Eminent Domain
  1. The Constitutional Provisions
    1. The United States Constitution, Fifth Amendment “. . . nor shall private property be taken for public use, without just compensation.”
    2. The Ohio Constitution, Article 1 §19 “Private property shall ever be held inviolate, but subservient to the public welfare.”
  2. The Key Federal Cases
    1. Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98 (1954). The Acquisition of an unblighted department store in Washington, D.C. Urban Renewal area.
    2. Hawaii Housing Authority v. MidKiff, 467 U.S. 229, 104 S.Ct. 2321 (1984). Breaking up the oligopoly of private land ownership in Hawaii.
    3. Kelo v. City of New London, 545 U.S. 469, 125 S.Ct. 2655 (2005). The case that created the fire storm.
  3. III. The Key State of Ohio Cases
    1. State, ex rel. Bruestle v. Rich, 159 Ohio St. 13, 110 N.E.2d. 778 (1953). Historical note. The Cincinnati City Solicitor’s Office represented both sides.
    2. Norwood v. Horney, 110 O.S.3d 353, 2006.
      1. 1st State Supreme Court decision after Kelo.
      2. Property rights important.
        1. Economic benefit alone is sufficient to meet public use requirement.
        2. “Deteriorating” is void for vagueness and offends due process rights in that it fails to give adequate notice and engages in speculation regarding a future event.
        3. Questions “diversity of ownership” as a standard in defining blight.
  4. IV. Other Ohio Constitutional Provisions Defining Public Interest and Public Purpose
    1. Article VIII §13 “to create or preserve jobs and employment opportunities, to improve the economic welfare of the people of the state. . . it is hereby determined to be in the public interest and a proper public purpose for the state or its political subdivisions. . . to acquire . . . property. . . for industry, commerce, distribution and research. . . .” (guaranteed loans for industrial development).
    2. Article VIII §16 “to enhance the availability of adequate housing in the state and to improve the economic and general well-being of the people of the state, it is determined to be in the public interest and a proper public purpose for the state or its political subdivisions. . . [to assist in the development of housing]. . . by the acquisition of real property. . . “
    3. Article VIII §2(b) (approved by the voters of Ohio in November 2005) “. . . the purposes referred to in this division are proper public purposes. . . and are necessary and appropriate means to create jobs and enhance employment and education opportunities; to improve the quality of life and the general economic well-being of all the people in all areas of this state. . . [including] (D)(3) development of sites and facilities for and in support of industry, commerce, distribution, and research and development purposes includes acquisition of real estate and interest in real estate. . .”
  5. V. Post Kelo Legislation Changes to R.C. Chapter 163
    1. Uniform definition of terms:
      1. “blighted,” “deteriorated”
    2. Can’t do it simply because there is a better use. C. Can’t make blight finding by emergency.
    3. No burden of proof on value.
    4. Additional benefits:
      1. $10,000 for moving
      2. $2,500 to find new site
    5. Procedural protections
      1. must provide appraisal
    6. Fees
      1. if no justification
      2. if award above 125%/150% of offer, but only in limited circumstances
  6. VI. Regulatory Takings
    1. Writ of Mandamus to force eminent domain
      1. Hilltop Basic Resources v. Cincinnati,
        886 N.E.2d 839, 118 Ohio St.3d 131 (2008)
    2. State ex rel. Gilbert v. Cincinnati, 928 N.E.2d 207, 125 Ohio St.3d 385 (2010).
  7. VII. Litigation
    1. Types
      1. Quick Take
    2. Regular
      1. Challenge to right to take tried to judge
      2. Norwood v. Horney – no public purpose.
      3. Clinton Field – can’t complete, no funding for project.
      4. Columbus v. Village of Lockbourne – no plans.
    3. Valuation – tried to jury
      1. View.
      2. Photos.
      3. Appraiser(s).
      4. Other “expert.”
      5. Owner.
    4. Division of Award – tried to judge.
      1. Mortgage holder.
      2. Tenants.
7 part video, duration of 01:00:42.
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Timothy M. Burke

Timothy M. Burke

Much of Timothy M. Burke's practice is devoted to local government law and the government decision-making process.  His background prepared him for that.  He spent four years in Cincinnati City Hall as Legislative Assistant to then Council member Jerry Springer (yes, that Jerry Springer), served as Executive Director of Little Miami, Inc., a non-profit corporation dedicated to the preservation of the Little Miami River, a state and national scenic river, and twice served on the staff of Congressman Tom Luken.  Today, 60% of his practice involves representing governmental entities, representing clients in front of governmental decision-making bodies, or litigation for or against governmental entities.  He has served as Law Director for one of Cincinnati's suburbs, Lockland, for almost 30 years and has also served as Law Director for another suburb, the Village of Evendale for eight years.  He has frequently served as Special Counsel to numerous other local governments and often is asked to speak on topics including municipal law, land use and zoning, eminent domain, civil rights and elections law.  He has also served as Special Counsel to the Attorney General of Ohio.


Timothy M. Burke, Esq.

Manley Burke, LPA

225 West Court Street

Cincinnati, OH 45202

Tel: 513-721-5525