Strengthening Constitutional Self-Government

No Left Turns

Kelo Comes to Ohio

William Batchelder and Larry Obhof bring two cases to our attention that are before the Ohio Supreme Court. It seems that the City of Norwood has attempted to use its eminent domain power to sell private property to a private developer using some very suspicious "studies" that declare that the property in question is "blighted." Despite language in the Ohio Constitution and previous Ohio Supreme Court precedents that clearly forbid the use of eminent domain for private purposes, several courts have ruled in favor of the city. As Obhof and Batchelder explain:

The Ohio Supreme Court now has the opportunity to make history. It is the first state supreme court to address these issues following Kelo. Many more states will follow, and Ohio’s decision in Norwood will serve as a bellwether for other courts looking to protect property rights.

Discussions - 23 Comments

I read the article. The first thought I had was whether this case might be better argued as a lack of due process concerning property (14th amendment). It would seem that the City Council acted hastily without public hearings and relied on a flawed study. I’m not familar with due process rights concerning property, but it certaintly seems like there was a lack of it in this case.

Takings cases such as these are always difficult because there is no clear bright line between "public use" and "private use." I would appreciate it if the authors of the brief could comment on what distinguishes the two. An airport is as private as a store; people buy a service, flying, (and goods from Airport stores) that only benefits them, and the predominate purpose of the airport is not use by the government, but use by private parties. The same is true for roads as well, although not as great as airports. Private parties use roads and many citizens do not benefit from them.

Furthermore, people who argue for "public use" instead of "pulic purpose" construe property too narrowily. They always argue about real estate. Thankfully the 5th amendment has been interpreted to protect almost ALL property, this includes trade secrets and contract rights. The most famous case concerning this is Dames & Moore v. Regan. The US forbade US companies from trading with Iran (a pretty clear violation of property rights) in order to help free hostages. This was certainly a "public purpose," but whether it was a "use" is doubtful. People who argue for "use" always envision physical uses by the government, such as a school or police station. The only alternative left these people in the Dames & Moore case, is to declare Contract Rights are not property (that is what Rehnquist did to his shame--he was rather free in ignoring what is property), that not allowing companies to get benefits from contracts is not a taking (which is absurd), or to hinder foreign policy and not allow the Federal Government to institute embargos and the like because it is a "public purpose" rather than a "public use." Allowing public purpose gets around all of these problems.

People opposed to eminment domain point to abuses, and there is no doubt there are many. The proper response is not to limit powers merely because they are abused; no one argues that "income" per the 16th amendment is limited because Congress could impose a 100% income tax tomorrow, rather the proper response is to demand action from citizens and virtue from politicans. Anything else serves as a crutch for lack of political virtue.

Finally, the authors state that the Ohio Constitution protects property, which is true. They then assume, for some reason, that property is not protected if someone gets the FAIR MARKET VALUE for the porperty. The money serves as a substitute, so how is property not protected. I will gladly agree that any compensation that is not a full substitute for the condemned property hurts protection of property, but it is absurd to argue that because people are forced to sell, with full compensation, that property rights are being hurt. If these people had a beautiful cottage on some Lake Erie Island I would sympathize, but from my knowledge, Norwalk is not a scenic area of Cincinnatti.

If these people had a beautiful cottage on some Lake Erie Island I would sympathize, but from my knowledge, Norwalk is not a scenic area of Cincinnatti.

So cute cottages owned by rich people in picturesque places are protected but the tacky bungalows of the working class are not. Nice.

WM:

Thanks for bringing up the class issue at the first possible moment. I wonder which political party is known for that, and what sort of people do it?

If you had thought for a moment before charging ahead with populist arguments you would see my statement was entirely consistent with my post. I said that to the extent that compensation could not provide a substitute then a taking would harm property rights. It is much harder to compensate intangible aspects of property, such as view, than compensating for the mere value of a house. It is simply reality that lake front cottages are more apt to have intangible value that cannot be compensated for than tract houses built right after WW2 in an area that is surrounded by two interstates, and a huge factory (Procter and Gamble I believe). There are not as many intangibles for Norwalk homes, therefore it is not as unjust to take it since compensation is possible for a substitute--Norwalk homes are places to reside, but neither the area, nor the view, has anything really special--intangible--about it.

It is strange that you mention intangibles but include in that list only things you like (scenery) and not things that are important to the homeowners (personal attachment to the neighborhood they have lived in for 30 years). If WM is wrong, why do you make such distinctions? Isn’t attachment to their homes an intangible that they are not compensated for?

Steve,

I am a conservative, and even I found your comment about the area they live in to be in poor taste. Where the property sits is NOT the issue - that it is being taken is.

Private property is one of the cornerstones of capitalism and our society. To remove those at the whim of a government looking to make more in taxes is frightening.

The town at issue is NorWOOD, not NorWALK, for what it’s worth... oops, maybe I shouldn’t put it that way!

Ashland Man:

It is true that some neighboorhood locations do offer intangible benefits other than scenary. Poletown in Detroit was an example of this. It was home to a very large community of Polish people who did not want to leave. Clearly there was a cost that was not compensated in making the residents of Poletown leave (their land was condemned for a GM plant). There is no indication that the houses concerned in Norwood are anything special. There is no indication that people forced to leave these houses cannot be fully compensated.

Furthermore, unless you know a great deal about the case, it is speculation to state they have lived in the area for thirty years. Modern American society is not a rooted society. People move around all the time. Since 2000, I have moved five times. I am probably not that unusual. There is no indication that these people have such a physic attachment to this particular spot in the Cincinnatti Metro area that they could not be fairly compensated and find a substitute.

Russ:

You are correct that where the property sits at is not determinative of whether the taking should occur. See my first post. Where the property sits at relates to whether an owner can be justly compensated for its loss. If just compensation were possible it would not hurt "property rights" to take the house because one has not lost any property, rather the form of the property has been converted from real estate into money, and can be reconverted into real estate. There is no loss of property, except for intangible benefits, such as scenary. Can you see the distinction between a government action where one gets the full money value for what is taken, and is able to buy a substitute, and an action where the government prevents use of property for a certain purpose (through zoning or some Environmental Act) and does not compensate the owner for the harm he has suffered? Which action is more unjust? I am continuly surprised that people do not think of government regulation as "taking" (try using your car without a license) yet are up in arms when someone is offered full compensation for property that is taken. Zoning and environmental laws cause much more economic impact than takings, yet no one on this site claims this is not a protection of property. There are many farms fields on the Westside of Columbus that would be worth millions if they could be zoned residential, but they cannot be because environmental laws prevent this. This is a serious impairment of a property right, with serious economic consequences (try several million dollars per farm), yet no one is stating property rights are being destroyed or that this is unconstitutional.

Finally, I see no one has offered any substantive legal analysis of the issue. This does not surprise me. For some reason the right self-destructs on this issue and becomes incoherent. The right is constantly going on about how courts should not practice results oriented jurisprudence, etc. and then when this issue comes up it immediately starts talking about results in complete disregard of the law. The political, not the legal, process is the appropriate way to deal with takings questions, although given my airports and roads example it is pretty clear that any distinction between "private" and "public" will be highly artifical at best.

Stop making up facts Steve. The Gambles have lived at their Norwood home for more than 37 years. Obviously they have a psychic attachment to the home and were not fairly compensated. If your theory were correct they would just take the money and move.

Steve,

You speak like a man who doesn’t have attachment to much of anything (and I don’t say that as an attack, merely as observation). You can’t always quantify the qualities that come from private property. You may see that things like view and scenery are hard to properly compensate, but seem to ignore other aspects that may not be compensatible either. The apple tree in the backyard where the kids carved their initials; the notches in the paneling where the kids measured themselves; the back porch where the family spent their evenings for as long as they can remember. Each house has these places and for people like you that move every year, they may be meaningless. I imagine that they were meaningless to the people who willingly sold their land to the private developers in Norwood. But the people who are suing have reasons for wanting their homes to remain their homes and it is up to the legal system to provide them protection when there is no compelling public interest in their property.

If there were a true public interest in the land, eminent domain would be appropriate. But what we’re talking about here is a private development that will only serve the public by increasing the tax base. If this becomes an acceptable use of eminent domain then there would seem to be little left that wouldn’t qualify as a public use which would make eminent domain laws meaningless as the government can simply take land and "justly compensate" any time it wishes.

And for the record, I’m no big fan of zoning laws either, but we weren’t talking about zoning, so I’m not sure why you are so surprised that no one has brought it up…

Steve:

The distinction between public and private use is not nearly as difficult as you suggest. The fact that not everyone uses the road does not modify the easily demonstrable fact that the road was built for, and is there for, public use. The fact that airports, which are generally run by governmental organizations, nonetheless contract with private carriers to provide services does not change the fact that the airport is there for the public use. The key distinction is that the government is providing a "good" which would be difficult if not impossible for private industry to carry out. (Because of issues such as the need for equitable distribution of costs, and the problem of bilateral monopoly holdouts with regard to building the facilities.)

It seems particularly peculiar that you are so quick to lecture about the need not to limit the power because of abuses, and yet you seem content to rush in to curtail the right because of your inability to make rudimentary distinctions between public and private. Despite your statement that just compensation cures all ills, that is not what the Constitution requires. First, the condition precedent that the taking be for public use must be met; then, the right requires just compensation.


As for your silly view argument, view is easily accounted for in compensation. All one needs to do is look at a building that has lake view apartments on one side and non-lake view on the other to recognize that the market is perfectly capable of valuing such goods. The market does a much poorer job of performing subjective valuation--the kind of intangibles that lend themselves toward the attachments to property. Because of this difficulty, the law generally excludes them from the calculation of "just compensation," but for this reason the condition precedent of public use becomes all the stronger. We recognize that even if we pay what the market requires, you are going to be undercompensated on a subjective level for your home, and therefore we as a society will only do so for purposes which benefit the public as a whole, instead of for purposes that benefit local developers, or Pfizer. This is particularly important, because most people value their homes at something more than fair market value.

The other major problem is that the compensation being offered to the indivuals in this case is not adequate based on rudimentary economic principles. Why did the devopers seek the intervention of the city to take the property of locals in Norwood? Because they wanted to get the property at rock bottom prices. If they negotiate with the landowners, then the laws of supply and demand kick in. The developers need specific land, of which there is a limited supply, and therefore the price necessarily must rise to reflect this reality. But if the developer can get the city to play heavy for them, well, then we can artificially freeze the supply and demand curve at a time before the negotiations, thereby helping out the developer. The developer is simply seeking to make a profit, which is fine, but the property owner is entitled to the increased value of his or her home which is caused by the developers "demand" for a large swath of land. Eliminating the public use requirement means that the surplus from the transaction is reallocated by the government to the developer, rather than to the public. This the Constitution does not permit.

Public Use:

Your airport example is the perfect example of why the public/private distinction simply does not work. You claim that the airport is "public" because it is owned and operated by the government, even though it is leased to private individuals and serves the needs of private customers. Your principles would allow for the Norwood government to condemn the land, build the shopping center, and run it themselves. These cases are indistinguishable, and your principles only encourage greater government control of assets. This is bad.

You try to distinguish the airport example by stating it is a hard good to provide, but the difficulties you point to are no different than any other physical building. You state that because of the nature of land someone can refuse to sell until he gets a huge amount, and this justifies eminent domain for the airport. Wouldn’t this justify eminent domain for any physical structure, such as a shopping mall? Your attempt to distinguish the airport fails, unless you agree that government should be able to condemn land and build shoping malls that it will run.

This gets us to the second reason as to why a distinction between private/public will not work. We can assume governments will always want to do something, whether it is lawful or not, honest or not, and that they will bend the law and honesty in order to do it if they need to. If government ownership of assets is all that is needed in order to make something "public," why couldn’t the government condemn land, build the shopping mall that it will own, and then sell it a year later to the business that wanted the mall built in the first place? The people suffering from an unconstitutional taking in your system would surely have no remedy. No court would make the government tear down the mall and rebuild the houses. If you think government ownership of a mall is constitutionally troublesome, then we can have government condemn to build a school or park, destroy the homes, and then it changes its mind and sells the land to a developer. Your system is a system that leads to lying, at least the present system requires openness.

If this public/private distinction wins in court we can assume local government will become sneakier. This is not good. People are depending on the courts to protect their property when political virtue and moderation will not. If the public/private distinction wins, I expect local politics concerning these matters will be so secretative that citizens will not be able to exert political pressure to stop projects. The end result will be the same (building malls and the like), but there will be almost no chance for the political process to work.

How could the local government become sneakier then it already was in Norwood? They called a regular neighborhood blighted and seized it as a so-called emergency. Then they gave it to a large political donor.

As someone who has become very familiar with Kelo, Norwood, and Ohio’s law on both subjects, I would point out a few things that no one thus far has brought to this conversation.


The decision in Kelo responded to the question of whether the 5th Amendment prevented Kelo-style takes. Although I think that Sandra O’Connor got her dissent right when she stated that after Kelo there would be nothing stopping a local government from taking every motel 6 to turn into a Ritz Carleton or any family farm into a big box superstore, the Court at least admitted that states are permitted to address this situation in their own ways.


Norwood is different from Kelo, and most people who are familiar with both cases would argue that Norwood is actually a bad case to serve as a litmus test post Kelo. In addition, I had the opportunity to watch the oral arguments before the Ohio Supreme Court and, in my opinion, they were not well argued (on either side). The IJ attorney working on behalf of the citizens was fragmented and did not speak well. Fortunately for her, the City’s attorney was rude and derisive toward the Court. He consistently interrupted the justices -- which clearly will not earn him points.


But all this aside, the Court did see that each state could decide for itself. Ohio’s constitutional provision on this matter, Article I, Section 19 is actually much stronger than the 5th Amendment (if I say so myself). It claims that the right to private property is "inviolate" in this state.


State law does allow takings in instances of blight -- there are two definitions of blight in the revised code. But, Ohio is also unique in that it grants certain local governments home rule authority. Ohio, I believe, is one of only a few states (7 or 8) that does this. Thus, if a local government asserts a right to condemnation under a much less protective definition of blight (The Lakewood case is a good example -- The city of Lakewood determined that houses without attached garages were "economically obsolete" and thus could be taken -- even when the homes were ALL well maintained, and no one wanted to sell. In Norwood, it should be noted, there were about 200 plus residents and only a VERY few (less than 5) didn’t want to sell.).


The blight considerations are very recent to law – they mainly sprung out of urban renewal efforts in the late 60s and early 70s. Deteriorating cities could argue that abandoned urban housing that was housing illegal activities – drugs, prostitution, gangs, etc, could be taken and redeveloped. When applied judiciously and compensated fairly, my understanding is that there was not much of a dust-up regarding this activity.


But, as governments and developers alike have gradually expanded their grasp, there has been addition trouble. Some of it is in Ohio law, and some of it is philosophical. I think it should be pointed out that inverse condemnation is the one facet of Ohio law where the burden of proof is on the citizen, not the condemning authority. A citizen who disagrees that his property is “blighted” must not only fight city hall, but he must absorb the cost of experts, etc due to the backwards burden of proof. Even worse, if he wins (which is difficult, because most local definitions of blight and some court decisions say that the court must defer to the determination of the condemning authority. So, if ODOT says they need a road, the court accepts that – you can pretty much only argue costs. On the other hand, if the city council says your property is blighted, your going to court to prove it is not blighted is difficult, as the presumption is that city council is right. As if this were not enough, there is no provision in Ohio for the citizen to recoup court costs. This means that even if he does go to court and successfully argues that his property is worth more than the condemning authority wishes to offer; many times the difference (or more) is eaten up in court costs. Thus, from an economic standpoint, the property owner may be better off not challenging a low determination (although it is also true that juries are generally sympathetic to the property owner and have at times substantially increased the award). This balance was weighted on the side of the condemning authority, but there were some free market-esque checks and balances to ensure that neither side got too greedy.


The problem, post-Kelo is that it entirely removes the free market from the determination. Thus, it is not just that post Kelo we are giving up one of the rights in the bundle of rights known as “property rights,” but that we are taking the free market out of the equation. If you own a small business that “bigboxMart” wants to take to build its newest super center, then the old system was that you could ask for compensation not just for the value of your physical property, but perhaps you could throw some in for the cost of moving your business, or future lost revenue, etc. BigboxMart, post Kelo, has no incentive. He can get a greedy city council to find a crack in the sidewalk outside your building and can pay you whatever rate he can get the value of your property appraised at. As if fighting city hall was not hard enough, you now have to fight both city hall and a cadre of corporate interests. Even if you win, you will likely not make a financial gain (and may lose money).


But, it gets even better. Ohio law only allows compensation at the value of the property at the time of the take – not for future use. So, let’s take that same small business, and make it a residential area or a small farm. The value of my small house and 5 acres zoned residential might be 150 or 200,000 dollars altogether (and that is probably generous in most areas). But, as soon as the property gets a zoning change, the value of the land alone increases – maybe up to 100,000 an acre. So, if your property, valued at 200,000 is taken, a change in zoning is acquired (pretty much a given if the city is helping by condemning your land), then the empty land just gained a value of $300,000 by the action of the zoning board. And you can’t do anything about it.


The issue is pretty complex, to say the least. This is why the Ohio Legislature has taken a slightly different approach to the situation by enacting SB 167. That bill provides for a moratorium on Kelo-style takes while the Legislature works through the many facets of the situation.

The previous comment only emphasizes why this taking is so outrageous. Property can be taken to eliminate blight. Local decisions naming something blighted are shown great deference. Yet here, the court found the area was not blighted and the city/developers actually admitted that half of their study was a series of errors. So the deck was stacked against the property owners and they proved everything they were required to prove. Ohio law does not allow takings like this where this is no blight. Case closed.

Steve:

First, you suggest that distinguishing between public versus private uses is optional. It is not. If you find the standard unworkable, then I recommend that you change the Ohio Constitution, which plainly includes public use as a predicate for a taking.

Second, your claim regarding the airport fails to take into account the fundamental difference between airports and shopping centers. You treat it as an accident that airports are run by governments, and shopping centers are run by private enterprise. The fact is that among governments most basic functions is providing for a system of transportation. In early days, this meant roads; now the category includes airports. The government at times relies upon private contractors to provide transportation related services, and, in exchange, the law dating back to the earliest common law generally requires them to adhere to common carrier requirements. Among the larger rules historically is that carriers had to serve all paying comers, because they served the public writ large. While we have applied some of these antidiscrimination principles to private malls, we don’t treat them as common carriers who have a duty to serve the public.

We could have a lovely Nozickian debate about whether it makes sense for government to provide goods which private industry could also provide, or whether government could occupy the capitalist sphere of malls, but such ivory tower ruminations are not relevant to the historical/legal reality that governments are intended to provide a certain limited slate of services. While there is some debate between liberals and conservatives as to how large this plate is, no one seriously disputes that governments functions prominently includes maintaining network systems of transporation.

As for your argument about governments becoming sneakier if we actually apply the requirements of the Constitution, that’s as weak as saying that we should not have laws against stealing because then thieves will use stealth to carry out their thefts rather than stealing in broad daylight. As a general matter, the deception may not work. Takings are authorized for limited purposes. If the government changes the purpose, then the owner may have a claim (see, e.g., the litigation concerning "rails to trails, in which land owners who had property taken for an easement for rail lines sued when the government attempted to shift the use to a bike path). Of course, you may take umbrage at my comparison to theft above, because you impute no normative component to takings. You may not consider it "wrong" to take land for private purposes, but, alas, the Ohio Constitution sees it differently.

Commentator:

Thank you for your informative post. I have a few questions and comments in response to your post. Hopefully you’ll respond.

I still have a hard time wraping my mind around the policy argument derived from the Ohio Constitution. It seems that if full compensation were awarded then property rights have not been harmed any, unless there is a right to possess property in a certain form.

Concerning your burden of proof arguments (about blight and the like), I cannot help but think this burden comes straight from Midkiff. Maybe States should adopt stricter standards than rational basis regarding proof of these things. One problem I have always had concerning O’Connor’s and Rehnquist’s dissent in Kelo is that they were fine with the taking in Midkiff. I think Midkiff is a much less justifiable "public" action then Kelo and Midkiff was 9-0. It was like the Court thought condemnation of private land for the benefit of other private landowners was no big deal.

Finally, disregarding constitutional aspects for a moment; I think you are right about the policy of just compensation. One reason why eminent domain is so attractive to developers is that they can get it for less than fair market value. This is wrong. If people are genuinely concerned about slowly eminenmt domain abuse, it seems the proper thing to me is to award attorney’s fees to plaintiffs if they can show the original award is too small (which will keep cities honest). Also, I like the idea about how the future use of the property should be compensated, not the present use. If there was no difference between the market price and the takings price then developers would have more incentive to work out deals. I think eminent domain should be used when 1 or 2 people refuse to sell (like the Norwood) case, and because of the nature of land, a sale MUST happen.

Only one thing concerns me about awarding according to future use. It would seem that that person would get a huge windfall. Just compensation is to allow purchase of a substitute. Furthermore, I bet the IRS would freak out once homeowners began hording away money under 1034 of The Code.

Do you know of any specific legislative proposals concerning takings? I would be very interested in hearing about them.

Public Use:

You have still failed to distinguish airports from shopping malls. You argue that transportation is "public" because it serves all, and cannot discriminate. This is very true. However, since 1964, with the passage of the Civil Rights Act, almost any store involve in commerce must serve the public at large. There is simply no meaningful distinction between the two, as neither can meaningfully discriminate among the public. Both have the duty to keep their premises safe as well. Furthermore, you seem to misunderstand the nature of an airport completely. An airport is different from a road, a canal, or even a railroad. An airport is a giant store where people buy stuff (it would be like a railroad station). Sort of like a shopping mall, except people buy tickets to fly on planes there; although many airports have stores like those you would find in shopping malls. There is no transportation that occurs ON or IN the airport (excluding the short span traveled on the runway). Roads, rails, and canals are all analogous to air for transportation purposes, but governments do not need to build air, and assuming no tall buildings around the airport exist, will not need to condemn in order to preserve the ability to move through air. There is certaintly no necessity compelling an airport to be "public use" other than the fact it would be hard to accumulate all of the land necessary for its construction, which is just like the Norwood case and so many eminent domain cases (see Poletown).

I think your easement case misses the point. I’m sure you know that an easement gives a third party the right to use your land. Unless something crazy has gone on (like nuclear waste dumping), one can go to court, get an injunction telling the third party to stop the activity or tear down the structure that violates the easement. The court has the POWER to restore the status quo regarding the easement. People cannot be sneaky concerning easements because a court can always make them lose their ill-gotten gain, so there is no benefit to be had from being dishonest. This is NOT the case with eminent domain. Once the government destroys one’s house, paves over the land, and allows a mall to be built, no court will have the power to restore the status quo. This means the legal system will favor those who lie about their intentions because once a certain point is reached (destruction of the house probably), the court cannot return to the status quo so the liar gets the benefit of his sneaky action.

"I still have a hard time wraping my mind around the policy argument derived from the Ohio Constitution. It seems that if full compensation were awarded then property rights have not been harmed any, unless there is a right to possess property in a certain form."

Have you even bothered to look at the Ohio Constitution? There is a right to never have your property taken unless it is for public use. Property is inviolate (if you don’t have a thesaurus handy, that means "sacred, sacronsanct, untouchable"). It can only be taken for public use. If it is taken for public use, then we worry about compensation. If it is taken to resell to a mall developer, it violates the constituional right whether the land is paid for or not.

You have completely skipped the legal requirement in order to engage in your own policy debate. Comment 15 is right. Your real problem is with the Ohio Constitution and the fact that you want it to say something different than it does.

By the way, your extremely odd suggestion that an airport is more like a shopping mall than a railroad doesn’t even pass the laugh test.

Steve:

I specifically conceded that we had passed antidiscrimination laws, but you failed to address my larger point: antidiscrimination laws do not make malls common carriers--that is, something serving the public transportation system. It simply suggests that government has chosen to regulate private conduct at a higher level. The fact that government has chosen to regulate more private conduct does not make the businesses regulated public or quasi public.

Your statement that transportation does not occur at airports is a non-sequiter, and makes you look quite foolish. Government has the ability to establish networks of transportation, not just transportation itself. In the case of roads, that means interlinking long ribbons of pavement, as well as building necessary facilities like rest areas. In the case of air travel, that means creating shorter ribbons pavement used for the takeoff and landing, as well as the towers and passenger boarding facilities. To treat airports simply as malls is like treating the interstate highway system as fast food establishments because such services are featured at rest stops.

As for the distinction between easements and takings, it is the general law that property rights are extinguished once a taking is final. (It should be noted, however, that in the rails for trails context, I believe that the easements were permanent in character, which is why the government claimed to have a continuing interest despite the fact that the rail lines were no longer being used.) And no one is arguing that a status quo can be restored once a house is bulldozed. My point was not to equate the two, but to point out the problem with your hypothetical. If it becomes apparent that a municipality never intended the public use it uses as a ruse to seize proeprty, but had a deal to transfer the property to a developer, it does not take much legal imagination to discern that courts will permit remedies, such as a tort actions based on such bases as fraud and fraud on the court seeking the surplus that was wrongly allocated to the private parties. You may counter with questions about the difficulty of proof, but insodoing you are continuing (without addressing), why it is that yours is not an argument for eliminating laws against theft in order to prevent thieves from resorting to cleverness and stealth.


Finally, are you actually going to address the constitutional requirement of public use, or are we going to have to continue to endure your "oh, it’s so difficult to tell what is public and what is private that we should just throw up our hands and ignore the Constitution" argument? The state constitution is much stronger than the federal Constitution on this point. Should we ignore that because it does not conform to your capacity to make distinctions?

Public Use:

I suppose we’ll always disagree about the nature of airports, and whether they are public or private. I would think a facility that allows two private parties to contract for a private service is a private use, but for some reason you do not. I think the distinction between infrastructure and buildings where contracts and services provided by private companies is valid, but you do not. It is certainly the case that the interstate highway system is not like fast food resturants. Roads are for driving, they are free (at least most of the interstate system), and they profit no particular company. Resturants are for eating, they are not free, and they profit the owner. I am unsure of what your example is supposed to prove.

Your dismissal of my "no remedy" hypothetical is odd. What would a succesful plaintiff be entitled to? How much is the violation of the constitution worth? I think we both agree that we should not allow local governments to violate the takings clause if they pay damages.

As far as distinguishing between private and public use, it is difficult and I certainly am not ashamed I have a difficult time with. I suggest you read Midkiff and tell me why that was a public use (9-0) and contrast it with Kelo and tell me why that was not a public use. If any case were clearly NOT a public use it would be Midkiff.

Here are our positions, correct me if I am wrong. You argue that it is possible to distinguish between public and private, but admit that local governments could be sneaky, condemn land, destroy houses, and then use the land for a unconstitutional private use. The remedy for this would be some sort of tort damages. My position is that it is functionally irrelevant if we distinguish because cities can be sneaky, and that this sneakiness will lead to more eminent domain abuse because citizens will not know what is going on. Furthermore, tort damages are no deterrence in these cases because the people making the decision will not have to pay the damages. Finally, soverign immunity might prohibit tort actions anyways. Even if it did not, the plaintiff would have to show bad faith before he collected. I’ll leave it to others to decide which is the more commonsense position.

You should respond to Comment 18. You don’t because you can’t because it knocks your policy preference flat on its face.

By the way, why do you keep referring to Midkiff and Kelo? It has been pretty well established that the Ohio Constitution provides a different level of protection than the Fifth Amendment.

Steve, there is no such thing as "fair market value." There is market value and there is value. Both are inherently subjective. You say "This is particularly important, because most people value their homes at something more than fair market value." It is possible that they value their homes at something more than "market value"...well no shit. If they valued their homes at under market value they would sell. The only place where "fair" comes into market value, is in the agreement between the buyer and the seller. The Seller, sells because he believes that he gets a greater value from selling and the buyer buys because he believes that he gets a greater value from buying. The only "fair" market value arrises when both the buyer and the seller are happy enough with the transaction, to complete it voluntarily.

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