Ohio's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain Powers?

  The power to appropriate private property in Ohio is determined by the legislature, the Ohio General Assembly. Under Ohio law, appropriations are only allowed if they are “necessary” and for a “public use”. Counties, municipal corporations, and townships are authorized to exercise the power of eminent domain, if necessary, for public purposes. Also, the power of eminent domain has been provided to numerous government agencies and private companies, including appropriations for: roads and highways; pipelines for transporting gas; electric light and power utilities; water and sewers; schools; public buildings; parks; airports; telephone companies; railroads; and cemeteries. It is important in every appropriation to make a determination that the appropriation is necessary and for a public purpose.

• What Are the Legal Pre-Requisites for Exercising the Power?

  Under the Ohio Constitution and Ohio laws, the power of eminent domain can only be exercised for takings that are necessary and for a public use. Before an appropriation case can be filed in court, the appropriating authority has the obligation to provide the owner with a notice of the appropriation. The condemning authority also must provide the owner with a written good faith offer, and an appraisal of the property. The condemning authority can only appropriate real property from the owner after negotiations occur and the owner and condemning authority are unable to reach agreement.

• What Limitations of Defenses Exist?

  Under Ohio law, private property can only be condemned for takings that are “necessary” and for a “public use”. After an appropriation case is filed, the owner may challenge the right of the condemning authority to make the appropriation, may challenge the appropriation if it is not for a public use, and may challenge the necessity of the appropriation. The owner also has the right to assert that the condemning authority has not followed the prerequisite actions that must be taken by the condemning authority such as the providing of a notice of appropriation, the providing of an appraisal, and the providing of a good faith offer and the existence of settlement negotiations.

• What Constitutes a Public Purpose?

  The Ohio Constitution and Ohio laws limit the exercise of the power of eminent domain to takings that are “necessary”, and for a “public use”. The “public use” requirement is usually satisfied if the takings are for highways and roads, public buildings, public utilities, hospitals, schools, parks, airports, and other uses that serve a public purpose.
  
  Generally, private property cannot be taken by eminent domain solely for a private use. Also, in Ohio private property may not be taken solely to provide an economic or financial benefit to the government or community. In a case involving the City of Norwood, the Ohio Supreme Court specifically held that “an economic or financial benefit alone is insufficient to satisfy the public-use requirement of the Ohio Constitution.”

• How is Just Compensation Detemined?

  The Fifth Amendment to the U.S. Constitution provides in part “... nor shall private property be taken for public use, without just compensation.”
  
  The constitutional right to just compensation applies to the State of Ohio. Under Ohio law, a landowner whose property is taken is entitled to have just compensation determined by a jury. The jury is instructed that they shall assess compensation for the fair market value of all property taken and that the fair market value is to be assessed considering the highest and best use of the property. In addition to assessing the value of the property that is being taken from the landowner, the jury is also instructed to value any damages that exist to the remaining land and buildings after the appropriation. In the event that there is a temporary taking, the landowner is also entitled to receive compensation for the temporary use of the property by the appropriating authority. The amount of Just Compensation is established by expert appraisers who are familiar with the eminent domain process. Other experts may also be needed depending on the type of property involved in the appropriation, such as highest and best use experts, zoning experts, traffic consultants, engineering experts, and architectural experts.

• How Is Fair Market Value Defined?

  Under Ohio law, “fair market value” is defined as “The amount of money which could be obtained on the market at a voluntary sale of the property. It is the amount a purchaser who is willing, but not required to buy, would pay and that a seller who is willing, but not required to sell, would accept, when both are fully aware and informed of all the circumstances involving the value and use of the property.” In determining “fair market value”, every element that a buyer would consider before making a purchase such as location, surrounding area, quality and general condition of the property, and the buildings and improvements on the property are to be considered. In determining fair market value, Ohio law provides that the property must be valued at its “highest and best use”, which means the most valuable use of the property.

• What About Recovering Damages to Remaining Property

  Under Ohio law, the owner is entitled to receive compensation for damages to the owner’s property remaining after the taking. The condemning authority, in addition to paying compensation for the part taken, is also obligated to pay compensation for the decrease in value to the property remaining after the appropriation, which is referred to as the “remainder” or the “residue”. For example, if the widening of a road causes the taking of part of a restaurant’s parking lot, the owner of the restaurant property would be entitled to receive the fair market value of the land taken, and the decrease in value to the remaining property because the restaurant property has less parking spaces. In the event of the taking of part of a homeowner’s front yard for a pipeline, or for a road widening, the landowner would be entitled to receive compensation for the land taken, and for the decrease in value of his/her remaining residential property as a result of the pipeline or highway expansion taking.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Under Ohio law, the right to recover attorney fees, expert fees, and litigations costs is limited. If the condemning agency abandons the appropriation, or in the event that a court determines that the appropriation is not allowed because the necessary and public purpose requirement was not satisfied, a court can award attorney’s fees, expenses and costs. In an appropriation for roadway purposes, attorney’s fees, costs and expenses are not recoverable except for certain appropriations when agricultural land is taken. In other appropriations not involving roadways, attorney fees, expenses and costs may be recovered under limited circumstances subject to capped amounts.

• When Can the Goverment Take Possession of Property Before the Landowner Has Received Final Compensation?

  Generally, under Ohio law, the condemning authority is only able to take possession of the owner’s property upon a final settlement between the parties, or after a trial verdict. In certain circumstances, Ohio law provides “quick take” authority allowing the condemning agency to take possession of the owner’s property prior to determining the final amount of just compensation. A quick-take is allowed in condemnations for highways and road purposes, and for certain emergency appropriations, after the condemning agency deposits their offer amount with the court when suit is filed. The owner is allowed to withdraw the deposit, prior to the final determination of just compensation