Sunday, October 25, 2015

Ohio city uses eminent domain to seize land outside its borders

Posted by Maggie Thurber @ Ohio Watchdog / October 21, 2015 / 17 Comments

LAND GRAB: Perrysburg City Councilman Todd Grayson says ‘it’s cheaper’ isn’t a good reason to seize private property.

Fort Meigs Road in Perrysburg, Ohio, is too narrow and needs widening, as almost all would agree.

But homeowners along the road don’t agree with how it should be widened, nor do they agree with the “quick take” eminent domain process the city used to claim people’s front yards.

What these residents find even harder to stomach is the fact their homes aren’t even in Perrysburg but rather in Middleton Township.

Ohio law defines the process in eminent domain cases, which mirrors a traditional civil court case with a jury decision.

But if the public project is “making or repairing” a road, the government can take possession of the disputed property immediately upon filing for eminent domain — even before the case undergoes the normal court process — through a quick-take.

But the Fort Meigs plan also calls for an extra-wide multi-use path or sidewalk, which isn’t covered under the quick-take process, homeowners say.

“The Ohio constitution says local government can use ‘quick-take’ to make or repair roads,” said Maurice Thompson, attorney for the homeowners. “The scope of this project is definitely beyond that.”


Thompson, executive director of the 1851 Center for Constitutional Law, said the land grab has two major problems.

First, Perrysburg lacks authority to seize property in Middleton Township. But even if it did because it’s a road project, it can’t take land for sidewalks. Further, Perrysburg has no authority to use the quick-take process in Middleton Township, and, regardless, quick-take doesn’t apply to sidewalks — either inside or outside the city limits.

“They can’t take land in the township for any reason,” Thompson said, “but particularly for amenities like a sidewalk and bike path,” citing several court cases in which quick-takes for drainage ditches and sewer lines were ruled illegal.

This week, the court granted a temporary order saying the city couldn’t take immediate possession of the properties or begin construction until certain other issues are determined.

But the land grab isn’t the only issue.

Homeowners wonder why the widening project is limited to their side of the street; the other side contains a man-made drainage ditch and farm land.

Todd Grayson, the lone Perrysburg City Council member to vote against the eminent domain proceedings, said it boils down to cost.

“There’s no debate about whether or not the road needs to be widened,” he said. “The question is: Do you pay a million dollars more to expand on the ditch/farm field side or do you go to the property owners’ side and expand on their property?”
Photo credit Google Maps
Photo credit Google Maps
FORT MEIGS ROAD: Homeowners are questioning why
the widening of Fort Meigs Road is encroaching all on their
side of the street, rather than into a drainage ditch on the west side.

The estimated project cost is $2.4 million, but it increases to around $3.4 million if the ditch side is widened.

“If you go the ditch side, you have to move the ditch and that involves the Corps of Engineers and Ohio EPA,” Grayson said. “But instead of moving the ditch, we’re going to be hacking up the front yards, moving traffic closer to the front door and tearing down the old trees” on the homeowner side.

“If it were exactly the same dollar amount to move that ditch, we’d be doing it,” Grayson said.

“We know across the street makes more sense for everybody, but that million-dollar price tag is too much for some,” he added. “We know what the right thing to do is. The city and (the Ohio Department of Transportation) are just choosing not to do it.

“And I disagree,” Grayson said. “When your justification is ‘it’s cheaper,’ that’s not a legal reason for taking people’s property.”

ODOT’s only role, says Mike Gramza, ODOT District 2 administrator, is to make sure all federal requirements are followed; 80 percent of the funding is from the federal government. Perrysburg is handling all design work and paying the 20 percent local match.

Grayson said moving the ditch makes sense now and in the future.

 “It wouldn’t shock me at all if in 20 years there are houses across the street and we’ll have to take part of their front yard in order to further widen the street,” he said. “So why not do it now when there are no houses in play and it’s a just a ditch and a cornfield?”

“The point is, this is doable,” Grayson said. “But we’re choosing not to do it because of money, the OEPA and the Corps of Engineers. Which begs the question: Why do we need the EPA involved in moving a man-made run-off ditch 15 feet? We’re going to start with a ditch and end with a ditch. I can understand if you’re impacting a natural stream, but this is a man-made drainage ditch on a cornfield in Ohio.”

He said Matthew Beredo, the city attorney when the project began, downplayed the potential legal opposition from homeowners, calling eminent domain a “slam dunk” that wouldn’t cost much to defend. Those costs weren’t factored into the financial comparison. But Beredo resigned in April and Karlene Henderson, the new city attorney, has yet to update council on the case.

Grayson hopes the wrangling over eminent domain authority will delay the project long enough for the new council to take office in January.

“Maybe we’ll have the time to find out that it’s worth a little extra money to move the expansion to the other side of the road,” he said.
  

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