Ohio Court Makes Property Owners Whole After Eminent Domain Struck Down

As reported by the ABC affiliate in Cincinnati in September, an Ohio state court has ordered the City of Norwood to make whole the property owners who were wrongfully targeted by the City for eminent domain.  The decision is 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 to take private property by eminent domain.  The court held that there was not a public use for the taking under the Ohio Constitution, and invalidated 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 its condition 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 prior to the taking."  As noted by the Institute for Justice (the attorneys who represent the property owners), the court also held that “In order to unwind the appropriation [of their property], the Burtons are entitled to have their property back in substantially the same condition it was before the taking.”  The City had taken possession of the property pending the appeal, and the court also held that the City will be responsible for the costs of unwinding the damage it 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. § 101-27 requires that "[w]henever any [eminent domain] proceedings . . . are abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use," the property owner:

shall be entitled, in such proceedings, to recover from the plaintiff all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses; and the possession of the property concerned shall be restored to the defendant 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.