Domain Game
Currie, Duncan
Domain Game The "takings clause" fight moves to the Ohio Supreme Court. BY DUNCAN CURRIE Norwood, Ohio STANDING on the corner of Atlantic Avenue and Edwards Road in Norwood, a suburb of...
...Joe Horney and the other holdouts are fools for not taking the money," James Lee Patton told the Cincinnati Enquirer in April...
...It is also the site of the first major battle over eminent domain since the Supreme Court's notorious Kelo ruling...
...The court held that the five remaining properties could be seized via eminent domain to spur private commercial development...
...Joe Horney owns—or used to own—one of the three houses still Duncan Currie is a reporter at THE WEEKLY STANDARD...
...The $125 million project, called Rookwood Exchange, included office space, luxury condos, retail stores, and more...
...The state has also commissioned a task force to study the matter...
...Joe Horney and the Gambles are not the only ones waiting anxiously for the decision...
...it merely applied to new eminent domain takings...
...You can get your property back—but your home is gone...
...Since Kelo came down, Ohio has placed a moratorium—effective until December 31—on cities' deploying eminent domain in an "unblighted area" when the primary purpose is private economic development...
...The majority opinion, penned by Justice John Paul Stevens, did however encourage states to take action if they wanted to protect property rights...
...By the city's definitions, however, huge swaths of the United States could easily be considered "blighted" or "deteriorating...
...He recalls the September 2002 meeting at which the developers laid out their plan...
...Some of their former neighbors think what they're doing is just plain silly...
...None was dilapidated...
...It was a matter of principle...
...Stevens wrote, "The necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate...
...An Enquirer analysis of real estate records concluded that "on average" the vast majority of property owners who sold to Rookwood "received more than double the fair market value most recently estimated by the Hamilton County Auditor...
...The developer was offering good money," admits Joy Gamble...
...They offered a compensation package to each property owner...
...Directly across Edmondson Road from the fenced-in construction site are the sprawling Rookwood Commons and Rookwood Pavilion shopping centers with the familiar totems of bourgeois suburbia: Eddie Bauer, the Gap, Starbucks, and Coldwater Creek...
...By far the tallest structure in Rookwood mall is the Northwestern Mutual building, which includes the headquarters of Anderson Real Estate...
...The Rookwood-fund-ed study identified a hodgepodge of minor maladies affecting the neighborhood: light pollution (from the nearby Rookwood mall), sidewalk cracks, weeds, dead-end streets (an alleged hazard for fire trucks), its proximity to the interstate highway, and, most bizarrely, the "diversity of ownership" in the community (i.e., there were too many small property owners...
...The adjacent streets—part of an old Cincinnati neighborhood called Oakley—are lined by leafy trees and modest to hefty middle-class homes, most of which have backyards, sizable porches, and well-kept front lawns...
...This meant little to the Norwood city council, which has been battling periodic fiscal emergencies at least since 1987, when the closing of a GM plant cost the city some 4,000 jobs and 35 percent of its tax base (according to the Cincinnati Enquirer...
...Thus began this saga of demolition, litigation, and frustration...
...What is now largely a grassy field used to contain more than 70 different buildings, many of them family homes...
...Luckily for Horney and the Gambles, the Ohio State Supreme Court enjoined Rookwood from bulldozing their properties...
...And Horney just didn't want to sell...
...Today, just three sets of property owners are left fighting the Norwood city council...
...But not a single property was tax delinquent...
...Three of the properties are still intact—at least until the Ohio State Supreme Court decides the consolidated cases of Norwood v. Horney, Norwood v. Gamble, and Norwood v. Burton, which could happen any week now...
...But building it meant clearing out dozens of Norwood families...
...Most of the owners eventually caved, however, and accepted the developer's offer...
...No property is worth holding on to for the sums the developer was offering...
...If you stroll farther down Edwards Road, just a few blocks past the project site, you will find a stretch of retail businesses, including a Thai restaurant, a wine store, a tailor, hair salons, a dental office, a fish market, sports bars, a piano store, an antiques store, an electronics store, a cat clinic, and other shops...
...In June 2004, a Hamilton County court ruled that the neighborhood was, in fact, "deteriorating," but not actually "blighted...
...Neighbors began pressuring each other to sell...
...BY DUNCAN CURRIE Norwood, Ohio STANDING on the corner of Atlantic Avenue and Edwards Road in Norwood, a suburb of Cincinnati, I'm gazing at the remains of a once-crowded middle-class neighborhood...
...Several months later, while that decision was being appealed, another county court ruled that Rookwood Partners was free to raze the property of Joe Horney...
...Several years ago, founder and CEO Jeffrey Anderson moved to expand his commercial empire across Edmondson Road...
...I stood up at that meeting, and I said, 'What you're doing is wrong.'" Horney, 37, felt the offer was below fair market value, but, he insists, it wasn't really about the money...
...None of which surprises Joy Gamble...
...But even then, Horney claims, the whiff of eminent domain action was in the air...
...Even if Hor-ney eventually won his challenge, what good would it do...
...Pretty soon, there were only five sets of property owners still resisting...
...It controls both Rook-wood Commons and Rookwood Pavilion...
...But that is exactly what has been happening across the country for decades...
...Such budget woes gave Norwood a powerful incentive to favor the economic development idea put forth by Rook-wood Partners...
...standing in the Rookwood project site, a house he rented to two tenants...
...The problem received little public notice until last June, when the Supreme Court ruled in Kelo v. New London that confiscating private property to promote economic development was indeed constitutional...
...When people are faced with principle versus money, 99 percent of them will take the money...
...But, again, if you apply the Norwood city council criteria, you could conceivably declare this vicinity "blighted" and "deteriorating" as well...
...That is really a radical interpretation of the law," laughs Scott Bullock, an Institute for Justice lawyer working with the appellant group...
...The Ohio High Court must now resolve whether Norwood went too far in the Rook-wood case—and whether it is legal to raze a piece of property while the owner is waging an appeals battle through the courts...
...But it was not retroactive...
...After Norwood paved the way for redevelopment of the Rookwood Exchange lot, an angry band of property owners teamed up with the Institute for Justice, a libertarian law firm that works pro bono, to challenge the finding...
...The principle she refers to is this: Cities should not be abusing the "takings clause"—the passage in the Fifth Amendment that says seizure of private property is only warranted "for public use" and with "just compensation"—to enrich private developers and boost city revenues...
...Nor did the area have a crime problem—quite the opposite...
...As one local merchant told me, the Edwards Road location borders on some of the safest neighborhoods in Cincinnati...
...Indeed, Norwood let the developer bankroll an "urban renewal" study of the Edwards Road neighborhood, on which basis the city declared the area "blighted" and "deteriorating...
...In January 2005, the county court made a similar ruling against the Gambles: Their home could also be torn down during the appeals process...
...The company is worth an estimated $500 million...
...One family who did not was the Gambles, a couple in their late 60s, who had lived at 2641 Atlantic Avenue for over three decades...
Vol. 11 • June 2006 • No. 38
