More Than Just a Plot of Land: Ohio's Rejection of Economic Development Takings

• Author: Alisa Hardy
• Position: Capital University Law School, J.D. expected 2010
• Pages: 79-108

MORE THAN JUST A PLOT OF LAND: OHIO’S

REJECTION OF ECONOMIC DEVELOPMENT TAKINGS

ALISA HARDY*

I. INTRODUCTION

In response to th e United States Supreme Court de cision in Kelo v.

City of New London,1 the State of Ohi o dramatically altered it s eminent

domain laws in ju st ov er two years. The Kel o decis ion, which b roadened

the circumstan ces under which the government may take private property,2

engendered much debate and media coverag e.3 In the wake of the

decision, the State of Ohio sprang into action, citing fears t hat the Kelo

decision granted power to government greater than allowed b y the Ohio

Constitution .4 Throug h a court deci sion, Cit y of Norwo od v. Horney,5 and

the passage of comprehensive eminent domain refo rm,6 Ohio h as swung

the pendulum from an increasingly liberal interpretation of when property

may be taken to a restriction of th is power in the st ate.

This paper focu ses on th e development of eminent domain law i n Ohio

and propo ses that it radically changed in direct response to the Kel o

decision. These changes discussed later in the paper include increased

judicial scruti ny of takings, ban ning takings p remised on economic

development, and adding more procedure and cost to the con demnation

Copyright © 2009, Alisa Ha rdy.

* Capital Unive rsity Law School, J.D. expected 2010. I am grateful to Professor Susan

Looper-Friedman for her invaluable guidance and insight and to Rody Hardy for his

unwavering support.

1 545 U.S. 469 (2005).

2 Id. at 483–84.

3 Adam Liptak, Case Won on Appeal (to Public), N.Y. TIMES, July 30, 2006, at wk 3

(stating the outcome of the Kelo d ecision provoked a revolt by the state legislatures, and

gave rise to a “tidal wave of o utrage”); see also Jonathan V. Last, The Kelo Backlash,

WKLY. STD., Aug. 21, 2006, at 14.

4 Am. Sub. S.B. 167, 126th Gen. Ass., Reg. Sess. (Ohio 2 005), available at

http://www.legislature.state .oh.us/bills.cfm?ID=126_SB_167 (last v isited September 10,

2009) [hereinafter Senate B ill 167].

5 853 N.E.2d 1115 (Ohio 20 06).

6 Am. Sub. S.B. 7, 127th Gen. Ass., Reg. Sess. (Ohio 2007), available at

http://www.legislature.state .oh.us/bills.cfm?ID=127_SB_7 (last v isited September 10,

2009) [hereinafter Senate B ill 7].

80 CAPITAL UNIV ERSITY LAW REVIEW [38:79

process. The main th rust of the changes to Ohio law was to pro vide more

clarity and cons istency to th e takings pro cess, and pro vide greater

protection to Ohio l and-owners.7

The res t of this section features an explanation of the general concept

of emin ent do main and how the Fifth Amendment limits this power. Part

II will discuss the devel opment of the modern con cept of public use in the

United States Supreme Court, showing how the Court has increasingly

deferred to legislatures in thi s area. Part III will focus on t he development

of eminent domain law in the State of Ohio, showing that the stat e has

largely followed the trend of the United States Su preme Court. Part IV

will review the Kelo decision , and Part V will review t he changes wrought

within the Stat e of Ohio in response t o the Kelo d ecision. Thi s begins with

review of the City of Norwood decision and its change to the interpretation

of the Ohio Constitution. Following will be a review of the legislative

changes to the Ohio Revised Code, ending with a review of p otential

problems that rem ain after the sub stantial changes in Ohio.

A. Introductio n to Eminent Domai n

Eminent domain is the government’s inherent power to take private

property and is an attribute of the government’s sovereignty.8 The Fifth

Amendment of the United States Constitution9 does not grant th is power;

rather, it limits this power.10 This limitation requires that if private

property is taken, i t must be for public use, and t he gov ernment must pay

just compen sation.11 Th e limitation of the Fifth Amendment appl ies to the

states through th e Fourteenth Amen dment.12

The term “public use” “has had an unev en existence” an d can be

defined narro wly or bro adly.13 A n arrow reading construes “public use” to

7 Senate Bill 167, supra note 4, § 4(B); see also City of Norwo od, 853 N.E.2d at 1152

(citing Kelo, 843 A.2d at 581 (Zarella, J., concurring in part and dissent ing in part)).

8 ROGER A. CUNNINGHAM, WI LLIAM B. ST OEBUCK & DALE A. WHI TMAN, THE LAW OF

PROPERTY 506 (2d ed. 1993).

9 U.S. CONST. amend. V (“[N]or shall property be taken for public use, without just

compensation.”).

10 CUNNINGHAM, supra note 8, at 506.

11 Id.

12 Id. (citing Chi., Burlington & Qu incy R.R. Co. v. Chi., 166 U.S. 226, 24 2 (1897)).

13 GEORGE SKOURAS, TAKINGS LAW AND THE SUPREME COURT 44 (19 98).