Jim McCarthy, a lawyer with Katz Teller Brant & Hild, litigates frequently in the area of eminent domain.  I have worked with him as an appellate consultant. His post follows on Legally Speaking’s preview of Clifton v. Village of Blanchester and Moore et al. v. City of Middletown, which will be argued in the Ohio Supreme Court on September 6.

From Jim McCarthy:

While the first proposition of law presented in these cases will require the Ohio Supreme Court to address a unique factual circumstance (the impact of a zoning law outside a government’s jurisdiction), the second proposition of law presents a more important and pervasive issue for regulatory takings jurisprudence.  Will significant dimunition in economic value amount to a regulatory taking where the regulatory action does not deny a claimant all economically viable use of his property.  The court of appeals insisted that mere dimunition in a property’s value, however serious, is insufficient to demonstrate a taking.  In Agins v. Tiburon (1980), 447 U.S. 255, 260, the United States Supreme Court held that a general zoning law effects a taking if the ordinance denies an owner economically viable use of his land.  Does that economically viable use of land require that the landowner be denied all economically viable use of the land?  The appellees have argued to the Ohio Supreme Court that a regulatory taking requires such total deprivation.

Surprisingly, the appellants have not quoted or cited the Ohio Supreme Court in  Norwood v. Horney, 110 Ohio St.3d 353, 2006-Ohio-3799. These cases present the Ohio Supreme Court with an opportunity to confirm what was said in the Horney decision:  “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 the uncertain virtue of those who govern.  ***  As such, property rights were believed to supersede constitutional principles. To be … protected and … secure in the possession of [one’s] 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.”  (citations omitted and internal quotations omitted).  If property rights are sacrosanct under Ohio law, then the court must recognize that a substantial loss in value to property and material interference with investment-backed expectations give rise to a regulatory taking.