H.B. 331

126th General Assembly

(As Introduced)

Reps.     Gibbs, Faber, Cassell, McGregor, Setzer, Martin, Taylor, Daniels, Reidelbach, Wagner, Trakas, Yuko, Reinhard, Carano, Law, Willamowski, C. Evans, Miller, Garrison, Peterson, Brinkman, Harwood, Hughes, Mason, Hoops, Schaffer, Perry, Kearns, Wagoner, Combs, Hood, Hagan, White, Key, Gilb, Coley, Buehrer, Oelslager, D. Evans, Bubp, Fende

·        Declares a moratorium until December 31, 2006, during which period public bodies are generally prohibited from using eminent domain to take private property that is without blight when the sole or a primary purpose for the taking is economic development that will ultimately result in ownership of that property being vested in another private person.

·        Prohibits the Ohio Public Works Commission from awarding or distributing any funding under a capital improvement program created under specified law to any public body that violates the prohibition described in the preceding dot point.

·        Creates the Legislative Task Force to Study Eminent Domain and Land Use Planning in the State consisting of 24 members; requires the Task Force to study the use of eminent domain and land use planning in the state, how the decision of the United States Supreme Court in Kelo v. City of New London, 125 S. Ct. 2655 (2005), affects state laws governing the use of eminent domain and land use in the state, and the overall impact of state laws governing the use of eminent domain and land use on economic development, residents, and local governments in Ohio; and requires the Task Force to submit a report to the General Assembly by not later than April 1, 2006, with recommendations concerning the use of eminent domain and the updating of laws governing land use.

·        Specifies that all meetings of the Task Force are to be public meetings open to the public at all times and that minutes of meetings are public records.

·        Requires the Task Force to give reasonable notice of its meetings and prohibits the Task Force from holding a meeting unless it gives at least 24 hours advance notification to news media organizations that request the notification.

·        Declares the General Assembly's statements of findings and intent.

·        Declares an emergency.

Prohibitions; moratorium

The bill prohibits, until December 31, 2006, any "public body" from using eminent domain to take private property that is without "blight" when the sole or a primary purpose for the taking is economic development that will ultimately result in ownership of that property being vested in another private person, except that this prohibition does not apply to the use of eminent domain for the taking of private property to be used in the construction, maintenance, or repair of roads or to be used by a common carrier or public utility.  This prohibition is notwithstanding any provision of the Revised Code to the contrary.  (Section 2(A).)  (See "Definitions," below, for definitions of the terms in quotation marks.)

The bill further prohibits the Ohio Public Works Commission from awarding or distributing any funding under a capital improvement program created under R.C. Chapter 164. to any public body that violates the prohibition described in the preceding paragraph (Section 2(B)).

Legislative Task Force to Study Eminent Domain and Land Use Planning in the State

Members and appointments

The bill creates the Legislative Task Force to Study Eminent Domain and Land Use Planning in the State to consist of the following 24 members (Section 3(A)):

(1)  Three members of the House of Representatives, with two members appointed by the Speaker of the House and one member appointed by the Minority Leader of the House.  The Speaker must designate one of the members the Speaker appoints to serve as co-chairperson of the Task Force.

(2)  Three members of the Senate, with two members appointed by the President of the Senate and one member appointed by the Minority Leader of the Senate.  The President of the Senate must designate one of the members the President appoints to serve as co-chairperson of the Task Force.

(3)  One member representing the home building industry in the state, appointed jointly by the Speaker of the House and the President of the Senate;

(4)  One member who must be a statewide advocate for intelligent land use in Ohio, appointed jointly by the Speaker of the House and the President of the Senate;

(5)  One member representing the agricultural industry in Ohio, appointed jointly by the Speaker of the House and the President of the Senate;

(6)  One member representing the commercial real estate industry in Ohio, appointed jointly by the Speaker of the House and the President of the Senate;

(7)  One member who must be an advocate for the use of parks and recreation, appointed jointly by the Speaker of the House and the President of the Senate;

(8)  One member representing the Ohio Prosecuting Attorneys Association or the Ohio Association of Probate Judges, appointed jointly by the Speaker of the House and the President of the Senate;

(9)  One member who must be an attorney who is knowledgeable on the issues confronting the Task Force and who represents persons who own property and who reside within Ohio, appointed jointly by the Speaker of the House and the President of the Senate;

(10)  One member knowledgeable on the issues confronting the Task Force who represents persons who own property and who reside within Ohio, appointed jointly by the Speaker of the House and the President of the Senate;

(11)  One member representing the planning industry in Ohio, one member representing an Ohio labor organization, one member representing a statewide historic preservation organization that works within commercial districts, one member representing municipal corporations, one member representing counties, and one member representing townships, each appointed by the Governor;

(12)  The Director of Development or the Director's designee;

(13)  The Director of Transportation or the Director's designee;

(14)  Two members who must be attorneys with expertise in eminent domain issues, each appointed by the Attorney General.

The appointments to the Task Force must be made not later than 30 days after the effective date of the bill.  Any vacancy in the membership of the Task Force must be filled in the same manner as the original appointment.  Members of the Task Force serve without compensation.  (Section 3(B).)

Duties; report; employees

The bill requires the Task Force to study each of the following (Section 3(C)(1)):

(1)  The use of eminent domain and land use planning in the state;

(2)  How the decision of the United States Supreme Court in the case of Kelo v. City of New London, 125 S. Ct. 2655 (2005) (see COMMENT 1) affects state laws governing the use of eminent domain and land use in the state;

(3)  The overall impact of state laws governing the use of eminent domain and land use on economic development, residents, and local governments in Ohio.

The Task Force must prepare and submit to the General Assembly by not later than April 1, 2006, a report that includes recommendations concerning the use of eminent domain and the updating of state laws governing land use.  On submission of its report and recommendations, the Task Force ceases to exist  (Section 3(C)(2).)

The bill requires the Legislative Service Commission to provide any technical, professional, and clerical employees that are necessary for the Task Force to perform its duties (Section 3(D)).

Meetings

The bill states that all meetings of the Task Force are declared to be public meetings open to the public at all times.  A member of the Task Force must be present in person at a meeting that is open to the public in order to be considered present or to vote at the meeting and for the purposes of determining whether a quorum is present.  The Task Force must promptly prepare and maintain the minutes of its meetings, which are public records under R.C. 149.43 (Public Records Law).  The Task Force must give reasonable notice of its meetings so that any person may determine the time and place of all scheduled meetings.  The Task Force is prohibited from holding a meeting unless it gives at least 24 hours advance notification to the news media organizations that have requested such notification.  (Section 3(E).)

Statement of findings and intent

The bill states that the General Assembly makes the following statements and intent (Section 4).

(1)  On June 23, 2005, the United States Supreme Court decided the case of Kelo v. City of New London, supra, which allows the taking of private property that is without blight by eminent domain for the purpose of economic development even when the ultimate result of the taking is ownership of the property being vested in another private person.  As a result of this decision, the General Assembly believes the interpretation and use of the state's eminent domain laws could be expanded to allow the taking of private property that is without blight 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, which protect the rights of Ohio citizens to maintain property as inviolate, subservient only to the public welfare.  (See COMMENT 2.)  Thus, the General Assembly finds it is necessary to enact a moratorium on any takings of this nature by any public body until further legislative remedies may be considered.

(2)  The General Assembly finds that it is a matter of statewide concern to enact the moratorium.  The moratorium is necessary to protect the general welfare and the right of citizens under Sections 1 and 19 of Article I, Ohio Constitution, and to ensure that this right is not violated due to the Kelo decision.  In enacting this provision, the General Assembly wishes to ensure uniformity throughout the state.

Definitions

The bill defines the following terms (Section 1):

"Blight" includes the same conditions described in the definition of "blighted area" under R.C. 303.26 (see COMMENT 3), but also includes these conditions when they occur in a municipal corporation.

"Public body" means any county, municipal corporation, township, commission, district, authority, or other political subdivision of the state that has the power to take private property by eminent domain.

Emergency clause

The bill states that it is an emergency measure necessary for the immediate preservation of the public peace, health, and safety.

1.  In the Kelo case, the syllabus[1] summarizes the case as follows (at pp. 2656-2658):

After approving an integrated development plan designed to revitalize its ailing economy, respondent city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the "public use" restriction in the Fifth Amendment's Takings Clause. The trial court granted a permanent restraining order prohibiting the taking of the some of the properties, but denying relief as to others. Relying on cases such as Hawaii Housing Authority v. Midkiff, 467 U.S. 229, . . ., and Berman v. Parker, 348 U.S. 26, . . ., the Connecticut Supreme Court affirmed in part and reversed in part, upholding all of the proposed takings.

Held: The city's proposed disposition of petitioners' property qualifies as a "public use" within the meaning of the Takings Clause.  . . . .

(a) Though the city could not take petitioners' land simply to confer a private benefit on a particular private party, . . . the takings at issue here would be executed pursuant to a carefully considered development plan, which was not adopted "to benefit a particular class of identifiable individuals," . . . . Moreover, while the city is not planning to open the condemned land--at least not in its entirety-- to use by the general public, this "Court long ago rejected any literal requirement that condemned property be put into use for the . . . public." . . . . Rather, it has embraced the broader and more natural interpretation of public use as "public purpose." . . . . Without exception, the Court has defined that concept broadly, reflecting its longstanding policy of deference to legislative judgments as to what public needs justify the use of the takings power. . . .

(b) The city's determination that the area at issue was sufficiently distressed to justify a program of economic rejuvenation is entitled to deference. The city has carefully formulated a development plan that it believes will provide appreciable benefits to the community, including, but not limited to, new jobs and increased tax revenue. As with other exercises in urban planning and development, the city is trying to coordinate a variety of commercial, residential, and recreational land uses, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the city has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the plan's comprehensive character, the thorough deliberation that preceded its adoption, and the limited scope of this Court's review in such cases, it is appropriate here, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the Fifth Amendment. . . .

(c) Petitioners' proposal that the Court adopt a newbright-line rule that economic development does not qualify as a public use is supported by neither precedent nor logic. Promoting economic development is a traditional and long accepted governmental function, and there is no principled way of distinguishing it from the other public purposes the Court has recognized. . . . Also rejected is petitioners' argument that for takings of this kind the Court should require a "reasonable certainty" that the expected public benefits will actually accrue. Such a rule would represent an even greater departure from the Court's precedent. . . . The disadvantages of a heightened form of review are especially pronounced in this type of case, where orderly implementation of a comprehensive plan requires all interested parties' legal rights to be established before . . . new construction can commence. The Court declines to second-guess the wisdom of the means the city has selected to effectuate its plan. . . .

            (Citations and page references omitted.)

2.  Section 1 of Article I, Ohio Constitution, provides as follows:

All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.

    Section 19 of Article I, Ohio Constitution, provides as follows:

Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public, without charge, a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.

3.  R.C. 303.26, not in the bill, provides as follows:

(E) "Blighted area" means an area within a county but outside the corporate limits of any municipality, which area by reason of the presence of a substantial number of slum, deteriorated, or deteriorating structures, predominance of defective or inadequate street layout, faulty lot layout in relation to size, adequacy, accessibility, or usefulness, insanitary or unsafe conditions, deterioration of site or other improvements, diversity of ownership, tax or special assessment delinquency exceeding the fair value of the land, defective or unusual conditions to title, or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, substantially impairs or arrests the sound growth of a county, retards the provision of housing accommodations, or constitutes an economic or social liability and is a menace to the public health, safety, morals, or welfare in its present condition and use.

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