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Published: Thursday, 1/12/2006

Property seizure by eminent domain receives state Supreme Court review

BY JIM PROVANCE
BLADE COLUMBUS BUREAU
Albert and Barbara Miller of Lakewood, Ohio, join about 50 people in Columbus at a rally for private property rights. Albert and Barbara Miller of Lakewood, Ohio, join about 50 people in Columbus at a rally for private property rights.
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COLUMBUS - The Ohio Supreme Court yesterday weighed into the question of how much protection the state constitution provides private property owners when a city seeks to condemn their homes and obtain the land for shopping centers and condominiums.

The case is the first in the nation to reach a state high court since the U.S. Supreme Court issued its controversial 5-4 ruling in June upholding the right of New London, Conn., to use its power of eminent domain to condemn nonblighted land to pave the way for private development.

That case raised the same legal question of eminent domain that came up when the city of Toledo seized property to make way for the new Jeep factory.

At issue in the latest Ohio Supreme Court case is whether the state Constitution provides greater property-right protection than the U.S. Constitution.

Visiting Ohio Supreme Court Justice James Brogan questions attorney Dana Berliner in the eminent domain case. Visiting Ohio Supreme Court Justice James Brogan questions attorney Dana Berliner in the eminent domain case.
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"I was evicted from my property by the city of Norwood and Rockwood Partners to build a Crate & Barrel and some rental apartments," said Joe Horney, one of five landowners whose properties were condemned when they refused to sell.

"In the great state of Ohio, they throw me to the curb just to build bigger and better development," he said. "That's fundamentally wrong."

The city of about 20,000 people, wholly surrounded by Cincinnati, declared Mr. Horney's neighborhood to be "deteriorating."

Rockwood's attorney, Lawrence R. Elleman, described the neighborhood as "an island, virtually a cloverleaf in the middle of an interstate."

After Rockwood failed to reach purchase agreements with the few holdouts to further its plan for retail shops, condominiums, and apartments, the city approved a study financed by the developer.

That study found the structures to be sound, but determined that the neighborhood was going downhill. It noted that construction of I-71 and an access ramp in the 1960s had cut off a number of middle-class family homes from surrounding neighborhoods, creating dead-end streets and traffic headaches.

Justice Paul Pfeifer noted none of these developments were the homeowners' fault.

"I'm not sure that makes any difference at all," said Timothy Burke, the city's attorney.

Sixty-six property owners reached purchase agreements with Rockwood.

After two lower court rulings in Norwood's favor, Rockwood was in the process of demolishing structures when the Ohio Supreme Court stepped in last February to at least temporarily protect the few properties that are the subject of this lawsuit.

Rockwood has invested $18 million in the project, according to the developer's lawyer, Lawrence Elleman.

"[City council members] have walked the streets," he said. "They've seen the neighborhood change."

"Couldn't the same argument be made for the homeowners?" asked Justice Maureen O'Connor, a question that resulted in a rare outburst of applause in the usually somber courtroom.

About 50 people had rallied in the rain outside the Statehouse to voice support for property rights before the court arguments took place.

Shortly before recessing for the holidays last month, Ohio lawmakers enacted a one-year moratorium on communities using their power of eminent domain solely for economic development purposes.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496



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