11 January 2006

Kelo, Norwood, And Ohio Issue #1

I'm sure you all remember the Kelo decision last year regarding eminent domain. In the event that you don't, I've got posts about it. Regardless, Kelo has come to Ohio. Michelle Malkin points to this AP story:

COLUMBUS, Ohio -- Joy and Carl Gamble say they just wanted to retire peacefully in the dream home where they've lived for more than 35 years, but the Cincinnati suburb of Norwood had other plans for their property.

Using its power of eminent domain, the city planned to take the neighborhood, which it considers to be deteriorating, and allow a $125 million development of offices and shops to rise in its place.

The two sides took their argument to the state Supreme court on Wednesday in 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.

As I understand it, the situation here is much the same as in New London (the city involved in the Kelo case): a private developer wants a certain piece of land to develop commercially, but the current private owners don't wish to sell and leave the land. So, the developer asked the city of Norwood to take the land by eminent domain and sell it to them. Per Kelo, increased tax revenues represent the putative 'public benefit' through which the city of Norwood could validly apply eminent domain.

Along with various others, I find it stupefying (and mildly terrifying) that local governments have been given a big SCOTUS thumbs-up to the ability to arbitrarily take property from a private entity and hand it over to another private entity. As I've written before, that capability has a strong whiff of socialism about it, and I'm not at all keen on that idea. I think that transactions like those disputed in Kelo and the various Norwood cases should be handled in an entirely capitalistic fashion: if the company wants the land, then they should have to buy it from the current owners at a price named by the owners. If the developer isn't willing to pay that or the current owners aren't willing to sell, too bad. If the developer wants land that the current owner is really attached to, then they need to factor the (possibly exorbitant) cost of getting that land into their initial cost estimates of the proposed project involving that land. Simple as that.

The previous point aside, the thing that really worries me is this: in the most recent November elections, Ohio voters passed Issue #1, which was an amendment to the Ohio Constitution geared towards spurring industrial, commercial, and research development in Ohio. Now, I'll grant that on the surface this really is a pretty good thing... I mean, developing those things is generally a smart plan. Most of the complaints I heard about Issue #1 centered around the proposed source of funding for this development: the text in sections three through five allows for bonds to be issued to pay for it, which basically means development now, debt later. Definitely a valid concern. However, in a vein more germane to this post, sections two and six speak to issues related to eminent domain (emphasis mine):

This proposed amendment would:


2. Declare that local government public infrastructure, and financial assistance for research and development and development of sites and facilities in Ohio for and in support of industry, commerce and distribution (all referred to together as “development purposes”) are public purposes.


6. Authorize the General Assembly to pass laws providing for its implementation, including laws providing procedures for issuing obligations, ensuring the accountability of all state funding provided for development purposes, restricting or limiting the taking by eminent domain of private property for disposition to private sector entities for research and development and the development of sites and facilities, and for the implementation of the research and development purposes to benefit people and businesses otherwise qualified for the receipt of funding in all areas of Ohio, including economically disadvantaged business and individuals in all areas of the state, including by the use Ohio products, materials, services and labor to the extent practicable.

So. The wording in section two is somewhat vague, but it could either mean that development for commercial, industrial, or research purposes is a 'public purpose,' or that funding for such development is a 'public purpose.' In either case, though, it's readily arguable that seizing, for examble, part of East Cleveland by eminent domain and handing it over to, say, Case Western Reserve University or University Hospitals to build, say, a new cancer research center would be perfectly acceptable because, look! It's RESEARCH!! That's a public purpose! Wheee!!!

"But wait!" you say. "Didn't section six restrict such takings?" Nope! Because section six doesn't actually restrict takings by eminent domain, it just gives the Ohio General Assembly the power to make law restricting (or not) the applicability of eminent domain in these sorts of situations. It provides no real protection to Ohio property owners.

So. Private ownership of property in Ohio is protected by the whims of officials at both the local and state level of government. Dunno about you, but I feel safer already.

1 comment:

Anonymous said...

Found my way here from your link on the Scalzi blog.

Just a point of order. You stated that "increased taxes" were the public purpose in Kelo. That is the issue as it was framed by the dissent. The issue as it was framed by the majority was whether the city's completion of a state mandated large scale economic recovery plan was a "public use."

The result in the case seems to come out differently depending which framing you accept. Personally, I think the majority had the better end of that issue. What could be a better public use than the fulfillment of a legal obligation imposed by the sovereign of the governmental entity using the eminent domain?