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Full Opinion
{¶ 1} In case Nos. 2005-1210 and 2005-1211, we decide the constitutionality of a municipalityâs taking of an individualâs property by eminent domain and transferring the property to a private entity for redevelopment. In doing so, we must balance two competing interests of great import in American democracy: the individualâs rights in the possession and security of property and the sovereignâs power to take private property for the benefit of the community.
{¶ 2} In case Nos. 2005-0227 and 2005-0228, we determine the constitutionality of the provision in R.C. 163.19 prohibiting a court from enjoining the taking and using of property appropriated by the government and transferred to a private party for redevelopment, after the compensation for the property has been deposited with the court but prior to appellate review of the taking.
{¶ 3} Our consideration does not take place in a vacuum. We recognize that eminent domain engenders great debate.
{¶ 4} Appropriation cases often represent more than a battle over a plot of cold sod in a farmland pasture or the plat of municipal land on which a building sits. For the individual property owner, the appropriation is not simply the seizure of a house. It is the taking of a home â the place where ancestors toiled, where families were raised, where memories were made. Fittingly, appropriations are scrutinized by the people and debated in their institutions.
{¶ 5} In reviewing an appropriation similar to that at issue here, a sharply divided United States Supreme Court recently upheld the taking over a federal Fifth Amendment challenge mounted by individual property owners. Kelo v. New London (2005), 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439. Although it determined that the Federal Constitution did not prohibit the takings, the court acknowledged that property owners might find redress in the statesâ courts and legislatures, which remain free to restrict such takings pursuant to state laws and constitutions.
{¶ 6} In response to that invitation in Kelo, Ohioâs General Assembly unanimously enacted 2005 Am.Sub.S.B. No. 167. The legislature expressly noted in the Act its belief that as a result of Kelo, âthe interpretation and use of the stateâs eminent domain law could be expanded to allow the taking of private property that is not within a blighted area, ultimately resulting in ownership of that property being vested in another private person in violation of Sections 1 and 19 of Article I, Ohio Constitution.â Section 4(A), 2005 Am.Sub.S.B. No. 167. The Act created a task force to study the use and application of eminent domain in Ohio and imposed âa moratorium on any takings of this nature by any public body until further legislative remedies may be considered.â
{¶ 7} We now turn to the cases pending before us, which raise social and legal issues similar to those in Kelo.
{¶ 8} The appellantsâ property was appropriated by the city of Norwood after the city determined that the appellantsâ neighborhood was a âdeteriorating area,â as that term is defined in the provisions governing appropriations in the Codified Ordinances of the City of Norwood (âNorwood Codeâ). Although, as we shall discuss below, we have held that a city may take a slum, blighted, or deteriorated property for redevelopment, State ex rel. Bruestle v. Rich (1953), 159 Ohio St. 13, 50 O.O. 6, 110 N.E.2d 778, and suggested that the taking is proper even when the city transfers the appropriated property to a private party for redevelopment, AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp. (1990), 50 Ohio St.3d 157, 553 N.E.2d 597, we have never been asked whether a city may
{¶ 9} We hoM 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 of Section 19, Article I of the Ohio Constitution.
{¶ 10} We also hold that the void-for-vagueness doctrine applies to statutes that regulate the use of eminent-domain powers. Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers. Applying that standard, we hold that Norwoodâs use of âdeteriorating areaâ as a standard for appropriation is void for vagueness. We further hold that the use of the term âdeteriorating areaâ 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.
{¶ 11} Finally, we hold that the provision in R.C. 163.19 that prohibits a court from enjoining the taking and using of property appropriated by the government after the compensation for the property has been deposited with the court but prior to appellate review of the taking violates the separation-of-powers doctrine and is therefore unconstitutional. We further hold that the unconstitutional portion of R.C. 163.19 can be severed from the rest of the statute, and, accordingly, the remainder of the statute remains in effect.
I. Relevant Background
A
Norwood and Its Denizens
{¶ 12} The city of Norwood is a modern urban environment. Surrounded by the city of Cincinnati, Norwood was once home to several manufacturing plants and businesses that provided a substantial tax base for the municipality. Despite that industrial component, Norwood was, and for many remains, a desirable place to live. Norwoodâs neighborhoods were composed of traditional single-family houses and duplexes that provided homes to generations of families and many individuals.
{¶ 14} In the 1960s, property was appropriated from the appellantsâ neighborhood and used in the construction of a major highway â Interstate 71 â through Cincinnati. In the neighborhoods affected, numerous homes were razed and. front yards diminished in order to make way for the access roads and ramps to the highway. The streets became busier, creating safety problems for residents who had to back onto busy roadways from their driveways. Residential roads that once ran between major thoroughfares were bisected by the new highway, creating dead-end streets.
{¶ 15} Over time, businesses arose in places where houses once stood. The neighborhood became less residential and more commercial. Other changes in the neighborhoodâs character followed. Traffic increased dramatically due to motorists seeking the highway and businesses in the area. Noise increased, and light pollution became more prevalent.
{¶ 16} The parties vehemently disagree as to the extent to which these changes adversely affected the physical functionality, aesthetic appeal, and quality of living in the neighborhood. There is no disagreement, however, that the property held commercial value and that the proposed plan for development would raise money for the city.
{¶ 17} A private, limited-liability company, Rookwood Partners, Ltd. (âRook-woodâ), entered discussions with Norwood about redeveloping the appellantsâ neighborhood. The preliminary plans for the development call for the construction of more than 200 apartments or condominiums and over 500,000 square feet of office and retail space (all of which would be owned by Rookwood), as well as two large public-parking facilities (which would be owned by Norwood) with spaces for more than 2,000 vehicles. The city expects the redeveloped area to result in nearly $2,000,000 in annual revenue for Norwood.
{¶ 18} Norwood, operating with a deficit, was unable to fix the problems or redevelop the appellantsâ neighborhood on its own, and thus city council was interested in the project. Discussions between Norwood and Rookwood culminated in a redevelopment contract in which Rookwood agreed to reimburse the city for the expenses of the project, including the costs arising from any need to use eminent domain to appropriate the property necessary for the project.
{¶ 19} Rookwood preferred that Norwood acquire the property needed for the project through eminent domain, but Norwood resisted. It encouraged Rook-
{¶ 20} Rookwood was largely successful; it secured acquisition agreements from a substantial majority of the owners of the property necessary to complete the project. The appellants, however, refused to sell.
{¶ 21} Because the appellants refused to sell their property, Rookwood asked Norwood to appropriate the appellantsâ properties and transfer them to Rook-wood. Rookwood, in turn, agreed to raze the existing structures (including the appellantsâ homes), reconfigure the streets, and redevelop the area.
B
The Takings
{¶ 22} Pursuant to the Norwood Code, an urban-renewal study must be completed before the city can institute eminent-domain proceedings.
{¶ 23} After public hearings and town meetings were held and the local planning commission recommended approval of the redevelopment plan, Norwood City Council passed a series of ordinances adopting the plan and authorizing the mayor to enter the redevelopment agreement with Rookwood and to appropriate the appellantsâ property. The city then filed complaints against the appellants to appropriate their properties.
{¶ 24} At trial, Norwood relied on the testimony of KKG employees to support its conclusion that the appellantsâ neighborhood was deteriorating. KKG employees testified that the neighborhood was not a slum, blighted, or deteriorated area as that term is defined in the Norwood Code. The trial court found that the critical evidence presented by Norwood conflicted as to the conclusions to be drawn about the neighborhood. In her findings of fact, the trial judge noted that although one KKG witness opined that the neighborhood was blighted and in a deteriorating condition, he also admitted that the area was not a deteriorated area as that term is defined by the Norwood Code. The trial judge also found that another KKG witness testified that the neighborhood was neither a slum nor blighted or deteriorated and was not on its way to becoming blighted and that he could not conclude that the neighborhood was conducive to ill health, transmission of disease, or juvenile delinquency and crime, or that it was detrimental to public health, safety, morals or general welfare. He testified that he believed that at best, the neighborhood was deteriorating as a single-family-residence neighborhood and that the quality of life of the neighborhoodâs residents was decreasing. The trial judge similarly found that Norwoodâs planning director testified only that the neighborhood âprobably wouldâ deteriorate or was in danger of deteriorating into a blighted area.
{¶ 25} After a hearing that lasted several days, the trial court rendered findings of fact and conclusions of law regarding whether the taking was lawful. The court found that KKGâs study of the neighborhood contained numerous flaws and errors. Although the court did not enumerate all of the flaws and errors, it specifically noted that KKG had counted several negative factors twice, erroneously included factors that should not have been considered, and improperly
{¶ 26} Significantly, the court found that Norwood had abused its discretion insofar as it had found that the neighborhood was a âslum, blighted or deteriorated area.â That conclusion was based on the paucity of evidence supporting the necessary finding that a âmajority of structuresâ in the neighborhood were conducive to ill health and crime, detrimental to the publicâs welfare, or otherwise satisfied the criteria of a slum, blighted, or deteriorated area. The court concluded, however, that there was no showing that Norwood had abused its discretion in finding that the neighborhood was a âdeteriorating area.â
{¶27} The latter conclusion seems to have been driven by the deferential standard that the trial court believed it was required to use in evaluating Norwoodâs conclusion:
{¶ 28} âThe issue is whether [Norwood] abused its discretion in finding that the area was in danger of deteriorating into a blighted area. The Court does not need to conclude that it would reach the same judgment as Norwood, but only that there was a sound reasoning process and that Council did not abuse its discretion. The Court finds that this is a more difficult issue [than the issue of whether the neighborhood was a slum, blighted, or deteriorated area]. On the one hand, it is undisputed that all the buildings in the area are in good to fair condition, generally well maintained with no tax delinquencies, none were âdilapidated,â and none were âobsolete.â The KKG principal responsible for the [Urban-Renewal] Plan concluded that the area was not in danger of deteriorating into a blighted area. He did testify that the area was deteriorating as a single family neighborhood; however, this is not the test. The area must be in danger of deteriorating into a blighted area. On the other hand, it is undisputed that there are safety issues and traffic concerns causing unsafe conditions (especially with dead-end streets with little or no turnaround for emergency vehicles), a predominance of inadequate street layout, faulty lot layout, and diversity of ownership, which in combination are in the City Councilâs judgment causing the area to be deteriorating. There was evidence that the conditions could lead to impairment of sound growth, an economic liability and a menace to the public welfare. The
â {¶ 29} âJudicial deference to City Councilâs decisions is required because in our system of government, legislatures are better able to assess what public purpose should be advanced by the exercise of eminent domain.â (Emphasis added and footnote deleted.)
{¶ 30} Having found that the taking was justified because of the deteriorating condition of the neighborhood, the trial court returned the causes (which had been consolidated) to their originally assigned judges to hold trials on the issue of compensation. After the juries rendered their verdicts on the value of appellantsâ properties, Norwood deposited with the court the full amount awarded in each valuation action. Norwood obtained the titles to the properties and transferred them to Rookwood, which began demolishing the houses in the neighborhood.
{¶ 31} The trial court refused to enjoin Rookwood from using or damaging the property pending appeal, and a divided court of appeals denied a stay of the trial courtâs judgment, finding that R.C. 163.19 prohibited such relief. Norwood v. Horney (Jan. 19, 2005), 1st Dist. No. C-040683; Norwood v. Gamble (Jan. 19, 2005), 1st Dist. No. C-040783. Upon appeal of those rulings, we accepted the causes and issued orders preventing the appellees from destroying or otherwise altering the properties pending our review of the taking. 105 Ohio St.3d 1445, 2005-Ohio-669, 822 N.E.2d 1261; 106 Ohio St.3d 1524, 2005-Ohio-5223, 835 N.E.2d 375; 105 Ohio St.3d 1559, 2005-Ohio-2447, 828 N.E.2d 115.
{¶ 32} With this background in mind, we turn to the law relevant to these cases.
II. Constitutional Considerations
{¶ 33} âWherever there is sovereignty, whether in the old world, where it is held in trust for the people by things called kings, or in this country where the people wear it upon their own shoulders, two great and fundamental rights exist. The right of eminent domain in all the people, and the right of private.property in each. These great rights exist over and above, and independent of all human conventions, written and unwritten.â Proprietors of the Spring Grove Cemetery v. Cincinnati, Hamilton & Dayton RR. Co. (Super.1849), 1 Ohio Dec. Reprint 316, reversed on other grounds (Ohio 1850), 1 Ohio Dec. Reprint 343.
A
Individual Property Rights
{¶ 34} The rights related to property, i.e., to acquire, use, enjoy, and dispose of property, Buchanan v. Warley (1917), 245 U.S. 60, 74, 38 S.Ct. 16, 62 L.Ed. 149,
{¶ 35} Believed to be derived fundamentally from a higher authority and natural law, property rights were so sacred that they could not be entrusted lightly to âthe uncertain virtue of those who govern.â Parham v. Justices of Decatur Cty. Inferior Court (Ga.1851), 9 Ga. 341, 348. See, also, Bank of Toledo v. Toledo (1853), 1 Ohio St. 622, 664; Proprietors of Spring Grove, 1 Ohio Dec. Reprint 316; Joseph J. Lazzarotti, Public Use or Public Abuse (1999), 68 U.M.K.C.L.Rev. 49, 54; J.A.C. Grant, The âHigher Lawâ Background of the Law of Eminent Domain (1932), 6 Wisc.L.Rev. 67. As such, property rights were believed to supersede constitutional principles. âTo be * * * protected and * * * secure in the possession of [oneâs] property is a right inalienable, a right which a written constitution may recognize or declare, but which existed independently of and before such recognition, and which no government can destroy.â Henry v. Dubuque Pacific RR. Co. (1860), 10 Iowa 540, 543. As Chief Justice Bartley eloquently described more than 150 years ago:
{¶ 36} âThe right of private property is an original and fundamental right, existing anterior to the formation of the government itself; the civil rights, privileges and immunities authorized by law, are derivative â mere incidents to the political institutions of the country, conferred with a view to the public welfare, and therefore trusts of civil power, to be exercised for the public benefit. * * * Government is the necessary burden imposed on man as the only means of securing the protection of his rights. And this protection â the primary and only legitimate purpose of civil government, is accomplished by protecting man in his rights of personal security, personal liberty, and private property. The right of private property being, therefore, an original right, which it was one of the primary and most sacred objects of government to secure and protect, is widely and essentially distinguished in its nature, from those exclusive political rights and special privileges * * * which are created by law and conferred upon a few * * *. The fundamental principles set forth in the bill of rights in our constitution, declaring the inviolability of private property, * * * were evidently designed to protect the right of private property as one of the primary and original objects of civil society * * (Emphasis sic.) Bank of Toledo, 1 Ohio St. at 632.
{¶ 38} Ohio has always considered the right of property to be a fundamental right. See, e.g., Reece v. Kyle (1892), 49 Ohio St. 475, 484, 31 N.E. 747, overruled in part on other grounds, Mahoning Cty. Bar Assn. v. Ruffalo (1964), 176 Ohio St. 263, 27 O.O.2d 161, 199 N.E.2d 396; Hatch v. Buckeye State Bldg. & Loan Co. (P.C.1934), 32 Ohio N.P. (N.S.) 297, 16 Ohio Law Abs. 661; In re Vine St. Congregational Church (C.P.1910), 20 Ohio Dec. 573; Caldwell v. Baltimore & Ohio Ry. Co. (C.P.1904), 14 Ohio Dec. 375; Kata v. Second Natl. Bank of Warren (1971), 26 Ohio St.2d 210, 55 O.O.2d 458, 271 N.E.2d 292. There can be no doubt that the bundle of venerable rights associated with property is strongly protected in the Ohio Constitution and must be trod upon lightly, no matter how great the weight of other forces.
B
The Stateâs Power of Eminent Domain
{¶ 39} Like the individualâs right to property, the stateâs great power to seize private property predates modern constitutional principles. Understood as âthe offspring of political necessity,â Kohl v. United States (1875), 91 U.S. 367, 371, 23 L.Ed. 449, eminent domain is, like the taxation and police powers, Kimball v. Grantsville City (1899), 19 Utah 368, 57 P. 1, 2, âan inseparable incident of sovereignty,â Giesy v. Cincinnati, Wilmington & Zanesville RR. Co. (1854), 4 Ohio St. 308, 323. See, also, Cooper v. Williams (1831), 4 Ohio 253, 287 (âby virtue of its transcendent sovereignty (dominium eminens), [the state has] a power to appropriate private property for public uses, for the purpose of promoting the general welfare. This power is inherent in every governmentâ). At the time the Constitution was adopted, eminent domain was so familiar that â[i]ts existence * * * in the grantee of that power [was] not to be questioned.â Kohl, 91 U.S. at 372, 23 L.Ed. 449. The founders recognized the necessity of the takings power and expressly incorporated it into the Fifth Amendment to the
{¶40} There is an inherent tension between the individualâs right to possess and preserve property and the stateâs competing interests in taking it for the communal good. Mindful of that friction and the potential for misuse of the eminent-domain power, James Madisonâs proposed draft of the Takings Clause included two equitable limitations on its use that were eventually incorporated into the Fifth Amendment:
{¶ 41} Similarly, almost every state constitution eventually included provisions related to eminent-domain powers. Stoebuck, 47 Wash.L.Rev. at 554-555. Both the Northwest Ordinance and the Ohio Constitution
{¶ 43} It is axiomatic that the federal and Ohio constitutions forbid the state to take private property for the sole benefit of a private individual, OâNeil v. Summit Cty. Bd. of Commrs. (1965), 3 Ohio St.2d 53, 57, 32 O.O.2d 42, 209 N.E.2d 393; Vanhorneâs Lessee v. Dorrance (1795), 2 U.S. (2 Dall.) 304, 1 L.Ed. 391, even when just compensation for the taking is provided. Kelo, 545 U.S. 469, 125 S.Ct. at 2661, 162 L.Ed.2d 439 (âit has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensationâ). See, also, Prestonia Area Neighborhood Assn. v. Abramson (Ky.1990), 797 S.W.2d 708, 711 (naked and unconditional government seizure of private property for private use is repugnant to our constitutional protections against the exercise of arbitrary power and fundamental unfairness). A sine qua non of eminent domain in Ohio is the understanding that the sovereign may use its appropriation powers only upon necessity for the common good. Buckingham v. Smith (1840), 10 Ohio 288, 297 (eminent domain âis founded on the superior claims of a whole community over an individual citizen; but then in those cases only where private property is wanted for public use, or demanded by the public welfare â [emphasis sic]). As we explained in Cooper, the exercise of sovereignty in eminent-domain cases is predicated on the notion that such a taking can be permitted only âfor the use and benefit of the people,â which is âdistinct from government interest, profit, or concern.â Cooper, 4 Ohio at 290. âIt is only this great and common benefit to all the people alike that creates a necessity authorizing and justifying the seizure * * *. It is the peopleâs prerogative, exists in the social compact, and is founded in the maxim, âsalus populi suprema est lex.â â Id.
{¶ 44} Despite such commanding language, however, the concept of public use has been malleable and elusive. As eminent-domain doctrine developed over the years, understanding of the term âpublic useâ often varied greatly, leaving case law in â âdoctrinal and conceptual disarrayâ â and causing uncertainty for attorneys and jurists. Meltz et al., The Takings Issue, supra, at 8, quoting Andrea Peterson, The Takings Clause: In Search of Underlying Principles: Part I â A
{¶ 45} In Americaâs nascent period, there was an abundance of unclaimed land, limited government activity, and little controversy over the use of eminent domain to develop land and natural resources. The Public Use Limitation on Eminent Domain: An Advance Requiem (1949), 58 Yale L.J. 599, 600; Philip Nichols Jr., The Meaning of Public Use in the Law of Eminent Domain (1940), 20 B.U.L.Rev. 615, 617. Id. When takings occurred, they were rarely believed to be unwarranted. Typically, the appropriation was of obvious necessity and had-clear, palpable benefits to the public, as in cases in which the property was taken for roadways and navigable canals, government buildings, or other uses related to the protection and defense of the people. See, e.g., Cooper, 4 Ohio at 286-287; Ferris v. Bramble (1855), 5 Ohio St. 109, 113; Rindge Co. v. Los Angeles Cty. (1923), 262 U.S. 700, 43 S.Ct. 689, 67 L.Ed. 1186; Kohl, 91 U.S. at 368, 23 L.Ed. 449; Nichols, 20 B.U.L.Rev. at 617, and cases cited therein. In this early period, âpublic useâ was often equated to âpublic benefit.â See, e.g., McQuillen v. Hatton (1884), 42 Ohio St. 202; Nichols at 617.
{¶ 46} The early legal authority for the rare challenge to such takings was also circumscribed. Before the Civil War and the adoption of the Fourteenth Amendment, the federal courts held the Fifth Amendment inapplicable to the states. See, e.g., Barron v. Mayor & Baltimore City Council (1833), 32 U.S. (7 Pet.) 243, 250-251, 8 L.Ed. 672 (refusing to impose the Fifth Amendmentâs limitations on eminent domain on the states). Thus, the federal courts did not restrain the statesâ exercise of eminent-domain powers to take private property.
{¶ 47} Although the takings were occasionally challenged in state courts, only in rare instances did the courts interfere. See, e.g., Buckingham, 10 Ohio at 296-297 (limiting the taking of land to what was necessary to accomplish the public benefit). Generally, the state courts upheld the authority for the taking. Nichols, 20 B.U.L.Rev. at 617 and fn. 13.
' {¶ 48} As America shifted from an agrarian society to an industrialized and increasingly urban one, the economy grew. Social policy and legal philosophy fed more probing inquiries into the nature, scope, and application of all of the sovereign powers, including eminent domain. The takings doctrine was used
{¶ 49} By the mid-19th century, there was some movement within the state courts to limit broad interpretations of public benefit and to more strongly guard individual property rights. See, e.g., Pittsburg, Wheeling & Kentucky RR. Co. v. Benwood Iron-Works (1888), 31 W.Va. 710, 735, 8 S.E. 453 (âWe would do nothing to hinder the development of the state, nor to cripple railroad companies in assisting such development, but at the same time we must protect the property rights of the citizens. All that to which the corporations are entitled under a proper construction of the law they will receive; but they must not, for their own gain and profit, be permitted to take private property for private useâ); see, also, Townsend v. Epstein (1901), 93 Md. 537, 49 A. 629. This retrenchment from former broad readings often required creative evasion of precedent, recasting the takings as an exercise of the police power not related to eminent domain. The Public Use Limitation on Eminent Domain, 58 Yale L.J. at 605; Nichols, 20 B.U.L.Rev. at 617-624.
{¶ 50} By the end of the 19th century, the federal courts had established that the Due Process Clause of the Fourteenth Amendment endowed them with authority to review state takings, see, e.g., Missouri Pacific Ry. Co. v. Nebraska (1896), 164 U.S. 403, 417, 17 S.Ct. 130, 41 L.Ed. 489, but they employed broad constructions of âpublic useâ in doing so, particularly when the taking expanded the economy or provided vital resources, as with mining operations or irrigation systems necessary for settlement and development of the western regions. Nichols, 20 B.U.L.Rev. at 623. See, e.g., Strickley v. Highland Boy Gold Mining Co. (1906), 200 U.S. 527, 26 S.Ct. 301, Additional Information