighted” and “deteriorating” so it could use eminent domain to take properties from those who refused to sell. The blight study was such a sham that the trial court found the City Council had abused its discretion by labeling the area blighted. However, the Norwood city code also allows the use of eminent domain if a neighborhood is “deteriorating,” a standard so broad and vague that virtually any neighborhood in Ohio would meet it. For instance, under the Norwood code, a neighborhood can be called “deteriorating” if it has “diversity of ownership” alone—in other words, several people owning separate parcels of property within a certain area, almost a textbook definition of an ordinary neighborhood.

In 1953, the Ohio Supreme Court held that blighted property could be taken for urban renewal purposes, but it has never held that property could be taken simply for economic development purposes or under the absurdly broad “deteriorating” standard. The Norwood case will determine whether there will be any meaningful limits on the use of eminent domain in Ohio. Carl and Joy Gamble, who stand to lose their home of over 35 years, will be watching very closely. So will all home and small business owners in Ohio and throughout the country.

Scott Bullock is an IJ senior attorney.