126th General Assembly
(As Introduced)
BILL SUMMARY
· Establishes a moratorium, until December 31, 2006, on the use of eminent domain to take private property that is located outside a blighted area for the primary purpose of economic development that will ultimately vest ownership in a private person other than the original owner.
· Creates the Legislative Task Force to Study Eminent Domain and Its Impact on Land Use Planning in the State.
· Declares an emergency.
CONTENT AND OPERATION
In deciding whether the city's development plan served a "public purpose," the Court noted that the sole purpose of a taking cannot be to give or sell the property to private development. The Court also stated that it would be unconstitutional to take property from one private party to give it to another private party under the pretext of a public purpose when the actual purpose was to bestow a private benefit. The Court recognized the possibility for private profit, noting that the government's pursuit of a public purpose will often benefit individual private parties. Under the facts in issue, the Court decided the taking was for a public purpose and, therefore, was constitutional. It also noted that courts should give deference to a government's decision about what constitutes a public benefit.
The bill responds to policy concerns that the Kelo case may authorize the taking of private property that is not located in a blighted area for economic development purposes that ultimately vest ownership of the property in another private person "in violation of Sections 1 and 19 of Article I, Ohio Constitution" (Sections 4 and 5).
The bill generally establishes a moratorium, until December 31, 2006, on the use of eminent domain by any entity of the state government or any political subdivision of the state. The moratorium applies to property that is not located in a blighted area as determined by the public body, that is taken without the owner's consent, and that is taken for the primary purpose of economic development that will ultimately result in ownership being vested in a private person other than the original owner (Sections 1 and 2).[1] The moratorium does not apply to the use of eminent domain to take private property to be used as follows (Section 2(A)):
· In the construction, maintenance, or repair of roads.
· For a public utility purpose.
· By a common carrier.
The bill provides that if a public body uses eminent domain to take private property subject to the moratorium, before December 31, 2006, all of the following apply (Section 2(B)):
(1) No funding can be awarded or distributed by the Ohio Public Works Commission to the public body under a capital improvement program created under the Aid to Local Governments Improvement Law (Chapter 164. of the Revised Code).
(2) No funding can be awarded or distributed by the Department of Development to the public body under a shovel ready sites program created by state law (R.C. 122.083--not in the bill);
(3) No funding can be received by the public body in any act that appropriates funds for capital purposes.
The bill creates the Legislative Task Force to Study Eminent Domain and Its Impact on Land Use Planning in the State (Section 3(A)). The Task Force, consisting of 25 members, must study each of the following (Section 3(C)(1)):
(1) The use of eminent domain and its impact on land use planning in the state;
(2) How the Kelo decision affects state law governing the use of eminent domain and the law's impact on land use in the state;
(3) The overall impact of state law governing the use of eminent domain on land use, economic development, residents, and local governments in Ohio.
The bill requires the Task Force to prepare and submit a report to the General Assembly by April 1, 2006. The report must include the findings of the study and recommendations concerning the use of eminent domain and necessary updates to state land use laws impacted by eminent domain. The Task Force ceases to exist upon submission of the report. (Section 3(C)(2).)
The 25 member Task Force will consist of the following members (Section 3(A)):
· Three members of the House of Representatives, with two members appointed by the House Speaker and one member appointed by the House Minority Leader. The Speaker must designate one of the members the Speaker appoints to serve as a Task Force co-chairperson.
· Three members of the Senate, with two members appointed by the Senate President and one member appointed by the Senate Minority Leader. The Senate President must designate one of the members the President appoints to serve as a Task Force co-chairperson.
· One member representing the home building industry in the state, appointed jointly by the House Speaker and the Senate President;
· One member who is a statewide advocate for intelligent land use in the state, appointed jointly by the House Speaker and the Senate President;
· One member representing the agricultural industry in the state, appointed jointly by the House Speaker and the Senate President;
· One member representing the commercial real estate industry in the state, appointed jointly by the House Speaker and the Senate President;
· One member representing licensed realtors in the state, appointed jointly by the House Speaker and the Senate President;
· One member who is an advocate for the use of parks and recreation, appointed jointly by the House Speaker and the Senate President;
· One member representing the Ohio Prosecuting Attorneys Association or the Ohio Association of Probate Judges, appointed jointly by the House Speaker and the Senate President;
· One member who is an attorney who is knowledgeable on the issues confronting the Task Force and represents persons who own property and reside within Ohio, appointed jointly by the House Speaker and the Senate President;
· One member who is knowledgeable on the issues confronting the Task Force and who represents persons who own property and reside within Ohio, appointed jointly by the House Speaker and the Senate President;
· One member representing the planning industry in the state, 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;
· The Director of Development or the Director's designee;
· The Director of Transportation or the Director's designee;
· Two members who are attorneys with expertise in eminent domain issues, each appointed by the Attorney General.
Appointments must be made within 30 days after the bill's effective date. And, vacancies must be filled in the same manner as original appointments. The Task Force's members will serve without compensation. (Section 3(B).)
The Legislative Service Commission is required to provide any necessary technical, professional, and clerical employees for the Task Force. All Task Force meetings are public meetings open to the public at all times. (Section 3(D) and (E).)
The bill sets forth statements of findings and intent, including the General Assembly's belief that, as a result of the Kelo decision, the interpretation and use of the state's eminent domain law could be expanded to allow the taking of private property that is not blighted by eminent domain for economic development purposes and ultimately the vesting of the property's ownership in a different private person "in violation of Sections 1 and 19 of Article I" of the Ohio Constitution. Those sections protect the rights of Ohio citizens to maintain property as inviolate, subservient only to the public welfare. Accordingly, the bill declares that the General Assembly finds it necessary to enact a moratorium on these types of takings by any public body until further legislative remedies may be considered. (Section 4(A).)
Additionally, the bill states that the General Assembly (1) finds it a matter of statewide concern (see comment) to enact the moratorium to protect the general welfare and rights of citizens under Sections 1 and 19 of Article I and to ensure that these rights are not violated as a result of the Kelo decision and (2) wishes to ensure uniformity throughout the state (Section 4(B)).
COMMENT
In Ohio, municipal corporations have "home rule" authority granted by the Ohio Constitution that includes eminent domain authority to take property within their borders; they also have constitutional authority to take property within or outside their borders for public utility purposes. Article XVIII, Sections 3 and 4, Ohio Constitution. The General Assembly generally may not interfere with a municipal corporation's home rule authority to exercise matters of local self-government unless the state's action is held to be a matter of statewide concern.
HISTORY
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ACTION |
DATE |
JOURNAL ENTRY |
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Introduced |
08-03-05 |
p. 1382 |
s0167-i-126.doc/kl
[1] A "blighted area" essentially means an area within a county or a municipal corporation that, by reason 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, unsanitary 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 that 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 or municipal corporation, 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. (Section 1(A) of the bill and R.C. 303.26--not in the bill.)