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Published: Monday, 7/31/2006

Populism on parade

By ruling in favor of three Cincinnati property owners who refused to be bought out for an upscale $125 million development, a politically aware Ohio Supreme Court has emerged in the forefront of a national backlash against the concept of eminent domain.

Fortunately, the court's unanimous decision keeps eminent domain alive in Ohio as an important tool of last resort for aging cities to use in revitalization efforts, as Toledo did in taking property for construction of the Jeep North auto plant in 1998.

Despite the populist appeal inherent in the decision, we continue to believe that eminent domain is fair and proper if used sparingly and only when owners of property are justly compensated, as specified in the U.S. Constitution.

Ruling in the case of a development in Norwood, an enclave of 22,000 surrounded by the city of Cincinnati, the court issued an unmistakable retort to a 2005 U.S. Supreme Court ruling that upheld government power to seize property solely for private economic development purposes. In that 5-4 decision, the nation's highest court left states the leeway to set limits, and the Ohio court responded by summarily reversing a half-century of state law.

Halting use of eminent domain has become a cause celebre for conservatives, especially in the year since the U.S. Supreme Court decision in its now-famous case, Kelo vs. New London, out of Connecticut. That ruling raised protests from property rights advocates, whose howls changed to cheers after Wednesday's ruling in Ohio.

"A smashing victory for property owners, and for common sense," was the verdict from the conservative Weekly Standard. Ken Blackwell, Republican candidate for governor, quickly praised the decision.

Ironically, the Republican-dominated state court - six GOP justices and one lone Democrat - has weakened what once was an article of faith among champions of the exercise of government power to aid private enterprise.

In the Norwood case, the developer was able to buy 66 of 69 parcels of property they sought in an older neighborhood to install a mix of offices, condominiums, and shops like Crate and Barrel. The development was expected to generate $2 million a year in tax revenue.

Owners of a duplex and two homes resisted the buyout and filed a lawsuit, even though the compensation they were offered was generous - three times the appraised value of their properties.

Norwood's mistake appears to have been to declare the ordinary middle-class neighborhood a "deteriorating" area rather than the more severe term "blighted" that was used to justify eminent domain in the Jeep case.

The court held the weaker standard to be unconstitutionally vague, and mandated, not unreasonably, that future attempts at eminent domain undergo "heightened scrutiny."

Still, the decision was striking for its populist tone and thinly disguised slap at the specter of greedy, heartless developers.

Justice Maureen O'Connor, who wrote the majority decision, spared little emotion: "For the individual property owner, the [eminent domain] appropriation is not simply the seizure of a house. It is the taking of a home - the place where ancestors toiled, where families were raised, where memories were made."

It isn't the first time that the law and popular sentiment have converged in a just court decision, although we can't help but believe the court's big-business backers are anything but keenly disappointed.



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