Ohio Appeals Court Allows City to Abuse The Power of Eminent Domain

John Kramer
John Kramer · May 20, 2005

Washington, D.C.—Today, the First District Court of Appeals of Hamilton County in Ohio held that the City of Norwood could condemn the home of Carl and Joy Gamble and the rental home of local businessman Joe Horney for the benefit of private developer Jeffrey Anderson.

Anderson’s Rookwood Partners wanted to demolish the Gambles’ middle-class neighborhood so that he could build a high-end shopping center with office space and condominiums. Thus, he initiated and paid for the City to conduct a study to find that the neighborhood is “blighted” and “deteriorating.” The Hamilton County Court of Common Pleas ruled that the Norwood City Council abused its discretion when it found that the area was “blighted,” but said that its determination that the area was “deteriorating” allowed it to take the neighborhood for Anderson’s benefit. The Court of Appeals affirmed that decision—even though the City’s definition of deteriorating is so ridiculously broad that it could be used to condemn just about any well-kept residential neighborhood in the country. (Among the criteria the City used to justify the “deteriorating” designation was “diversity of ownership”—meaning that each home and business in the neighborhood is owned by a different person.)

Carl and Joy Gamble, senior citizens who had lived in their home for 35 years before the City took it from them in February on Anderson’s behalf, said, “We’re disappointed but we intend to win and move back into our home. What has happened to us shouldn’t be allowed to happen to anybody.”

Joe Horney said, “We’re going to keep fighting Norwood’s and Anderson’s blatant abuse of power, and we’re going to win. The Gambles and I are fighting to get back what’s rightfully ours.”

“The appeals court’s decision opens the floodgates to further abuse of eminent domain,” said Bert Gall, an attorney at the Institute for Justice. “Under its decision, developers are free to buy out a city’s power of eminent domain for private development projects. The Constitution forbids that result, and we are confident that we will prevail at the Ohio Supreme Court.”

Despite the Court’s decision, an injunction issued by the Ohio Supreme Court remains in place and prevents Anderson from tearing down or damaging the Gambles’ home and Mr. Horney’s rental home. An injunction issued by the Court of Appeals protects the Kumon Math and Reading Center, which is owned by Matthew and Sanae-Ichikawa Burton. Thus, despite today’s decision, Anderson is still forbidden to bulldoze their properties.

“Every homeowner and small business person in Ohio should be very concerned with today’s decision because every neighborhood could meet the standard of ‘deteriorating’ the Court accepted as a justification for these takings,” said Gall. “If your perfectly fine and decent neighborhood isn’t as new and glitzy as the one next door, beware: your home, your neighborhood could be the next one targeted for eminent domain abuse under today’s ruling by the Ohio First District Court of Appeals.”

Gall said, “Despite the fact that right down the line developer Jeffrey Anderson and his Rookwood partners have been dictating what homes they want for their private development, the Ohio courts continue to turn a blind eye to these dealings and tow the line that Norwood is directing the actions. But for Anderson, none of this would be going on. He is driving this project, not the City.”

The Court wrote, “In view of the rights and emotions involved in this dispute, it is no wonder that the owners have bitterly disputed Norwood’s (and Rookwood’s) actions, or that this case is now before us on appeal. Unfortunately for the owners, the current status of the law permits this kind appropriation. We affirm.” The Court continued, “In our system of government, we require judicial deference to be given to a city council’s decisions.”

“But we also require legislatures and city councils to adhere to the Constitution and the limits it rightly places on government action in order to protect individual rights from gross abuses like these,” said Chip Mellor, president of the Institute for Justice. “Courts have a critical role to play in defending individual rights against government encroachment. Limiting government power and protecting individual rights are the entire reason we have the Constitution that courts are sworn to interpret and defend. Courts must stop being rubber stamps for city councils and legislatures—giving them unquestioning deference. The courts must put teeth back into the law. What the Court reaffirms to developers and city governments with rulings like this one issued today is, ‘Anything goes.’ This has to stop.”

Today’s decision exemplifies what Mellor wrote in the current issue of American Lawyer magazine, “Without realizing it, liberals and conservatives are working from opposite ends of the political spectrum, under opposing rationales, to reach the same end: expanding government power. As a result of the political push and pull between those advocating judicial activism and those favoring judicial restraint, two fundamental American rights—the right to earn an honest living and the right to own private property—have been stripped of vital constitutional protection, leaving entrepreneurs and small property owners especially vulnerable to backroom deals and majoritarian whims.”