Well, the Ohio Supreme Court just wrapped up the oral arguments for Norwood v. Horney, the first case to grapple with eminent domain since Kelo. Dana Berliner did an excellent job for the property owners and the Institute for Justice–she consistently brought home the point that the so-called standards for determiing blight to justify takings are really no standards at all. “As you drive home today,” Dana asked the justices in her last comments of the day, “I ask you to look at the homes and neighborhoods you drive by and ask yourself which ones would not fall under the broad standards used by Norwood to condemn homes and businesses for economic development.” Guess what? Almost all of them except the newest and most comprehensively planned would. The city’s attorney, Tim Burke and the developer’s attorney, Lawrence Ellemen, both very experienced Ohio lawyers, relentlessly pressed the Court to uphold takings for economic development purposes. When Chief Justice Thomas Moyer asked if it matters who initiates a development plan, the city or a private developer, Ellemen boldy and clearly said NO. “I don’t think it does,” he said. “The question is whether this is in the public welfare. That’s a decision that the public [city of Norwood] did make.” So there you have it. Whatever the city wants, as long as it is set out in the local code, can be a legitimate “public purpose” and justify taking your property. Fortunately, several Ohio justices didn’t seem to buy that line of reasoning, at least not completely. We’ll only know for sure when the court rules sometime this spring.
Samuel R. Staley, Ph.D. is a senior research fellow at Reason Foundation and managing director of the DeVoe L. Moore Center at Florida State University in Tallahassee where he teaches graduate and undergraduate courses in urban planning, regulation, and urban economics. Prior to joining Florida State, Staley was director of urban growth and land-use policy for Reason Foundation where he helped establish its urban policy program in 1997.