Monday, September 12, 2011

MSD Lick Run 'Daylighting' Plan may have serious problems with Eminent Domain precedents set in Norwood.

MSD, the city of Cincinnati, and county commissioners could face legal hurdles if it resorts to use of eminent domain to acquire parcels for the “daylighting” of Lick Run  as a remedy as somel property owners have now indicated they will not sell..

Recent court decisions  City of Norwood v Horney et all,  has determined that there is a higher standard applied than demolition for development sake and elimination of ‘blight’.

The Institute of Justice effectively argued that case and based on those argument the court held that:

It is unconstitutional to take property through the exercise of eminent domain to obtain a financial or economic benefit alone. Thus, taking property solely for economic development purposes does not satisfy the public-use requirements of Section 19, Article 1 of the Ohio Constitution. This decision sets Ohio apart from the U.S. Supreme Court’s decision in Kelo which ruled that under the U.S. Constitution economic development is a valid public purpose for which private property can be taken.

Statutes that give appropriating entities the right to take property based on the standard that is in a “deteriorating area” are unconstitutional. The term “deteriorating area” is void for vagueness because it does not give property owners fair notice of the standard for taking property. The term also imper-missibly incorporates speculation about the future condition of the property, rather than basing the appropriation on the condition of the property at the time of the taking. Eliminating a “deteriorating area” does not satisfy the public use requirements of Section 19, Article 1 of the Ohio Constitution.

Courts in Ohio will apply a heightened scrutiny and will not simply yield to the discretion of legislative bodies when reviewing statutes and ordinances that regulate the use of eminent domain powers. The actions of legislative bodies will be afforded some deference, but courts will be the final arbiters of whether those actions satisfy proper public purpose requirements.

A court can enjoin or stop the appropriating entity from taking and using the property appropriated during the pendency of an appeal.

How will those arguments potentially play out for MSD,the city, and the county in an eminent domain suit?  Well for one the Mayor, various representative of MSD and the county and even certain EPA representative have all ‘touted’ the use of this “daylighting” of Lick Run for redevelopment in the area. They have rolled out nice drawings showing how they intend to attract developers to the area and how some acquired property for the project will be ‘redeveloped’ by presumably private developers.  It shows as “new construction” in their drawings.

That is problematic for the parties involved, given the court in the Norwood case determined

“It is unconstitutional to take property through the exercise of eminent domain to obtain a financial or economic benefit alone. Thus, taking property solely for economic development purposes does not satisfy the public-use requirements of Section 19, Article 1 of the Ohio Constitution.”

The legal question become: Does the  ‘daylighting’ of a creek constitute a public use. Now MSD could argue that the ‘daylighting’ is part of a ‘park development”. However there are several parks within Fairmount already that provide ample recreational opportunity. In fact the city has recreation facility on Queen City already. So the argument that this is an essential taking has problems. It is not essential as adequate facilities currently exist. Their other problem is they have identified it as part of a revitilization plan.

So the next logical argument will be that the daylighting is ‘necessary’ for the city to meet EPA requirements. However EPA has already determined that the ‘deep tunnel’ provides the necessary avenue to meet the EPA mandate. So the “daylighting’ of the waterway is not NECESARY to meet federal mandate it is just inconvenient and more costly for MSD to do so.  So the question would become, should private property rights prevail regarding the “taking’ of the property for this “purpose/mandate” which can be achieved by other avenues.

This leaves MSD/city/county with the “blight” argument and that Fairmount is a “deteriorating area” but that is even more problematic. This is similar to that argument used by Norwood and they will no doubt argue that South Fairmount is a “deteriorating area”.

However in the Norwood case the court determined that:

 ‘The use of  “deteriorating area” as a standard for determining whether private property is subject for appropriation is void for vagueness. further “ The use of deteriorating area as a standard for the taking is unconstitutional because the term inherently incorporates speculation as to the future condition of a property at the time of the taking”

In fact many would argue it is city policy such as abuse of VBML by city inspection, condemn orders and demolition that drove down property value “perhaps’ in anticipation of eminent domain, but that will likely play out as a separate legal action against the city.

There is already the debate on if South Fairmount may already be turning around. Significant restoration investment in the V&S buildings, several home restorations in the area (along Westwood and Queen City) has happening. The reopening of the old high school on White as Quebec Academy by CPS, the newly restored Roosevelt  K-12 school on Treemont. The millions of on-going investment in Knox Hill and its planned National Registry nomination, all point to a neighborhood coming back, not deteriorating, IN SPITE of city policies and implementation designed to hold those areas back.

Of course MSD has spent huge sums buying property in “anticipation” of this project but the acquisition at this point seems VERY premature and not a good use of taxpayer funds. Despite the city's history of back room deals , those deals may not help in a court of law.

More information about the Norwood case can be found here:

Norwood Decision

No comments:

Post a Comment