State ex rel. Bruestle v. Rich
| Decision Date | 18 February 1953 |
| Docket Number | No. 33125,33125 |
| Citation | 159 Ohio St. 13,110 N.E.2d 778 |
| Parties | , 50 O.O. 6 STATE ex rel. BRUESTLE, City Sol. v. RICH, Mayor, et al. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Where an urban redevelopment project contemplates the acquisition of property located in a slum area, the elimination of slum conditions in the area by clearing therefrom the buildings and making the land available for redevelopment and the subsequent sale of the land for redevelopits use which will insure against recurrence of slum conditions, and where such project apparently has as its primary purpose the elimination of slum conditions and provisions against their recurrence, such project may involve a public use or purpose for which public funds can be expended and the power of eminent domain exercised.
2. Under Section 19 of Article I of the Ohio Constitution property taken for 'the public welfare' is regarded as property 'taken for public use.'
3. Property may be taken for 'the public welfare' or 'for public use,' as those words are used in Section 19 of Article I of the Ohio Constitution, even though it is contemplated that there will at some future time be no use or right of use of the property taken on the part of the public or some limited portion thereof. (Paragraph three of the syllabus in Pontiac Improvement Co. v. Board of Commissioners, 104 Ohio St. 447, 137 N.E. 635, 23 A.L.R. 866, limited.)
4. If the primary purpose for the exercise of the power of eminent domain is to acquire the property for the public welfare within the meaning of Section 19 of Article I of the Ohio Constitution, the power may be exercised even where there may be an incidental nonpublic use of the property or benefit from its taking.
5. The elimination of slum and other conditions of blight and provisions against their recurrence are ordinarily conducive to 'the public welfare' as those words are used in Section 19 of Article I of the Ohio Constitution.
6. Where in order to eliminate slum conditions it is necessary that buildings in a slum area be demolished, land in that area cleared and graded and streets and utilities therein rearranged, and where during this process any reasonable private use of such area would probably be impossible and such slum elimination by a city will necessitate for a substantial period complete dominion by that city over and its use of such area, and where restrictions on the use of the property therein for the purpose of preventing recurrence of slum conditions may reasonably appear to offer a surer method of preventing such recurrence than any other method such as zoning, it is neither arbitrary nor unreasonable that the fee in the real estate in the area be acquired as reasonably needed for the primary purposes of slum clearance and the prevention of the recurrence of slums even where it is proposed that the real estate acquired will be disposed of by sale after the slum conditions have been eliminated.
7. 'All powers of * * * self-government' as set forth in Section 3 of Article XVIII of the Ohio Constitution include the power of eminent domain.
8. Where a redevelopment project is within the lawful purposes of a government, then such redevelopment project with respect to a slum area in a city is within the lawful purposes of the city government.
9. No provision of the Constitution of Ohio authorizes the interference by general laws with the exercise of the power of eminent domain, to the extent that such power is granted to municipalities by Sections 3 and 10 of Article XVIII of that Constitution.
10. Under a redevelopment project, having for its primary purpose the elimination of slum conditions in a slum area and provision against their recurrence, a city does not, contrary to Section 6 of Article VIII of the Ohio Constitution, lend its credit to present owners of property in the area by paying them compensation for buildings which could be condemned under the police power; and such city does not so lend its credit to prospective purchasers of the redeveloped property by making site improvements contemplated by the redevelopment plan before such property is sold to them.
11. An area may constitute a slum area even though a small percentage of the buildings within the area are not substandard buildings and a small percentage of the area constitutes vacant land. The acquisition of such buildings and such vacant land may be reasonably necessary in order to clear such slum area and prevent recurrence of slum conditions therein.
This proceeding was instituted in this court by the filing of a petition by the city solicitor of Cincinnati as a relator for a writ of mandamus to require the respondent city officials to execute 'project temporary loan note No. 1' in connection with the Laurel Redevelopment Area No. 3 Project, as the respondents have been directed to do by duly enacted ordinances of the city.
The material allegations of the petition may be summarized as follows:
In ordinance No. 345-1951, the city council found that an area in said city described therein by metes and bounds, including Laurel Redevelopment Area No. 3, is an area in which the majority of the structures are detrimental to the public health, safety and welfare, and that said area is a blighted area. In ordinance No. 347-1951, the council adopted a plan for the redevelopment of Laurel Redevelopment Area No 3. Thereafter, the council by resolution described Laurel Redevelopment Area No. 3 by metes and bounds and approved the foregoing redevelopment plan for that area.
Thereafter, by ordinance No. 197-1952, the city manager of Cincinnati was authorized to execute a loan and grant contract with the United States for financial assistance in connection with redevelopment of Laurel Redevelopment Area No. 3. Thereafter, that contract was duly executed on behalf of the United States and on behalf of the city.
By the terms of that contract the United States agrees to land not to exceed $3,097,968 to the city to pay its cost and expense of undertaking and carrying out the redevelopment of Laurel Redevelopment Area No. 3 and of complying with the contract. The purpose of the contract is to provide, under Title I of the Housing Act of 1949, 42 U.S.C.A. § 1451 et seq., for the extension by the federal government to the city of financial assistance with respect to the Laurel Redevelopment Area No. 3 project. That project involves substantially:
(c) The installation, construction and reconstruction of streets, utilities and other site improvements in the project area essential to the preparation of sites therein for uses in accordance with the plan, and
(d) The making by the city of project land available for development and redevelopment by private enterprise or public agencies (including sale, initial leasing, or retention by the city itself) at its fair value for uses in accordance with the plan.
Under the contract the federal government agrees to make the city, at the conclusion of the project, a 'capital grant' in an amount equal to two-thirds of the net loss to be sustained in connection with the project; and the remaining one-third is to be made up by the city in the form of 'local grants in aid' and may consist of site improvements, the furnishing of parks, playgrounds, and public buildings and facilities.
Payments on project temporary loan notes are to be made solely from the project temporary loan repayment account provided for by a duly enacted ordinance. This account will be made up of:
(f) All accrued interest, if any, which is paid to the city on project temporary loan notes at the time when the United States takes up and pays for such project temporary loan notes, and
(g) The unexpended balance, if any, remaining in the project expenditures account after all costs of the project shall have been paid.
The costs of the project are to be paid from the project expenditures account duly established by ordinance and which consists of:
(d) All income which is derived by the city directly from its temporary operation of project land pending its preparation and ultimate sale, lease, or retention by the city, and
(e) All income which is derived by the city directly from its demolition of buildings and structures on project land.
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