Eminent Domain?

From The Patriot Post:

Founders' Quote Daily

"The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If `Thou shalt not covet' and `Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free."

-- John Adams (A Defense of the American Constitutions, 1787)

I thought this quote particularly timely in light of Toledo Mayor Carty Finkbeiner's comments in this Blade article.

For years, politicians have been promising to do something about the failing Southwyck Mall - despite the fact that the owners of the mall have expressed little or no interest in doing so. Upon Finkbeiner's election, he brought in local developer Larry Dillin and, together, they've made numerous announcements about renovations, redevelopment, etc. However, neither the city nor Dillin have any ownership in the property.

"Plans to redevelop the aging Southwyck mall as a mixed-use Village at Southwyck have been stuck in park with the refusal of mall part-owner Bill Dillard to either sell his share or join a redevelopment effort with Perrysburg real-estate developer Larry Dillin.

Mr. Finkbeiner said the possibility of using the city's eminent domain power to take control of the mall has not been ruled out. He said he intends to give the current owners 30 days to consider Mr. Dillin's proposal before taking any action."

I realize that the U.S. Supreme Court has said that a community may take private property from one owner and transfer it to another private owner if the benefit to the community is greater. However the Ohio Supreme Court, in a 2006 unanimous decision, ruled:

"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 justify the taking of the property under a provision of the Ohio Constitution that requires eminent domain be for “public-use” (Section 19, Article I)."

The area doesn't currently qualify as blighted. And if the city wants to say that the area is 'deteriorating' in order to justify the taking, the Supreme Court weighed in with this:

"The use of the term “deteriorating area” as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking."

Carty's used to ignoring the laws (see story on 'Prior Restraint?') but this time he's not dealing with a bunch of college students. He's dealing with a national corporation with the resources to defend what is rightfully theirs and not be intimidated by the political posturing of a local city mayor.

Aside from the terrible message this action sends to business owners in Toledo (if we don't like what you're doing with your company, we'll turn it over to someone who we think has a 'better' idea), I don't believe that Carty can legally force the owners to kowtow to his wishes. And what happens if and when the Southwyck Mall owners say 'no thanks' to Dillin's offer? Will Carty, ever the one to fight defiance of his ideas, invest city resources to take them to court?

Because of the shaky legal footing regarding eminent domain, setting a 30-day deadline to 'finish negotiations' places Carty and the city in the wrong position. However, this appears to be what we've come to expect from our mayor.