As reportedby the ABC affiliate in Cincinnati in September, an Ohio state courthas ordered the City of Norwood to make whole the property owners whowere wrongfully targeted by the City for eminent domain. The decisionis the fallout from the Ohio Supreme Court’s decision in City of Norwood v. Horney,853 N.W.2d 1115 (Ohio 2006), which struck down the City’s attempt totake private property by eminent domain. The court held that there wasnot a public use for the taking under the Ohio Constitution, andinvalidated a part of Ohio’s eminent domain statute. After that decision, the property owners asked the trial court to “be made whole—to be able to return our business to itscondition before Rookwood and the City illegally took it from us.”
On September 25, 2007, the judge held that “[t]he Court finds that, in order to carry out the Supreme Court’s ruling,the [property owners] are entitled to be placed in the position they were priorto the taking.” As notedby the Institute for Justice (the attorneys who represent the propertyowners), the court also held that “In order to unwind the appropriation[of their property],the Burtons are entitled to have their property back in substantiallythe same condition it was before the taking.” The City had takenpossession of the property pending the appeal, and the court also heldthat the City will be responsible for the costs of unwinding the damageit did to the property in the interim. More on this case from the IJ here.
Hawaii eminent domain law requires a similar result. Haw. Rev. Stat. § 101-27requires that “[w]henever any [eminent domain] proceedings . . . areabandoned or discontinued before reaching a final judgment, or if, forany cause, the property concerned is not finally taken for public use,”the property owner:
shall be entitled, in suchproceedings, to recover from the plaintiff all such damage as may havebeen sustained by the defendant by reason of the bringing of theproceedings and the possession by the plaintiff of the propertyconcerned if the possession has been awarded including the defendant’scosts of court, a reasonable amount to cover attorney’s fees paid bythe defendant in connection therewith, and other reasonable expenses;and the possession of the property concerned shall be restored to thedefendant entitled thereto.
In other words, if an attempt to take property is halted, government must make the landowner whole.
Hat tip to Eminent Domain Watch for the alert on the Ohio case, and to the attorneys at the Institute for Justice for providing a copy of the court’s ruling.