Gamble Succeeds as Ohio Supreme Court Unanimously Holds Part of Ohio's Eminent Domain Statute Unconstitutional

Carl and Joy Gamble finally succeeded in stopping the City of Norwood from bulldozing their home to pave the way for a $125 million shopping and office complex, as they and two other homeowners prevailed in their constitutional challenge to a municipality's use of eminent domain to aid a private developer.

In Norwood v. Horney, 2006-Ohio-3799, decided yesterday, the Ohio Supreme Court unanimously reversed the Hamilton County Court of Appeals, 161 Ohio App.3d 316, 2005-Ohio-2448, and held that:

1.   The taking of private property under the eminent domain powers of local government is constitutional pursuant to Article I, section 19, of the Ohio Constitution so long as the property is taken for "public use," but the mere fact that the appropriation would provide an economic benefit to the municipal government and the community does not, standing alone, satisfy the constitutional requirement or justify the exercise of eminent domain;

2.    Applying heightened scrutiny to review statutes or ordinances regulating the use of a local government's eminent domain powers, the use of the term "deteriorating area" in the City of Norwood's ordinance as the standard for when private property may be appropriated through eminent domain was unconstitutional on two grounds:  (i) it is overly vague and thus void under the "void-for-vagueness" doctrine, and (ii) it inherently relies on speculation about the future condition of the property to be taken rather than its condition at the time of the appropriation;  and

3.    A provision in Ohio's eminent domain statute, R.C. 163.19, prohibiting courts from enjoining the appropriation of private property after the local government has deposited compensation for the property with the court is unconstitutional as violative of the separation-of-powers doctrine.

The Ohio Supreme Court thus chartered the opposite course from that taken by the United States Supreme Court last year in its controversial decision in Kelo v. New London, 125 S. Ct. 2655 (2005).

The Cincinnati Enquirer reports that yesterday's decision "comes days before a task force is scheduled to recommend sweeping changes in eminent domain law to the Ohio General Assembly."  Laws limiting the use of eminent domain have been enacted in 26 states since the Kelo decision a year ago, and constitutional amendments to restrict eminent domain are on the ballots this fall in six states -- Florida, Georgia, Louisiana, Michigan, New Hampshire and South Carolina.