Tuesday, June 15, 2004

Norwood can seize properties

Judge OKs eminent domain but criticizes city's method

By Sharon Coolidge and Steve Kemme
The Cincinnati Enquirer

After two years of fighting to stay in their Norwood neighborhood, five home and business owners must move, a Hamilton County Common Pleas Court judge ruled Monday.

Judge Beth Myers said the city of Norwood could take their homes and businesses through eminent domain, paving the way for the city to transfer the property to Anderson Real Estate and Miller-Valentine Group.

The developers want to expand Rookwood Commons and build Rookwood Exchange, a $125 million complex of offices, shops, living units and restaurants.

"Granted, the developer had great control over much of the process," Myers wrote in the 38-page decision. "Nonetheless, the city at all times retained its rights and power of eminent domain. While the court does have concerns about the amount of control given to the developer, it is not for this court to substitute its judgment for Norwood in its dealings with third parties."

Although she sides with the city, Myers chastised the city, saying it abused its discretion in designating the property blighted.

The property might be deteriorating, the judge said, but it does not fit the city's definition of blighted as outlined in city laws.

An attorney with the Washington D.C.-based Institute for Justice, an advocacy group that represented property owners in the lawsuit, said he would appeal Myers' decision.

But that appeal won't come until juries in Hamilton County Common Pleas Court determine values for the properties.

The case dates to 2002, when Anderson Real Estate and Miller-Valentine Group proposed the new development, which would sit on a triangular piece of property bounded by Interstate 71 and Edmondson and Edwards roads. The development required demolishing 71 properties.

The idea was discussed in city meetings and a series of town meetings in which many property owners in the area said they would be willing to sell to the developer. They were tired of the noise and lights from the interstate and development encroaching on their neighborhood.

The developers suggested using eminent domain as a way to take the property, but city officials insisted that they first try to obtain the property privately.

Sixty-six owners agreed to sell for a minimum of 25 percent above fair market value, but five owners wanted to stay: Joy and Carl Gamble, who own a home on Atlantic Avenue; the owners of Wilker Design on Edwards Road; and the owners of Kumon Math and Reading Center and Hyde Park Holistic Center, both on Edmondson Road.

Norwood city laws permit the use of eminent domain for urban renewal when an area is blighted or in danger of becoming blighted.

City council commissioned a study of the neighborhood, later using that study as a basis to declare the property blighted and deteriorating.

Using that study, City Council voted in September 2003 to take the property through eminent domain. The five property owners took their case to court. "We're pleased that the judge found what everyone in Cincinnati knew - the area was not blighted. It was ridiculous for the city to claim that it was," said Scott Bullock, senior attorney for the Institute for Justice. "We are disappointed that the judge still upheld the use of eminent domain under this very loose and very vague standard of deteriorating."

Bullock plans to challenge the ruling with the argument that eminent domain cannot be used on land designed as "deteriorating."

Richard Briffault, a professor at Columbia Law School in New York who specializes in property and local government law, said he wasn't surprised that the judge ruled in favor of the city.

For the past 20 years, there has been a recognition that the public can benefit from changing private property from one private use to another, he said.

"Judges are reluctant to second-guess states and cities," Briffault said. The courts are reluctant because the people who made the decision are the elected officials, he said.

Norwood Mayor Tom Williams said he was pleased with the ruling, but didn't feel like celebrating because he and other city officials never wanted to use eminent domain.

"It was a last resort," he said.

The Rookwood Exchange project is important for the financially strapped city, Williams said. The project could generate up to $2.72 million in tax money for the city. Without the Rookwood project, the proposed site would have been developed in a piecemeal fashion, leaving a jumble of businesses and residences, he said.

Bill Pierani, who lives on Edwards Road, agreed to sell from the beginning.

"I know there will be appeals, but this is something the city needs," Pierani said. "The city will prevail in the end."

But, the property owners fighting the city's use of eminent domain are still holding out hope.

"I'm disappointed but also optimistic," said Nick Motz, who owns Wilker Design, along with his wife, Mary Beth Wilker. "I think we have a great outlook for appeal."

The ruling also did not shake the resolve of the Gambles, who are fighting to stay in the house they have lived in for 35 years.

"We're not going anywhere," Joy Gamble said.


E-mail scoolidge@enquirer.com and skemme@enquirer.com

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