It’s bad enough for a local government to use eminent domain to seize personal property, but it’s even worse when that land grab happens immediately through an expedited process known as “quick-take” eminent domain. In public projects involving the “making or repairing” of a road, local government can take possession of a disputed property immediately after it files for eminent domain. The case does not have to go through the normal court process.
This was the situation facing two Ohio homeowners. In October, they suddenly found their front yards in jeopardy as the city of Perrysburg, Ohio tried to grab their property via “quick-take” for a road expansion.
The grab did involve making a road, but there were two problems with its legality, according to the homeowners’ attorney, Maurice Thompson. First, and most significant, said Thompson, Perrysburg did not have authority to seize their property because it lay in Middleton Township, outside the city’s jurisdiction. Second, the city intended to take the land to build a sidewalk, which is not covered by quick-take law.
What was the city’s reason for attempting the “quick take” in the first place? Councilman Todd Grayson, the one councilmember who voted against the eminent domain grab, simply said it’s cheaper than expanding the road on the other side, across from the property owners. The only thing on the other side of the road is a drainage ditch, and no one has any objections to moving it other than that it would increase the estimated cost of the project by $1 million.
Grayson doesn’t believe the extra price tag is a good enough reason for taking and tearing up the front yards of several citizens. “When your justification is ‘it’s cheaper,’ that’s not a legal reason for taking people’s property,” he said. He also suggests that the city attorney downplayed potential legal costs that would arise from homeowner opposition and that those costs were not factored into the financial comparison.
Sure enough, the homeowners pushed back against the city’s land grab, and two weeks later, Watchdog reported, an Ohio court ruled Perrysburg cannot use “quick-take” eminent domain to seize their properties.
“This Court finds that if the legislature intended for ‘quick-take’ procedures to extend to other areas, those other areas would have accordingly been referenced somewhere… They are not,” said Wood Country Probate Judge David Woessner. As a result, the city must wait for the traditional eminent domain process to run its course.
The story ended in “a victory for private property rights across Ohio,” according to Thompson. But abuses of eminent domain are not limited to “quick-take” methods, and many are not successfully challenged. As Watchdog Opinion writers have pointed out a number of times, local government sometimes uses eminent domain on behalf of corporate interests – in the name of “economic development.”
Eminent domain “was originally set up to be used only if somehow taking property was really for a ‘public use,’ like a road expansion,” writes Watchdog Opinion contributor Samuel Friedman, but cases like 2005’s Kelo v. City of New London “created an entirely new problem where governments used the clause to seize property for private use if somehow the argument that doing this was in the ‘best interest of the community’ would stand.”
In Kelo v. City of New London, the city of New London, Connecticut wanted to provide Pfizer, a large pharmaceutical company, with land around a research facility the company planned to build. The company would have attracted jobs and helped boost the region’s flagging economy. In order to do this, however, they would need the property of two families who were not interested in moving, so the city invoked eminent domain. The case went to the Supreme Court, which decided 5-4 in the city’s favor, and the neighborhood was seized and destroyed. Yet in a tragic turn of events, the private developer could not obtain financing for the project. The land now sits empty and abandoned.
Similar incidents involving the use of eminent domain on behalf of private developers threaten to crop up elsewhere. In Illinois, for example, Watchdog Opinion writer Hilary Gowins says Northeastern Illinois University wants to bulldoze six properties so a private developer can build dorms and retail stores instead. University president Sharon Hahs is considering pursuing eminent domain to wipe out the properties of these six businesses, even though they have invested in the neighborhood for years.
In Delaware several years ago, a major developer named Harvey Hanna and Associates wanted to build a shopping center next to the property of a retired truck mechanic named Jack Slawter. Slawter depended on renting that property for much of his income. Even after Harvey Hanna made him an offer, he didn’t want to sell his land. Harvey Hanna needed the land to build an entrance to the proposed mall, so it summoned the state Department of Transportation (DelDOT) to use eminent domain to take Slawter’s property. He responded by retaining a lawyer who argued DelDOT was abusing its eminent domain powers. After both sides dug their heels in, Slawter appealed to the statehouse for help. Lawmakers passed some property-rights reforms to reel in abuse of eminent domain, but ultimately did little to help Slawter’s situation. DelDOT was exempted from the new rules. Eventually the state agency and Harvey Hanna would settle with Slawter. He couldn’t win.
Friedman argues that the state of Delaware has spent much more handling the case than if they had never gotten involved with Harvey Hanna in the first place. At the end of the day, it seems, the only real winners in these incidents are lawyers. This is the case in Minnesota’s Carver County, where Minnesota Watchdog reporter Tom Steward covered a dispute in the Twin City suburbs over a two mile stretch of land obtained from 14 different land owners by eminent domain. Legal fees in the county have soared in the three years since condemnation and destruction. The private attorney litigating settlements for the county stands to collect more than $800,000 – almost four times more than original anticipated. County taxpayers also face tens of thousands of dollars in additional costs as landowners settle.
All these costs shouldn’t come as a surprise to Carver County. With their estimates for the price of land running on the low end of the spectrum, and landowners’ appraisals reaching several times that ($845,000 versus $4.1 million, in one instance), disputes are bound to flare up as landowners vent frustration with the county’s lowball appraisals.
In any case, the lesson from all of these stories is clear. Legal fees will always haunt eminent domain grabs, especially when the government doesn’t move forward in good faith.