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Sunday, April 18, 2004

'Takings' can be an appropriate way to stop decline



As discussed in a recent Enquirer story ("Norwood owners begin court battle to keep property," April 12), the city of Norwood has sought to use its eminent domain powers to take the land of at least five unwilling property owners for the proposed Rookwood Exchange. The property owners have filed a lawsuit to stop the process on the grounds that the city isn't taking the land for the public good, but merely to serve private development interests.

AN 'EMINENT' DEBATE
'Takings' can be an appropriate way to stop decline
Eminent domain a tool of last resort
Changing standards shape field of eminent domain
'Holdouts' holding neighbors hostage
Why isn't my business good for Norwood?

In some cases, government should use eminent domain to force redevelopment of blighted land because new private development can serve the public good by creating jobs and expanding the public tax base. Sometimes using eminent domain is the only way for a city to stop economic decline and build a brighter future.

The United States and Ohio constitutions allow government to take private land for "public use" even if the property owner does not want to sell his land. The Ohio Constitution also declares that government may use its eminent domain powers to serve the "public welfare." Where eminent domain is appropriate, courts decide what is fair compensation.

Today, there is not much controversy if government uses eminent domain to acquire land for a public building or road, but there often is controversy if some of the land is ultimately resold to a private developer to redevelop it. The city claims that the area in dispute is "blighted," but the property owners disagree. The city also suggests that the Rookwood Exchange would serve the public welfare by providing more jobs and adding to the city's depleted tax base. The courts will decide whether the area is blighted; I take no position on who is right about that issue.

If the courts decide that the area is blighted, there is ample precedent in the Ohio courts since the Ohio Supreme Court's 1953 Bruestle decision that a city may use its eminent domain powers to take blighted land and redevelop it for urban renewal even if a private developer incidently benefits. Courts have struggled in some cases to decide where is the proper line between government appropriately using eminent domain for the public good or inappropriately using that power to help private businesses to acquire land from property owners unwilling to sell. In many cases, a city cannot make a redevelopment plan work without the assistance of private developers. Courts usually allow eminent domain to include private redevelopment if the government can explain how eminent domain will serve important public goals and not merely the private developer's interests.

Government should not abuse its eminent domain powers simply because it is easier or cheaper for a private developer to obtain land through a city using eminent domain powers. On the other hand, it is often impossible for a city to redevelop land for urban renewal without using eminent domain powers because a few property owners "hold out" for more money or because they do not want to move. Although a harsh procedure, government can and should have the ability to force a property owner to give up his land for fair compensation to serve the public welfare. Properly done, cities may use eminent domain to redevelop blighted areas into vibrant and prosperous communities.

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Bradford Mank is the James B. Helmer Jr. professor of law at the University of Cincinnati. His opinions are his own, not the university's.

An 'eminent' debate

This week's trial over Norwood's proposed Rookwood Exchange highlights a property-rights issue that has raged throughout our area, from Lebanon to Newport to Evendale to Boone County.




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