2007 Eminent Domain Report Card: Ohio Gets A “D”

Matt Powers
Matt Powers · June 6, 2007

Arlington, Va.—Ohio home and small business owners have reason to be concerned according to a 50-state eminent domain report card released today. In the two years since the infamous Kelo eminent domain ruling from the U.S. Supreme Court that allowed eminent domain for private gain, Ohio’s legislature as done little to protect property owners across the state.

“Ohio homeowners are more protected from eminent domain abuse today than they were the day the Kelo decision was announced, but that protection has come from the courts, not the legislature,” said Steven Anderson, director of the Castle Coalition, a national grassroots organization that examined and graded eminent domain laws for each of the 50 states since the Kelo ruling. Read the report at: www.CastleCoalition.org/publications/report_card.

According to the report, “Thanks to extraordinarily permissive laws, eminent domain abuse in Ohio has been widespread in recent years. Since the U.S. Supreme Court delivered the Kelo decision, Ohio has seen some major changes to its eminent domain laws—but the state legislature can claim precious little responsibility for these changes.”

On July 26, 2006, the Ohio Supreme Court unanimously ruled in Norwood v. Horney that the Ohio Constitution does not permit eminent domain to be used solely for economic development, that Ohio 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. The Ohio Supreme Court’s holdings represent a dramatic improvement in the legal protections for home and business owners in the state.

The Ohio General Assembly commissioned a Legislative Task Force to study the use of eminent domain in the state, and took a “wait-and-see” approach while the Norwood case worked its way through the court system. The legislature imposed a statewide moratorium on taking properties in non-blighted areas when the primary purpose is economic development and the taking would ultimately transfer the condemned property to other private parties. If a government entity violated the moratorium (which expired on December 31, 2006) the offending municipality would lose public funding on its project.

Now that the Ohio Supreme Court has emphatically articulated constitutional limits to the use of eminent domain in Ohio and instructed courts to carefully scrutinize local governments’ efforts to condemn the homes and businesses of their citizens, the Ohio General Assembly’s job is simplified considerably. In order to ensure that Ohioans no longer have to 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 must be made on a parcel-by-parcel basis, rather than threatening entire neighborhoods based on the condition of a few ill-kept houses.

Among the states that passed the strongest reforms protecting property owners are Florida, Michigan, Nevada, New Mexico, North Dakota and South Dakota, each of which received an A or A- grade. States that received F’s were: Arkansas, Connecticut, Hawaii, Maryland, Massachusetts, Mississippi, New Jersey, New York, Oklahoma and Rhode Island.

“In only two years since Kelo, 41 states have reformed their laws to offer greater protection to small property owners,” said Jenifer Zeigler, legislative affairs attorney with the Castle Coalition. “But much more work remains if homeowners, small business owners, farmers and churches in Ohio and beyond are to be safe from the unholy alliance of tax-hungry governments and land-hungry developers.”

The report seeks to step back and evaluate the legislative work that has been done and is left to do. It finds, “Some states have passed model reforms that can serve as an example for others. Some states enacted nominal reform—possibly because of haste, oversight or compromise—and need to know what is left to fix. And finally, there are those states that have failed to act altogether, leaving home, farm, and business owners threatened by Kelo-type takings and beyond.”

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[NOTE: To arrange interviews on this subject, journalists may call John Kramer, the Institute for Justice’s vice president for communications, at (703) 682-9320 ext. 205 or in the evening/weekend at (703) 527-8730. For more information on eminent domain abuse, visit www.ij.org or www.castlecoalition.org.]