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The Ohio Supreme Court last week became the first state high court to hear challenges to the use of eminent domain to seize homes for development since the practice was approved by the U.S. Supreme Court-and similar clashes await in Massachusetts, Virginia and Oklahoma. If Ohio is any sign, litigation over eminent domain will be a fiercely contentious, state-by-state battle. The Ohio case drew 48 friend-of-the-court briefs, including more than a few unusual allies. The Pacific Legal Foundation, according to its Web site, fights against the “tyranny of overzealous bureaucracies.” It is on the same side as the Ohio Conference of the National Association for the Advancement of Colored People, a civil rights group that has often relied on lawmaking and court intervention. Both weighed in with homeowners and a small business owner who refused to sell their properties to a development company. The city of Norwood then declared the neighborhood “deteriorating” and seized their properties for private economic development purposes under the doctrine of eminent domain for urban renewal purposes. Norwood v. Horney, No. 2005-1210. There are 10 friends of the court on the other side. The familiar ring of facts comes from last year’s 5-4 U.S. Supreme Court decision that upheld a Connecticut city’s right to seize private property for private economic development, because local law permitted takings for the purpose of economic rejuvenation, even though the properties were not blighted. Kelo v. City of New London, 125 S. Ct. 2655. Since then, roughly 40 states have considered legislation or constitutional measures that would limit or eliminate the right to take property for private-development purposes. In Ohio, a post- Kelo law prevents the seizure of “unblighted” property for the use of private developers-at least while the issue is studied. These suits predate that law. Every state but Utah still allows for the seizure of blighted property for private development. Constitutional limits The use of eminent domain should be limited to properties that cause actual harm to public health or safety-”condemnations that would happen anyway without the involvement of another private party,” said Dana Berliner, a senior counsel for the Virginia-based Institute for Justice, which represented the appellants. “This is a typical middle class neighborhood in Ohio. What’s happened to them could happen to anyone [if there is no] limit to the use of eminent domain for private development.” Eminent domain was used only as a last resort, said the city’s lawyer, Timothy Burke of Cincinnati’s Manley Burke. He said that 64 out of 67 properties were willingly sold to developers above market value.

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