The Ohio and U.S. Constitutions require that the power of eminent domain can only be exercised when necessary for a public use.
In the 2005 case of Kelo v. City of New London, the U.S. Supreme Court took an expansive view of the public use requirement, holding that economic development to generate additional tax revenue, create new jobs, and jump start local economies was sufficient. Many proponents of private property rights were outraged by the Kelo decision, and state courts and legislatures across the country—Ohio included—quickly adopted more restrictive views of the public use requirement under their state constitutions.
In 2006, the Ohio Supreme Court held in Norwood v. Horney “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...” At the same time, however, the Norwood Court clarified that “economic benefit can be considered as a factor among others in determining whether there is a sufficient public use and benefit in a taking, [but] it cannot serve as the sole basis for finding such benefit.”
Since Norwood was decided, lower Ohio courts have grappled with the contours of the public use requirement. In a recent decision, an Ohio appellate court affirmed the Muskingum County Convention Facilities Authority’s (CFA) use of eminent domain to acquire billboard easements as part of a downtown revitalization project in Zanesville.
The dispute arose after the CFA initiated condemnation proceedings to appropriate easements held by Barnes Advertising Corporation. These easements permitted Barnes to maintain two billboards on property owned by the CFA, which is developing a “gateway district” to enhance public access to local amenities, including farmers markets, community events, and nonprofit programming.
After failing to reach a voluntary agreement with Barnes in late 2023, the CFA filed a petition for appropriation under Ohio’s eminent domain laws. Following a bench trial, the trial court concluded that the CFA’s proposed use was both necessary and served a valid public purpose. Barnes appealed, challenging the sufficiency of the CFA’s petition and the public-use justification for the takings.
On appeal, the court rejected both arguments:
- Petition Validity: The court held that the CFA’s petition satisfied statutory requirements by stating the purpose of the appropriation and referencing the statutory definition of a “facility” under R.C. 351.01(D). No detailed architectural plans or renderings were required at the petition stage.
- Public Use and Necessity: The court found that the CFA had finalized construction plans, secured funding, and was prepared to proceed with the project once the easements were acquired. The evidence showed the billboards’ removal was necessary to build the pavilions, which will serve various public functions, such as hosting farmers markets in a recognized “food desert” and supporting local nonprofit events. While the project may incidentally support tourism and economic development, the court determined that the CFA had shown a predominant public use under Ohio law.
Importantly, the court reaffirmed that public use must be evaluated independently by the judiciary and is not automatically satisfied by legislative or agency declarations. However, the CFA’s board resolution created a rebuttable presumption of necessity, which Barnes failed to overcome at trial.
Key Takeaway: This case underscores that political subdivisions in Ohio, including convention facilities authorities, must meet evidentiary requirements when seeking to appropriate private property. Courts will uphold takings where public use and necessity are demonstrated — even when projects may also generate economic benefits — provided the primary purpose is not solely revenue-driven.
Property owners facing appropriation efforts should be aware of their rights and the burden on government entities to justify takings. Agencies pursuing redevelopment projects should ensure that plans are sufficiently advanced and well-documented before initiating eminent domain proceedings.
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