Debate 11/6

Eminent domain comes to Austin Road

If Isaac Austin were alive today he might not be too pleased with Montgomery County officials. The namesake of Austin Road died in 1869.  His original farm was located between Yankee Road and Springboro Pike along what is known today as Austin Road. That corner of Montgomery County has become a hotbed of development and some of the plans have local residents who live along Austin Road very unhappy.

A $5 million road plan to widen and extend a bike path in southern Montgomery County along Austin Boulevard may be forced to use eminent domain law. The bike trail extension included in the plan to widen a 0.4 mile section of the road east of the new Interstate 75 interchange would pass within eight feet of one 150-year-old farmhouse, built by farmer Isaac Austin. The road-widening and extension of the 10-foot path are part of $65 million in road and trail projects planned around the new interchange at Interstate 75. The Austin Road residents, many whose homes already sit close to the road, are about to get a lot closer view of the street.

The county has offered the landowners financial compensation for the land in front of the houses involved and a temporary easement. The homeowners argue that the county is undervaluing the land designated for the taking. Their point is that once the road is widened and becomes only a matter of a few feet from their homes, the resale value of the homes is substantially affected. While the county is offering to pay for the strip of land that they will be taking, land owners argue that it will not adequately compensate them for the lost value in their homes.

Eminent domain is the power to take private property for public use by a state, municipality or private entity authorized to exercise functions of public character. It requires the payment of just compensation to the property owner. The property is taken either for government use or by delegation to third parties who will devote it to public or civic use or, in some cases, economic development.

The power of governments to take private or personal property has always existed in the United States, being an inherent power of the state. The Fifth Amendment imposes limitations on the exercise of eminent domain: the taking must be for public use and just compensation must be paid.

The Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005) affirmed the authority of New London, Conn., to take non-blighted private property by eminent domain and then transfer it for a dollar a year to a private developer solely for the purpose of increasing municipal revenues. This 5-4 decision was widely criticized as pushing the power of eminent domain to an extreme.

American courts have held that the preferred measure of “just compensation” is “fair market value,” i.e., the price that a willing but unpressured buyer would pay a willing but unpressured seller for the subject property under ordinary circumstances, with both parties fully informed of the property’s good and bad features. In the matter regarding Austin Road, the land owners have taken the position that Montgomery County has failed to value the true “market value” of the property being taken. Also, this approach takes into account the property’s highest and best use (i.e., its most profitable use) which is not necessarily its current use or the use mandated by current zoning if there is a reasonable probability of zone change. The matter is now headed for court as Montgomery County looks to move this project along with or without the consent of the land owners.

Forum Question of the Week:

Should Montgomery County be allowed to use eminent domain to take property from land owners in order to widen Austin Road and to connect a bike trail to the new retail center being developed at Austin Landing?


The Socratic peloton

By Ben Tomkins

In many ways, I don’t even know how to write this thing. I live in Colorado and bike paths just aren’t the same discussion as they are in other places. People in Colorado are crazy, and if the city of Denver told someone they were going to put in a brand new bike path within 8 feet of their front door – and they were actually going to get paid for it – they would probably drop to their knees and begin sobbing and thanking whatever nature spirit they currently pray to as part of their gluten-free, no-refined-sugar spiritual connection with their throat chakra and then spend that money on a $6000 Lance Armstrong Trek , Schwinn and matching Vitamin Cottage racing jerseys so they and fifteen friends can fulfill their lives’ dream of ruining the new road’s traffic patterns by arrogantly slogging their peloton of selfish entitlement down the center lane at fifteen miles per hour so people will think they are hardcore.

Sorry, but these people piss me off and it was a reasonable limp into the conversation. Leave me alone. All I ask is that I be able to go where I’m going without having the primary traffic arteries clogged by the delusional cholesterol of idiots who believe that 90 percent of being a professional cyclist is coordinating your spandex.

So, in that regard, I totally understand why the residents who will have this bike path imposed upon their property are super pissed and want it stopped. The noise of people dressed like, why don‘t we say Bradley Wiggins, flying past their house screaming “on your left” in order to avoid killing the power walking, “I-just-worked-out-but-still-look-trendy” mommies marching selfishly and obliviously side-by-side down middle of the path with matching SUV-sized strollers, and inanely babbling at 500 decibels about how great Christ is for giving their husband a job that allows them to phone in the rest of their life, would be completely unbearable. And should one actually hear the content of one of these conversations, the subsequent psychiatry bills would force one to sell their house anyway.

Look, the reason I’m kind of making a laugh out of this whole thing is because it’s about the best I can do to make a silk purse out of the sow’s ear of civic development. I feel terribly for the families who will be affected by the encroachment of the new road and bike path. It sucks that the city planning has resulted in a situation where the larger public good, whatever that means, has fallen on the backs of those living in that 0.4 mile section of Austin Road.

I will say that it’s a bit hard for me to relate given that a bike path within eight feet of my front door would probably increase my property values, but nonetheless I understand that it appears that it will decrease theirs and adversely affect their experience on their property. Also, $23,000 and some change seems a bit low, especially given the apocalyptic construction noise that will inevitably be going on next to their bedroom window. It seems reasonable to me, given the unavoidable reality of the property seizure, that the city of Dayton should perhaps just buy their house outright so they can leave.

But what are you going to do? We all choose to live in a society where there is such a thing as eminent domain and a larger public good. That’s what a society is: partial submission to a larger public good. If given the choice between living in society or being on my own, I’d take society and things like eminent domain that come with it. Of course, it’s different when it’s your house, and I thoroughly sympathize. Truly. However, in the instances in my life where I’ve had the needs of the state impinge upon my private life, I take some solace in the words of Socrates in his response to Crito’s exhortations that he flee from Athens and thereby save his own life. Socrates refuses this offer, saying that if Athens has:

“nurtured and educated you, and given you and every other citizen a share in every good that we had to give, we further proclaim and give the right to every Athenian, that if he does not like us when he has come of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him; and none of us laws will forbid him or interfere with him. Any of you who does not like us and the city, and who wants to go to a colony or to any other city, may go where he likes, and take his goods with him. But he who has experience of the manner in which we order justice and administer the State, and still remains, has entered into an implied contract that he will do as we command him.”

For me, that’s the whole thing in a nutshell. Eminent domain is not just an unpleasantry of society, it’s an axiom. It will and must occur. When and where are debatable, and the residents of Austin Road are taking it up in the appropriate civic forums. That’s our society, and it’s the best, only system we have for determining what’s “right.”

Benjamin Tompkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue.

Reach Ben Tompkins at

Eminent domain should be used sparingly

By Rob Scott

The ownership of property is one of our greatest rights in the United States. President Calvin Coolidge said “… property rights and personal rights are the same thing.”

The power of governments to take that private property has always existed in the U.S. This power rests with the legislative branch of the government and may not be exercised unless the legislature has authorized its use by statutes that specify who may use it and for what purposes.

However, the legislature may delegate the power to private entities like public utilities or railroads, and even to individuals for the purpose of acquiring access to their landlocked land. Its use was limited by the Takings Clause in the Fifth Amendment to the U.S. Constitution in 1791, which reads, “… nor shall private property be taken for public use, without just compensation.” The Fifth Amendment limited eminent domain specifically to public use.

The U.S. Supreme Court has deferred to the right of states to make their own determinations of public use. Additionally, the court has held that the preferred measure of “just compensation” is “fair market value.”

In Ohio, the Ohio Supreme Court issued a landmark decision in City of Norwood v. Horney, on July 26, 2006, reframing the standards for the exercise of eminent domain powers in Ohio. The Ohio Supreme Court, in a unanimous decision, held it violated Ohio’s constitution to take property solely to achieve economic benefits.

In response, the Ohio General Assembly crafted Ohio Senate Bill 7, which laid out guidelines for municipalities on the utilization of eminent domain. The law stated that eminent domain is a matter of statewide importance and declared their intention that the law be construed to apply generally throughout Ohio.

The law declares that “public use” does not include any taking that is for conveyance to a private commercial enterprise, economic development or solely for the purpose of increasing public revenue unless the property is conveyed to: (1) a public utility, common carrier or municipal power agency; (2) a private entity that occupies a port authority transportation facility or an incidental area within a publicly owned and occupied project; or (3) a private entity when the agency that takes the property establishes, by a preponderance of the evidence, that the property is a blighted parcel or is in a blighted area. In addition, the bill prohibits any taking of real property by an agency unless it establishes, by preponderance of the evidence, that the taking is necessary and for a public use.

The law also establishes a series of procedural changes, designed to afford property owners more protection. These procedures have the potential to make eminent domain actions more costly and time consuming for the appropriating authority. For example:

Either a property owner or an agency may request that the issue of the value of the property be submitted to nonbinding mediation. The agency must pay the cost of the mediation. A property owner has a right to an immediate appeal if a court order is in favor of the appropriating agency. The owner of property appropriated by an agency is granted the right to repurchase the property if the agency decides not to use the property for the purpose stated in the appropriation petition unless the right is extinguished for specified reasons. Also, the property owner can receive attorney and appraisal fees through the process.

Locally, eminent domain has typically only been imposed in the more severe needs. An example would be when major highways have been constructed. When Interstate 75 was built, there were numerous properties that needed to be purchased from private landowners in order to build such a massive highway through downtown Dayton.

Recently, eminent domain is viewed as a way government can get their way without providing “just compensation” to the property owner or any procedural protections on property rights. Though the Austin Road area has been a hotbed for development and business relocating to the area, is having a bike trail absolutely necessary for success?

Could there possibly be an alternative plan crafted rather than using a tool that government should rarely use? Additionally, will the bike trail really be used that often to justify a $5 million expenditure and the taking of private property? Is bike ridership in the Dayton region specifically that high in the few months that bikes can be ridden in our area?

Not only should the use of eminent domain for a bike trail be questioned, and I cannot find any example in Ohio where this process was used for a bike trail, but also the amount to be spent on such a project.

Ultimately, the argument is whether a bike trail is truly a “public use” under the law. And the bike trail is so tied to an economic development, is that the true purpose to this “public use”? If you follow the law in Ohio and combine that with the typical bike ridership, the use of eminent domain cannot be justified for the Austin Road development under the current facts.

Just because government can do something, does not always mean it should.

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is the Chairman of the Montgomery County Republican Party and the founder of the Dayton Tea Party. He can be contacted at or

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