Ohio Supreme Court Hears Eminent Domain Abuse Case

John Kramer
John Kramer · January 10, 2006

Arlington, Va.—Will Ohio homeowners and small businesses have any right to keep their properties, or will state and local governments be permitted to take them away for private developers who claim they can make more money off the land?

On January 11, 2006, the Ohio Supreme Court will be the first state supreme court to hear an eminent domain abuse case after the U.S. Supreme Court removed federal constitutional protection from homeowners and threw the issue back to the states to decide if any state-level protection remains. This case gives the Ohio Supreme Court a prime opportunity to do what the U.S. Supreme Court refused to do in the case of Kelo v. City of New London: protect home and small business owners from eminent domain abuse for private development.

The Institute for Justice, which argued the Kelo case and represents Norwood homeowners Carl and Joy Gamble and local businessman Joe Horney, will argue that the Ohio Constitution places critically important restrictions on government’s use of eminent domain, limiting how and when private property can be taken, and that, in the Gambles’ and Horney’s case, the government overstepped its bounds.

The case began 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 the well-kept neighborhood where the Gambles and Mr. Horney owned homes. Using a “study” initiated and paid for by Anderson after he chose the neighborhood for his development, Norwood declared the well-kept neighborhood “deteriorating” so it could use eminent domain under Ohio law. Under the Ohio Constitution and urban renewal laws, eminent domain can only be used to eliminate actual conditions of slum and blight. A trial court found that the neighborhood is not blighted, but agreed with the City that the neighborhood is “deteriorating” because, among other reasons, it had “diversity of ownership”—in other words, too many people own their own homes and businesses.

“The study was an error-ridden sham, and the City used a broad definition of ‘deteriorating’ that could include virtually every neighborhood in Ohio and the nation,” said Dana Berliner, an IJ senior attorney. “If a city can use a ridiculous definition of ‘deteriorating’ to take normal neighborhoods on behalf of wealthy, politically connected developers, your home or small business could be next.”

“We hope the Ohio Supreme Court will protect our right to keep and live in the home we cherish,” said Joy Gamble, a senior citizen who has lived in her home with her husband since 1969. “Every citizen deserves to be protected from what happened to us; no one should lose their home just because a private developer wants it.”

The Gambles’ and Mr. Horney’s case will be the most important eminent domain case the Ohio Supreme Court has heard in more than 50 years. In 1953, in State ex rel. Bruestle v. Rich, the Court declared that “the power of eminent domain may not be exercised merely or primarily to take private property for private purposes.” Nonetheless, a report by the Institute for Justice found more than 400 instances of threatened or actual condemnations for private profit in Ohio cities in just a five-year period from 1998 through 2002.

In Ohio, 13 organizations—including the Ohio Conference of the NAACP, the Ohio Farm Bureau, the Ohio Association of Realtors and the National Federation of Independent Business—recently filed ten separate amicus briefs with the Ohio Supreme Court in support of the Gambles calling for reasonable limits on governments’ power of eminent domain. The Reason Foundation, a nationally renowned think tank, and the Becket Fund for Religious Liberties, which litigates on religious liberty issues nationwide, also joined these Ohio-based organizations filing “friend of the court” briefs. (Copies of the briefs are available at here.) Each organization described their unique concern with the abuses of eminent domain that have become all too common across Ohio and the nation. Joining these organizations in filing a brief with the court was a group of home and business owners from across the state who have faced eminent domain abuse.

“Eminent domain abuse has struck a nerve with the public nationwide,” said Chip Mellor, president and general counsel of the Institute for Justice. “Those in government power must respect the rights of their constituents and when they don’t it is the duty of the court to strike down this government abuse. That’s what we’re asking the court to do here so every homeowner is protected from the government Goliath.”

“The U.S. Supreme Court dropped the ball in protecting home and small business owners from eminent domain abuse,” said Scott Bullock, an Institute for Justice senior attorney. “Now is the time for the state supreme court to step in to stop the use of eminent domain for private profit in Ohio.”

The Institute for Justice and its Castle Coalition (a nationwide network of citizen activists working to stop the abuse of eminent domain in their communities) is leading the nationwide fight against eminent domain abuse. Legislators in 40 states have or will consider legislation in response to the U.S. Supreme Court’s Kelo decision.