- The Washington Times - Monday, July 31, 2006

In a welcome respite from a year of bad property-rights news, the Supreme Court of Ohio availed itself of the more reasonable eminent domain option the U.S. Supreme Court declined to endorse in last year’s ruling Kelo v. New London — opening what we hope is a wave of common-sense originating in the states.

In a unanimous opinion, the jurists ruled that the city of Norwood, a suburb of Cincinnati, could not use its powers of eminent domain to seize a neighborhood of modest homes to make way for $125 million worth of offices, condominiums and stores planned by private developers. The city had argued that the neighborhood in question was “blighted” and deteriorating. In reality, it is simply ordinary. Ohio Justice Maureen O’Connor ruled that “the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy” Ohio’s “public use” requirement as written in the state constitution.

This takes advantage of the tribute in last year’s otherwise troubling Supreme Court Kelo opinion to federalism: That states are free to follow their own constitutions on eminent domain. Justice John Paul Stevens explicitly noted in the Kelo opinion that states may choose a different route than his own court. This meant that government can further the alliance between private interests and tax-hungry government — but it can also choose to curtail the relationship if it wishes. Ohio did just that.

The Ohio ruling has significant implications for apparent trends in eminent domain. Today the city of New London is putting the finishing legal touches on a plan in which private developers build condos, a hotel and other amenities where homes once stood against the wishes of some of the homeowners. The axis of private developers and city planners like those behind the New London takings and others should rightly view this as a serious setback.

We hope other states follow Ohio’s lead. If they do, they could roll back what has clearly become an eminent domain overreach. And the old definition of eminent domain — seizing land for things like highways, rails, schools and so forth — will get a significant boost.

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