Ohio eminent domain task force misses the point

5th Amendment textThe Ohio task force on eminent domain has released its preliminary report, and it’s missed the most important point of the exercise. I’m not interested in a fairer procedure for the government to use as it takes my home. I’m not interested in a clearer definition of “blight” that spells out exactly when the government can take my home. You see, I don’t want the government to take my home at all. Why is that so hard to understand?
A local or state government can exercise its eminent domain powers to take private property from its owner, if the government does so for a “public use” and pays “just compensation” (see the Fifth Amendment, at right). Until very recently, the term “public use” meant what you’d expect: building a school, putting in a highway, laying railroad tracks, and other projects that the public has access to.
We used to think of private building projects as a “private use” of property, since the public doesn’t have guaranteed access. But no more. Thanks to the U.S. Supreme Court’s ruling in Kelo v. New London last summer, the definition of “public use” has expanded to include the government seizing your land and giving it to another private owner for “economic development” (which means the new owner’s project yields higher property taxes than you do, or creates jobs, or some similar rationalization).
Liberals and conservatives alike blew a collective gasket over the ruling, and angry voters have already pressured several state legislatures into passing laws prohibiting these takings through eminent domain.


Task force charterFor whatever reason, Ohio’s legislature couldn’t muster the will to follow suit. Instead they imposed a one-year moratorium on Kelo-style takings, and created a task force (“The Legislative Task Force to Study Eminent Domain and Its Use and Application in the State”) to review Ohio’s laws on eminent domain and make recommendations on how to respond to Kelo. You’ll find the task force’s charter in the box at left. Keep part (c) in mind, because we’ll revisit it shortly.
Which brings us to the preliminary report released on March 31st. Here it is in PDF format (the text isn’t searchable, so you’ll have to slog through it page by page):

The members of the eminent domain task force have tied themselves into knots trying to define “blight” and trying to come up with “fairer” procedures for eminent domain takings.
But the task force didn’t address the root issue: whether the government should ever be allowed to take your property and give it to somebody else. The only passing mentions of whether the government should engage in such takings at all were this one …

The Task Force also heard from various individuals who found themselves adversely impacted by what they considered to be the misuse or abuse of eminent domain, private property rights advocates, representatives of small businesses and several experts on the legal, historical, and academic aspects of eminent domain. Although specific recommendations varied, it would be accurate to say that this segment urged the Task Force to recommend that the Legislature take a definitive approach to protect the private property rights of individuals. Specific recommendations were made to pass a state constitutional amendment to prohibit all takings of unblighted private property (Ed.: notice the “unblighted” loophole; if you define “blighted” loosely enough then this exception gives us no real protection) from unwilling sellers when the take will ultimately result in the property being vested in another private owner under the auspices of economic development, to establishing a clear, statewide standard of blight (irrespective of whether or not doing so would require a constituional amendment to address the issue of home rule).

Preliminary report, page 7
(emphasis added)

… and this one, which ever so smoothly omits the number of task force members opposed to all economic development takings, and frankly comes across as a condescending attempt to pay lip service to a supposedly silly viewpoint so those few kooks who believe in property rights won’t get their dander up:

In roundtable discussions and in an informal poll of the members, several individuals expressed the opinion that they believed or were “leaning strongly” that the Task Force should recommend that the Legislature prohibit all uses of eminent domain for economic development. It should be noted that this position was often subject to some sort of clarification of what was meant by economic development or some additional minimal standards of blight to apply statewide. (Ed.: again with the “blight” qualification!)

Preliminary report, page 9
(emphasis added)

Part (c) of the task force’s charter directs it to study the impact of eminent domain on Ohio residents. Obviously, the worst possible impact on a property owner would be losing their property. That’s what spurred Suzette Kelo to sue the City of New London. That’s also what we Ohio residents care about, not this twaddle from the preliminary report:

A major difference of opinion exists among members of the Task Force regarding how blight should be defined, if in fact a percentage of blight should be defined at all, and if so, what the percentage should be. While a majority of Task Force members do believe that it is the best policy to restrict the use of eminent domain for economic development purposes to some standard of blight, there is a clear difference among members as to whether the current definition is adequate.
Thus it is our initial recommendation that the General Assembly consider establishing a statewide standard of blight and that any use of eminent domain for the purposes of economic development or urban renewal is subject to a minimum standard of that definition of blight in the area to be redeveloped. It is further our initial recommendation that a number of procedural changes be considered in the eminent domain process. The Task Force may make further recommendations by August 1, 2006.

Preliminary report, page 11

Missed targetIt’s time for the task force to go back to the drawing board. Its members aren’t stupid. They know what an uproar the Kelo case caused. The Ohio Legislature is pretending they don’t see this elephant in the living room. This whole task force process reminds me of what the U.S. Congress does whenever it comes time to address a very controversial issue: it appoints a blue ribbon commission to investigate and make recommendations, so that individual members of Congress gain cover for any unpopular decisions that result. They can just say, “Sorry, it wasn’t my idea. Talk to the Commission.” The 9/11 Commission fell squarely into this category, as did every Base Realignment And Closure Commission ever chartered to close military bases. This eminent domain “investigation” is a case of the Ohio Legislature and its task force punting a contentious issue into the future until after the upcoming election. They hope to slide something nasty past all of us right after election day, and they’re betting that we’ll forget by 2008. They’re not stupid. They’re afraid of us, and rightly so.
Based on the preliminary report’s findings, it’s a safe bet that the task force’s final recommendations will include a “clearer definition of blight” and “fairer procedures” for eminent domain takings, but the root issue will get lip service (at best). That final report comes out on August 1st. Before that date arrives, we citizens need to remind our representatives and senators that we won’t tolerate a government that takes our private property and gives it to other people who supposedly know better than we do about how it should be used. We need to get these politicians on the record either for or against economic development takings, because if they support the idea they’ll be out of their cushy jobs in a heartbeat. Don’t let them sweep this under the rug.
This is about as bipartisan as any issue gets, dear reader. Act on it or risk losing your property.

Update: I found a searchable version of the preliminary report at the Greater Ohio web site. Boy, what a difference in readability!
Update (4/17): That’s a nice golf course youse got dere. It’d be a shame if something happened to it.

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