Norwood v. Horney, No. 2005-0227.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtO'Connor
Citation853 N.E.2d 1115,2006 Ohio 3799,110 Ohio St.3d 353
PartiesCITY OF NORWOOD, Appellee, v. HORNEY et al., Appellants. (Two Cases.) City of Norwood, Appellee, v. Gamble et al., Appellants. (Two Cases.)
Decision Date26 July 2006
Docket NumberNo. 2005-0227.,No. 2005-0228.,No. 2005-1211.,No. 2005-1210.

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853 N.E.2d 1115
110 Ohio St.3d 353
2006-Ohio-3799
CITY OF NORWOOD, Appellee,
v.
HORNEY et al., Appellants. (Two Cases.)
City of Norwood, Appellee,
v.
Gamble et al., Appellants. (Two Cases.)
No. 2005-0227.
No. 2005-0228.
No. 2005-1210.
No. 2005-1211.
Supreme Court of Ohio.
Submitted September 28, 2005.
Decided July 26, 2006.
Submitted January 11, 2006.

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Wood & Lamping, L.L.P, and Robert P. Malloy, Cincinnati; and Institute for Justice, Dana Berliner, Scott G. Bullock, Washington, DC, William H. Mellor, Robert W. Gall, and David Roland, for appellants.

Manley Burke, L.P.A., Timothy M. Burke, Gary E. Powell, Cincinnati, and Daniel J. McCarthy; and Rick G. Gibson, City of Norwood Law Director, and Theodore E. Kiser, Assistant Law Director, for appellee city of Norwood.

Dinsmore & Shohl, L.L.P., Mark A. Vander Laan, Bryan E. Pacheco, Lawrence R. Elleman, and Richard B. Tranter, Cincinnati, for appellee Rookwood Partners, Ltd.

Baker & Hostetler, L.L.P., John H. Burtch, David C. Levine, Columbus, and Marcella L. Lape, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amicus curiae Ohio Association of Realtors.

Michael R. Gareau & Associates, L.P.A., and David M. Gareau, North Olmsted, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amici curiae Pacific Legal Foundation and the Claremont Institute.

Jones Day, Mark Herrmann, Cleveland, and Mary Beth Young, Columbus; and Derek L. Gaubatz, Washington, DC, Anthony R. Picarello Jr., and Jared N. Leland, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amicus curiae Becket Fund for Religious Liberty.

Barbara J. Morley and Donald Gallick, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amicus curiae the Reason Foundation.

Gibson Dunn & Crutcher, L.L.P., Jeffrey A. Wadsworth, and Rachel Zwolinski, Washington, DC, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amicus curiae Individual Ohio Home and Business Owners.

Hughes & Luce, L.L.P., and Matthew R. Miller, Dallas, TX, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amicus curiae Property & Environment Research Center.

Jones Day, Douglas M. Mansfield, and Chad A. Readler, Columbus, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amici curiae Ohio Farm Bureau Federation and Hamilton County Farm Bureau.

Browning & Meyer Co., L.P.A., and William J. Browning; and O'Melveny & Myers, L.L.P., Brian P. Brooks, and Garrett W. Wotkyns, Washington, DC, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amici curiae Ohio Conference of the National Association for the Advancement of Colored People and National Institute for Urban Entrepreneurship.

Porter Wright Morris & Arthur, L.L.P., David C. Tryon, Jeffrey J. Weber, and Patrick T. Lewis, Cleveland, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amici curiae National Federation of Independent Business Legal Foundation and American Association of Small Property Owners.

William G. Batchelder, Medina; and Kirkland & Ellis, L.L.P., Douglas G. Smith, Larry J. Obhof, and Andrew P. Bautista, Chicago, IL, urging reversal in case Nos. 2005-1210 and 2005-1211 on behalf of amici curiae Ashbrook Center for Public Affairs and William G. Batchelder.

Ely M.T. Ryder, Cincinnati, urging affirmance in case Nos. 2005-1210 and 2005-1211 on behalf of amici curiae Donna Laake, William Pierani, and Paul Triance.

Coolidge, Wall, Womsley & Lombard Co., L.P.A., and John C. Chambers, Dayton, urging affirmance in case Nos. 2005-1210

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and 2005-1211 on behalf of amici curiae First Suburbs Consortium of Northeast Ohio, Central Ohio First Suburbs Consortium, First Suburbs Consortium of Southwest Ohio, and First Tier Suburbs Consortium.

Lindner & Weaver, L.L.P., and Daniel F. Lindner, Cleveland, urging affirmance in case Nos. 2005-1210 and 2005-1211 on behalf of amici curiae American Planning Association and Ohio Planning Conference.

O'CONNOR, J.


{¶ 1} In case Nos. 2005-1210 and 2005-1211, we decide the constitutionality of a municipality's taking of an individual's property by eminent domain and transferring the property to a private entity for redevelopment. In doing so, we must balance two competing interests of great import in American democracy: the individual's rights in the possession and security of property and the sovereign's power to take private property for the benefit of the community.

{¶ 2} In case Nos. 2005-0227 and 2005-0228, we determine the constitutionality of the provision in R.C. 163.19 prohibiting a court from enjoining the taking and using of property appropriated by the government and transferred to a private party for redevelopment, after the compensation for the property has been deposited with the court but prior to appellate review of the taking.

{¶ 3} Our consideration does not take place in a vacuum. We recognize that eminent domain engenders great debate.1 Its use, though necessary, is fraught with great economic, social, and legal implications for the individual and the community. See, generally, Keasha Broussard, Social Consequences of Eminent Domain: Urban Revitalization Against the Backdrop of the Takings Clause (2000), 24 Law & Psychology Rev. 99.

{¶ 4} Appropriation cases often represent more than a battle over a plot of cold sod in a farmland pasture or the plat of municipal land on which a building sits. For the individual property owner, the appropriation is not simply the seizure of a house. It is the taking of a home — the place where ancestors toiled, where families were raised, where memories were made. Fittingly, appropriations are scrutinized by the people and debated in their institutions.

{¶ 5} In reviewing an appropriation similar to that at issue here, a sharply divided United States Supreme Court recently upheld the taking over a federal Fifth Amendment challenge mounted by individual property owners. Kelo v. New London (2005), 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439. Although it determined that the Federal Constitution did not prohibit the takings, the court acknowledged that property owners might find redress in the states' courts and legislatures, which remain free to restrict such takings pursuant to state laws and constitutions.

{¶ 6} In response to that invitation in Kelo, Ohio's General Assembly unanimously enacted 2005 Am.Sub.S.B. No. 167. The legislature expressly noted in the Act its belief that as a result of Kelo, "the interpretation and use of the state's eminent domain law could be expanded to allow the taking of private property that is not within a blighted area, ultimately resulting in ownership of that property being vested in another private person in violation of Sections 1 and 19 of Article I, Ohio Constitution." Section 4(A), 2005 Am.Sub.S.B. No. 167. The Act created a task force to study the use and application of eminent domain in Ohio and imposed "a moratorium on any

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takings of this nature by any public body until further legislative remedies may be considered."2 Id.

{¶ 7} We now turn to the cases pending before us, which raise social and legal issues similar to those in Kelo.

{¶ 8} The appellants' property was appropriated by the city of Norwood after the city determined that the appellants' neighborhood was a "deteriorating area," as that term is defined in the provisions governing appropriations in the Codified Ordinances of the City of Norwood ("Norwood Code"). Although, as we shall discuss below, we have held that a city may take a slum, blighted, or deteriorated property for redevelopment, State ex rel. Bruestle v. Rich (1953), 159 Ohio St. 13, 50 O.O. 6, 110 N.E.2d 778, and suggested that the taking is proper even when the city transfers the appropriated property to a private party for redevelopment, AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 553 N.E.2d 597, we have never been asked whether a city may appropriate property that the city determines is in an area that may deteriorate in the future.

{¶ 9} We hold that although economic factors may be considered in determining whether private property may be appropriated, the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution.

{¶ 10} We also hold that the void-for-vagueness doctrine applies to statutes that regulate the use of eminent-domain powers. Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers. Applying that standard, we hold that Norwood's use of "deteriorating area" as a standard for appropriation is void for vagueness. We further hold that the use of the term "deteriorating area" as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.

{¶ 11} Finally, we hold that the provision in R.C. 163.19 that prohibits a court from enjoining the taking and using of property appropriated by the government after the compensation for the property has been deposited with the court but prior to appellate review of the taking violates the separation-of-powers doctrine and is therefore unconstitutional. We further hold that the unconstitutional portion of R.C. 163.19 can be severed from the rest of the statute, and, accordingly, the remainder of the statute remains in effect.

I. RELEVANT BACKGROUND
A
Norwood and Its Denizens

{¶ 12} The city of Norwood is a modern urban environment. Surrounded by the city of Cincinnati, Norwood was once home to...

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