- The Washington Times - Thursday, July 27, 2006

COLUMBUS, Ohio (AP) — The Ohio Supreme Court ruled unanimously yesterday that economic development isn’t a sufficient reason under the state constitution to justify taking homes, putting a halt to a $125 million project of offices, shops and restaurants in a Cincinnati suburb that officials said would create jobs and add tax revenue.

The case was the first challenge of property rights laws to reach a state high court since the U.S. Supreme Court last summer allowed municipalities to seize homes for use by a private developer.

“For the individual property owner, the appropriation is not simply the seizure of a house,” Justice Maureen O’Connor wrote in a case that pitted the city of Norwood against two couples trying to save their homes. “It is the taking of a home — the place where ancestors toiled, where families were raised, where memories were made.”

Property rights advocates, business groups and backers of city planning were watching the Ohio case because it could set a precedent. The ruling comes a year after the U.S. Supreme Court ruled 5-4 in a case from New London, Conn., that cities can take land for shopping malls or other private development.

Norwood wanted to use its power of eminent domain to seize properties holding out against private development in an area considered to be deteriorating.

In the ruling, Justice O’Connor said cities may consider economic benefits, but courts deciding such cases in the future must “apply heightened scrutiny” to assure private citizens’ property rights.

Targeting property because it is in a deteriorating area also is unconstitutional because the term is too vague and requires speculation, the court found.

Justice O’Connor wrote that the court attempted in its decision to balance “two competing interests of great import in American democracy: the individual’s rights in the possession and security of property, and the sovereign’s power to take private property for the benefit of the community.”

Dana Berliner, an attorney for the Arlington, Va.-based Institute for Justice that represented property owners in the case, said the decision will have ramifications in high courts and legislatures across the country.

“This case is really part of a trend throughout the country of states responding to and rejecting the U.S. Supreme Court’s Kelo decision last year,” she said. “There are now 28 states that have taken legislative steps to protect owners more after that decision, and this case is the next movement in that trend, and I believe now not only legislatures but other courts are going to begin rejecting that terrible decision.”

Norwood Mayor Tom Williams defended the plan and said he still thinks the project was lawful.

“I believed that we did the right thing then; I believe we did the right thing now,” he said.

Tim Burke, a lawyer hired by Norwood, called the decision a significant disappointment and said it will halt progress on the planned development. He said the city likely will not appeal.

“Norwood, every step of the way, followed the law as it existed,” Mr. Burke said.

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