Ohio Court Rules Victims of Eminent Domain Abuse Must Be Made Whole

John Kramer
John Kramer · September 25, 2007

Arlington, Va.—Ohio developers and cities will be held financially accountable for the damage they cause to private property they unconstitutionally take. That was the ruling today from an Ohio court.

Today, Judge Beth Myers of the Hamilton County Court of Common Pleas ruled that Matthew and Sanae Ichikawa Burton are entitled to receive compensation from developer Jeffrey Anderson and the City of Norwood for their illegal use of eminent domain to take the Burtons’ small business. In July of last year, in Norwood v. Horney, a unanimous Ohio Supreme Court held that the city’s use of eminent domain to take homes and businesses in the Edwards Road Area and transfer them to Rookwood Partners—a group spearheaded by Norwood-based developer Jeffrey Anderson—so that it could expand a nearby shopping center violated the Ohio Constitution.

“Today’s decision ensures that abusers of eminent domain will not be able to damage properties, destroy businesses, and then wash their hands of all responsibility,” said Bert Gall, a senior attorney at the Institute for Justice, which successfully represented the Burtons and other property owners before the Ohio Supreme Court in the landmark eminent domain case of Norwood v. Horney. “If Rookwood had simply allowed the Burtons to stay in their property while they appealed their case, then we wouldn’t have to be in court.”

In April of 2005—while the Burtons’ case was working its way up to the Ohio Supreme Court—Rookwood Partners unnecessarily forced the Burtons out, causing damage to the property. The Burtons sought compensation for the taking of their property in order to make repairs that will restore the property to its pre-condemnation condition. Both the developer and the city denied any legal responsibility for their actions, but today’s decision clearly states that they must make the Burtons whole.

The decision states, “The Court finds that, in order to carry out the Supreme Court’s ruling, the Burtons are entitled to be placed in the position they were prior to the taking.” Furthermore, “In order to unwind the appropriation [of their property], the Burtons are entitled to have their property back in substantially the same condition it was before the taking.” The court also stated that, at a later date, it will conduct a hearing on the amount of compensation that will be required to undo the city’s and Rookwood’s actions.

“All we have ever wanted is to be made whole—to be able to return our business to its condition before Rookwood and the City illegally took it from us,” said Matthew Burton. “We never asked to have our property taken away and damaged, but Rookwood forced us out even though it didn’t have to. We are very pleased that the court is going to hold Rookwood responsible for its actions, and we hope we can get our property up and running very soon.”

Norwood v. Horney was the first eminent-domain-for-private-development case to be argued before and decided by a state supreme court after the U.S. Supreme Court’s infamous decision in Kelo v. City of New London. The Burtons’ case was returned to the trial court to resolve, among other things, the damage suffered by their property during the eminent domain proceedings. In addition to requiring the City and Rookwood to make the Burtons whole, the court stated the Burtons will have to pay to Rookwood the $96,000 that the Burtons’ mortgage company withdrew from the condemnation award after the trial court initially ruled that eminent domain could be used to take their property.