Land Use

Eminent Domain Abuse Protection in Ohio

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The Buckeye State is one of the major malefactors in the ongoing saga of eminent domain abuse.

After the U.S. Supreme Court's odious Kelo decision gave governments the greenlight on basically all sorts of development programs and after the Ohio state Supreme Court ruled in the opposite direction last summer, the state legislature is pushing ahead on reforming the law. The Cincinnati Enquirer weighs in on whether the House or Senate bill deserves to prevail:

The Senate bill sponsored by Sen. Tim Grendell, R-Chesterland, 90 percent of a group of properties designated for eminent domain must be deemed "blighted" for them to be taken; in the House version, only 50 percent must be blighted.

The House, whose bill follows more closely the recommendations of last year's state task force on eminent domain, also needs to consider the Senate's companion measure, which would put a constitutional amendment before voters this fall to prevent cities from ignoring the reforms by claiming home-rule status.

The Senate's approach, which offers greater protection for private property owners in its public meeting and notice requirements, compensation and other features, deserves to prevail….

Governments should retain the power to take parcels of private property for legitimate reasons—to build roads, bridges, schools and other public projects, and to effect urban renewal in areas that are clearly decayed. But they cross the line when, as in the case of Norwood's proposed Rookwood Exchange complex, they act essentially as agents for private developers, taking still-viable neighborhoods for private projects with the aim of boosting their tax revenues.

More here.

Will the Ohio reform be a real one or one of the phony ones detailed recently at Reason Online by Ilya Somin? We'll find out, one way or another.

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  1. There is also a bill for an eminent domain constitutional amendment traveling through the NC legislature. It passed in the House by a wide margin and is now in the Senate. If it passes it will probably be on the ballot this fall.

    http://www.ncga.state.nc.us/gascripts/BillLookUp/BillLookUp.pl?Session=2007&BillID=H878

    Of course it has the required exception for “blighted” properties, so I don’t know how strong it is. I’m not a lawyer.

  2. The problem with both bills is that they allow for the use of eminent domain to fight “blight”, which is a subjective enough concept that it applies to just about all properties. Who decides if a property is blighted? The same government that wants to take the property.

    Even if an objective standard for “blight” could be promulgated, it’s still brutally unfair to the owners of urban properties because it allows snobbery and temporary fashion to override the right of ownership. The areas of Boston and New York that were declared “blighted” and razed 40 years ago, had they been left standing, would be made up of million-dollar properties now. Georgetown, Boston’s South End, and large sections of Manhattan that were once considered “blighted” turned into upscale areas after comparatively minor beautification. Who knows what properties the state will seize today that would have been desirable in the future?

  3. Of course it has the required exception for “blighted” properties, so I don’t know how strong it is.

    In other words, if your income is below a certain level, forget about any protection. Poor people must only be allowed to live in designated “affordable” housing, I guess.

  4. Sorry, Nick, but the Supreme Court decision that libertarians love to trash was eminently sensible. As “Nino” Scalia, one of my all-time least favorite justices pointed out, deciding the other way would have meant that the federal court system would have ended up deciding every major eminent domain case.

    Decisions regarding government “takings” are made by elected officials, who are, you know, ELECTED. Yes, elected officials make bad, even corrupt, decisions all the time (frequently because their constituents want them to), but they can be voted out. In fact, the wave of legislation that followed the Court’s ruling is a nice example of democracy in action.

    Why do so many liberals, conservatives, and even libertarians, want all the major issues of the country to be resolved by five geriatric cases pumped up on prescription drugs and ego?

  5. Alan, all the court had to do was rule on a reasonable test for what constitutes a “public purpose”.

    Roads and bridges and structures owned by the state are obvious public purposes and would inspire very little litigation – or, at least, no more litigation than will be the case even with the Kelo decision. The federal courts would end up adjudicating the marginal cases – which they will still end up doing.

    If the takings power was meant to be infinitely elastic, the text of the Amendment makes absolutely no sense.

  6. Fluffy gets at the heart of the issue: “Who decides if a property is blighted? The same government that wants to take the property.”

    The definition of blight needs to be tightened up, and there needs to be a step where the interested government agency has to convince some neutral party that the targetted area meets the standard.

    We make private developers go before boards all the time to demonstrate that their project meets the standards of the local subdivision and zoning regulations. Why not make the government do the same thing?

    Imagine your local Redevelopment Authority having to sweat it out in front of a National Planning Board. The possibilities are endless!

  7. What’s eminent doman? title…

  8. “Why do so many liberals, conservatives, and even libertarians, want all the major issues of the country to be resolved by five geriatric cases pumped up on prescription drugs and ego?”

    In the case of people like me, what we want the geriatrics to do is not merely displace the power to decide, but to restrict the ability of government in total to encroach further upon what should be personal decisions; in short, to compel those elected officials to knock this shit off.

  9. “Imagine your local Redevelopment Authority having to sweat it out in front of a National Planning Board.”

    National Planning Board…. good grief!

  10. what we want the geriatrics to do is not merely displace the power to decide, but to restrict the ability of government in total to encroach further upon what should be personal decisions

    If only they had some sort of authoritative document that limited the power of the government to do that.

    Blight = “We want your property”

  11. … National Planning Board…

    joe is BAITIN!

  12. From the NC Bill:

    “This paragraph does not apply to the taking of blighted properties as defined by general law, nor to takings for access by the owner to property. As used in this paragraph, blight includes only the physical condition of the property taken.”

    I wonder if there is a general statute that defines “blighted”? I suspect that there is not, because all it says is “as defined by general law”, instead of referencing a specific GS, which they usually do. In other words, blight means “whatever the hell we need it to mean to take your property”.

  13. joe,

    You know how I want to institute [dramatic gong] the Censor? Well, not wanting to be the only person obsessed with creating a new national office (in my case, of course, a branch), I give you. . .

    The Blighter.

    Obviously, this won’t be one guy. Rather, it will be a crack, independent commission of Blighters who roam the nation and will have the sole authority to declare properties blighted or unblighted.

  14. um… Chuckle – that was me.

    Sorry joe. I muscled in on your territory…

    ProGLib – the operative, attainted word being “crack” (grin)

  15. “Blightocrat” has rather a nice ring to it; they should have an “O-Blighterator” ray which will cause paint to fade and peel, windows to crack, and doors to dangle crazily from a single hinge.

  16. Apologies VM.

    I saw ‘joe’ with the ‘joepboyle’ email address talking about a “National Planning Board” and just assumed it was actually him typing with one hand.

    Silly me.

  17. Pro Libertate,

    I believe that there are already a large number of public officials with the title “Blighter.”

    At least, I’ve heard them referred to that way.

  18. VM-

    The custom is that when you post under another name as a joke you either post as “not RLY joe” or “fake joe” or at least use an email address like “fake@not.rly.joe.com”.

    We don’t want to do unto joe as we did unto Dan T.

  19. Doktor T: tweet. Calling a foul on you.

    It was I who was batin. Not typin as joe.

    So you see, Rick Santorum’s dog, not my style.

  20. Good, joe, I feared that I would have to explain the double entendre to the general public.

    To address your point, the title that I propose–“Blighter”–is, you will note, capitalized. I’m envisioning guys in red robes rushing from property to property in some sort of souped up urban assault vehicle.

  21. The definition of blight needs to be tightened up

    I used to buy into the whole “blight” thing until I gave it a little more thought. What is “blight” really, other than just an arbitrarily defined concentration of people who can’t afford to fix up their property to some arbitrary standard? And what is combating blight, other than addressing a symptom (poor people) without regard to cause? We already have mechanisms in place to prevent public harm caused by individual buildings. Therefore, “blight” is really just a subjective judgement levelled on an icky neighborhood that’s best avoided.

    A better way to get rid of blight–if you’re the type that even sees it as a problem–is to give poor people the means to improve their own property. Lower taxes would be a good start.

  22. OK, I misunderstood. My bad.

  23. nah – my bad – wasn’t clear. (more details under separate cover to joe and you)

    joe = typin
    moose = batin

    joe batin
    moose joe-in’

    Proc Genmod (infile ‘…’);

  24. See, joe, in this instance, thoreau is a self-designated blighter.

    From The Concise Oxford Dictionary of English Etymology:

    blighter n.
    contemptible fellow. XIX. f. blighted euphem. substitute for blasted (see BLAST) as an epithet of reprobation. . . .

    However, he is not a Blighter, lacking the skill sets for knowing blight when he sees it. You, on the other hand, may have a shot at being a Blighter at some point in your career. I’m blight-illiterate, myself.

  25. rhwuyn,

    That certainly wouldn’t fit my definition of blight. Blight is about abandonment and vacancy. The physical deterioration you’re describing can result from blight, but also from a lot of other things, such as low-income owners not having access to capital.

    When I talk about “tightening up the definition,” that’s the sort of thing I mean.

    My model blighted area is a district full of abandoned warehouses, some of which have contamination problems. A neighborhood full of homes owned by poor people, or even apartment houses owned by slumlords who take the money and run, without reinvesting in their properties, are different sorts of problems, distinct from actual blight.

  26. Of course, the head of the Blighters will be the Blighter Czar.

    Don’t turn around, uh-oh.
    Der Blighter Czar’s in town, uh-oh.
    You’re in his eye,
    And you’ll know why.
    The more you build,
    The faster you will die.

    ?

  27. Even though I throw up in my mouth every time I type this, I still agree with joe about blight.

    We should have an objective standard surrounding it. OBJECTIVE. As in “verifiable criteria that can be measured repeatably.” Then we can say “this state or county or city defines 35% of residences as blighted” and you know not to live there if you don’t want to get screwed. Most jurisdictions would have something more reasonable. As it is, any ol’ po’ folk can get screwed any ol’ where whenever their governmental overlords want to.

    Now I know a lot of you “purer” libertarians than I will say “blight shouldn’t be allowed as a taking reason at all.” And while I agree that there’s an argument to be made for that, it requires multiple jurisdictions to re-write their laws. Ain’t gonna happen. Plus, as a practical matter, you do need some mechanism to allow a few takings in a few cases. The problem is that any limitations we had on the word “few” have been defined by the Supreme court as “any damn time those in power want to”.

  28. I’m with the “blight isn’t reason enough to steal someone’s property”, but… if we’re gonna’ do it anyway, then there should be some “disincentive” to the state to prevent them from declaring property blighted in the first place. Like, if the state declares a property blighted, it must refund the last x years’ worth of property tax to the property owner. If the state thinks the property is so “blighted” that it should be seized, then obviously it should have been valued at a very low tax rate. Or some such… given time I suspect that we could come up with something that reduces the desirability of the state using the “blighted” defense when seizing land. “Without just compensation…” not withstanding.

    CB

  29. One thing we could do is recognize that “just compensation” is not merely market value, but is market value plus, because the owner is being forced to sell.

    They should be paid for their property, and be paid for being forced to sell it against their will.

  30. forced to sell it against their will

    ransom: exchange or buy back for money; under threat

  31. Roger that, RC Dean. My only “personal” experience with “eminent domain” was second hand. My father-in-law owned (and had owned for 30 years) a little house in Gainesville, Georgia that he rented out when they moved to nicer “digs”. Gainesville wanted to cut a road through the neighborhood, and (rightly) used the power of eminent domain to seize the land. All’s well and good until you get to the “Just compensation” part. The city offered him $25,000 for the house/land. He complained, appealed and lost. His appeal was based on the fact that the most recent city-performed property valuation for tax purposes listed the value of the house at $34,500 for tax puposes. To me, that should have been the FLOOR of the city’s offer to purchase. Anyway. What can ya’ do?

    CB

  32. Blight is about abandonment and vacancy.

    Clearly, cities across the country disagree; because in all the cases we hear about, the property is not abandoned or vacant.

  33. We are not aesthetically pleased.

  34. I wonder if there is a general statute that defines “blighted”? I suspect that there is not, because all it says is “as defined by general law”, instead of referencing a specific GS, which they usually do. In other words, blight means “whatever the hell we need it to mean to take your property”.

    There seem to be a lot of games played like that, wherein they first take a vague term and pretend it has a specific meaning, then take that specific meaning and expand it into breadth (and vagueness again), and sometimes even repeat. It’s a form of equivocation. They do the same with “abuse” in control of recreational substances.

    Another part of the problem here is only partly that owners are getting market value or something less as “just compensation”. What happens is that some entrepreneur anticipates future market value as an increase, and by using eminent domain can capture all of that increase rather than the existing owner’s getting any. The most egregious case I can think of like that is the guy in Mass. who bought property for development into a drug store, then the person who would’ve been a prospective buyer used eminent domain to hold him up to get it at cost, basically ripping off someone else’s entrepreneurial skill & effort. The court system may be treating existing owners as non-entrepreneurs worthy of getting back only what they put into a property in money, while justifying the taking on the basis of entrepreneurship by the new owner. It’s like they’re saying, there’s potential in this property, but you don’t get to realize it.

  35. RC,

    “just compensation” is the price the owner is willing to sell for voluntarily. Therefore, you dont need to add anything extra on for them being forced to sell, because they arent.

    I realize with that definition I completely killed ED, even for legit purposes. But such is life.

  36. robc,

    No, ED cannot be killed, but it can be dealt with, given the appropriate medication. Bob Dole has four-hour erections on a daily basis.

  37. Bob Dole has four-hour erections on a daily basis.

    And if his wife was anyone other than Elizabeth Dole, I’d feel sorry for her. (Her initials: ED. Coincidence? I think not!)

  38. R C Dean,

    Every city I’ve ever worked in provided relocation compensation, above and beyond fair market value for the property, when they take homes or businesses. And let’s not even get started on the inflated appraisals that governments are willing to accept in order to facilitate the project. Not that there’s anything wrong with that – I agree with the principle you articulated there.

    Rhwuyn,

    “Clearly, cities across the country disagree; because in all the cases we hear about, the property is not abandoned or vacant.” I daresay that the cases Reason chooses to highlight are not precisely representative of the universe of redevelopment takings. And let’s keep in mind, many projects involved “blighted area” rather than “blighted property” classifications. Still, you are correct, and I would certainly like to see states adopt tighter definitions.

    Robert, “It’s like they’re saying, there’s potential in this property, but you don’t get to realize it.” Consider a case of a number of genuinely blighted properties in a neighborhood, which are taken and re-parcelled, and end up being more valuable. Where does this additional value come from? From the city investing tax dollars in acquiring, improving, and reparcelling the properties. Your lot didn’t have this extra value, or this development potential, until the public kicked in the money to buy up your neighbors’ property and improve them. Why should you enjoy the increase in value, rather than they whose investments created that value?

  39. Some cases are like that, some aren’t. I was referring to those that aren’t.

  40. This is just lip-service to angry constituents. San Jose has declared about a third of it’s downtown as “blighted” including large swaths of $700,000 homes in tidy neighborhoods. We are subjects of the power elite, not citizens of a free republic. Get used to it, the politicians, CEOs and labor leaders will take from you whatever they want, whenever they want it.

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