NEWPORT — For an upscale shopping center and pricey homes, Newport officials are willing to sacrifice part of Wiedemann Hill, the working-class neighborhood that stands in the way.

        It's the latest example of an increasingly controversial trend. Nationwide, governments are using eminent domain to take private property not just for public roads or parks, but also for privately owned shopping malls, restaurants and hotels.

        Increasingly, some citizens are fighting back.

        “I have a problem with condemning property for private enterprise,” says Lois Joy Sallee-Scheall, who owns a home on Wiedemann Hill. She hasn't decided whether to fight the city in court but objects on principle. “I really believe cities are abusing eminent domain.”

        For centuries, governments have had the right to take private property as long as it's for the public good and owners are fairly compensated. In Greater Cincinnati, for example, eminent domain was used to build the Butler County Regional Highway and the Cincinnati/Northern Kentucky International Airport.

        Now, however, the concept has grown to include a wide range of private development, too.

        No one tracks how often governments use the process to boost business projects. But national experts agree that property owners, encouraged by a growing property-rights movement, are filing more challenges in court.

        Here and there, judges are beginning to agree with them.

        Newport's Wiedemann Hill, one of the most ambitious projects in the Tristate, is an example of what's at stake.

        About 85 homes stand in the way of a $100 million retail and residential development. Most of the property is already under the developer's control, but if holdouts threaten the project, the city stands ready to force sales through court action.

        Government officials argue that such developments benefit the public in many ways: new jobs, more tax revenue, cleanup of deteriorated property.

        But critics say governments are becoming too bold, favoring certain property owners over others and meddling unwisely in the private marketplace.

        In recent years, a number of extreme cases have drawn criticism from the courts.

        In Atlantic City, N.J., a government agency in 1998 tried to take an elderly woman's home and several small businesses so the property could be turned over to Donald Trump's casino. A judge blocked the effort, saying it benefited the casino far more than the public.

        In Lancaster, Calif., the City Council in 2000 tried to condemn a store called 99 Cents Only because its rival, Costco, wanted to expand in the same shopping center. A federal judge blocked what he called the “naked transfer” of property from one private business to another.

        Cincinnati has its own notorious case. In 1998, city officials invoked public good in trying to force a CVS store from its downtown location. The city needed the spot for a Walgreens, which had to be relocated because of an agreement with another developer.

        The city's effort sputtered — the owner of the CVS building promised a long fight — but it became a cause celebre for Cincinnati attorney Robert Manley, who has handled many eminent-domain cases.

        “We've raised a whole generation of bureaucrats who don't know that in Ohio and Kentucky, you can't use eminent domain for economic development; it's not a legal public purpose,” Mr. Manley says.

        “A public purpose is a park, a highway or clearance of a slum. It is not to subsidize a private business.”

        In the suburbs, eminent domain is typically used to help government keep pace with growth. Mason, for instance, is in court to obtain property for the widening of Mason-Montgomery Road.

        By contrast, urban America is struggling to grow at all. So with the blessing of the courts, cities have used their land-buying power to clear out derelict or slum property and replace it with something more productive.

        In Cincinnati, the Paul Brown Stadium, Westin Hotel, Saks Fifth Avenue and Gramercy apartments all were built on land assembled through eminent domain.

        Because property owners may be well-compensated or agreeable to relocation, they often do not challenge the basis for public takings.

        Such challenges are difficult to win anyway, because judges tend to defer to cities, says Gideon Kanner, a professor at Loyola Law School in Santa Monica, Calif..

        But in recent years, government plans have become so “over-reaching” that even the judiciary is balking, Mr. Kanner says.

        Ohio law does not address the use of eminent domain for redevelopment, says Mr. Manley, the Cincinnati attorney. Instead, court cases have established that public good is accomplished by clearing slums, which justifies the use of eminent domain even if private enterprise also benefits.

        Kentucky happens to have one of the best laws in the nation for fighting public takings, Mr. Kanner says. State law clearly establishes the blight conditions necessary for such action.

        In a case hailed by national activists, residents of Highland Heights in 1999 used the law to block condemnation of their homes.

        The city wanted to declare their neighborhood, Gateway West, part of a “redevelopment area” that would be eligible for demolition. At the time, a developer had talked about building a hotel there.

        In court, city officials cited problems in the neighborhood: overdue tax payments, lots with no recorded owner, pavement of insufficient length and width, faulty lot layout, deteriorating property.

        But such conditions exist throughout Highland Heights, including the neighborhoods of some City Council members, the residents argued.

        After touring the community himself, U.S. District Judge William Bertelsman agreed. The state law is intended to bring about better housing in urban areas plagued by high crime and safety hazards, he found. Such was not the case in Highland Heights.

        “Up until a few years ago, you would never see a court looking at a blight designation,” says Dana Berliner, a lawyer with the Institute for Justice, a Washington-based firm that handles important eminent-domain cases for free.

        “This judge actually looked and said, "Hey, this is an ordinary neighborhood.' That was a great thing.”

        Some people consider Newport's Wiedemann Hill an ordinary neighborhood, too, if a bit worn around the edges.

        Overlooking Interstate 471 between 10th Street and Carothers Road, the tiny community lies along narrow, potholed streets. Some residents complain of foundation problems caused by hillside slippage, and the area's sewage sometimes overflows into a nearby creek.

        Neyer Properties Inc., one of the largest real-estate developers in Greater Cincinnati, wants to transform the hill into the Newport Promenade: a combination of shopping and homes in the $300,000 price range with views of the Cincinnati skyline.

        Similar in size and expense to Norwood's Rookwood Commons, the Promenade would go a step further by testing the market for a mix of housing and retail.

        City Manager Phil Ciafardini says the existing neighborhood meets the definition of blight. In addition, Neyer will create a public park and a new road linking the major thoroughfares of 10th and Carothers.

        “We're looking at millions of dollars (Neyer is) spending on infrastructure that the government isn't,” Mr. Ciafardini says.

        Purchasing homes through eminent domain is a last resort, he says. Even so, developers need to know that the option is available.

        “The purpose of eminent domain is for the public good,” Mr. Ciafardini says. In urban areas with little vacant property, he says, “It's really the only tool the city has to develop itself.”

        On Wiedemann Hill, many residents say they are happy to move. A few are holding out for a better offer from Neyer, and some are resigned to moving even though they would rather stay.

        Others wonder whether neglect by the city, which has long eyed the hill for redevelopment, contributed to the poor conditions. And Lois Joy Sallee-Scheall, the most outspoken opponent, says she's insulted by the city's apparent preference for a different type of landowner.

        “What they're telling me is I'm not worth as much as someone who can live in a luxury condo,” says Ms. Sallee-Scheall, who bought the Wiedemann Hill house for her son and does not live there herself.

        John Stevens, a Neyer official, is skeptical of her objections. He says Ms. Sallee-Scheall gave a price of $250,000 when contacted by the company's real estate agent, which indicates her main goal is a financial windfall, he says. The house is appraised at $36,000 for tax purposes.

        But Ms. Sallee-Scheall insists she isn't interested in money. With her price demand, she was trying to send the message that she didn't want to deal with the company, she says.

        Another resident, Margie Knox, says she's satisfied with Neyer's offer and ready to get out. The new shopping will be good for Newport, she says.

        “If they've got the majority of people that want it, the minority that don't want it should go along with it, I think,” Ms. Knox says.

        One who did just that is Mike Hogan of Grand Avenue, who has accepted Neyer's offer on his two homes. His elderly mother lived in one of them for 52 years, he says, and was terribly upset at the prospect of moving. In ill health for years, she died of heart failure four days after the purchase agreement was signed, he says.

        “What they gave you for the houses, you can't refuse, because they're going to get you with eminent domain, anyway,” says Mr. Hogan, who declined to say how much Neyer offered him. “You can't fight city hall.”

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