Ohio eminent domain bill meets resistance

By:Peggy Kirk Hall, Attorney and Director, Agricultural & Resource Law Program Friday, June 16th, 2023
First page of House Bill 64

Eminent domain is one of those topics that always generates concern among farmland owners. That may be part of the reason behind an eminent domain bill sponsored by Representatives Darrell Kick (R-Loudonville) and Rodney Creech (R-W Alexandria), who introduced House Bill 64 in February.  According to the sponsors, the bill would “reform current eminent domain laws to provide landowners with more rights and support.” But HB 64 now faces significant resistance and uncertainty.

What HB 64 proposes

Ohio’s Legislative Service Commission summarizes the procedural changes HB 64 proposes as follows:

  • Voids appropriations (the taking of property through eminent domain) that do not follow statutorily mandated procedures.
  • Increases the taking agency’s (the government or private entity appropriating property) burden of proof in appropriation proceedings.
  • Narrows factual presumptions made in favor of taking agencies in appropriations
  • Prohibits a taking agency from reducing any offer it makes in an effort to acquire
    property, if the attempts may result in appropriations proceedings, or subsequently arguing for a lower valuation in an appropriation proceeding.
  • Expands required attorney fee, cost, and expense awards due to property owners in appropriation actions.
  • Allows property owners who allege their property has been appropriated outside of the required judicial process to sue for inverse condemnation.
  • Requires courts hearing inverse condemnation cases to award successful property owners’ attorneys’ fees, costs, and expenses.
  • Requires court hearing appropriations cases to award property owner damages if the taking agency uses coercive actions.
  • Lengthens certain appropriation proceeding deadlines.

In addition to revising eminent domain procedures, HB 64 would also prohibit the use of eminent domain to obtain property for recreational trails and to maintain recreational trails—a controversial issue tracing back to the Mill Creek Metroparks bike trail project in Mahoning County.   

Committee hearings on HB 64

HB 64 has yet to pass out of the House Civil Justice Committee since being referred to the committee on February 28.  Three parties testified in favor of the bill a hearing on March 14—Ohio Farm Bureau, Ohio Dairy Producers, and Ohio Council of Retail Merchants.  The parties commended the additional protections given to landowners facing eminent domain proceedings and stated that the reforms in the bill would “prevent excess and unnecessary use of eminent domain.”  Committee members raised several questions about the proposal at that time, and the bill then stalled for two months. 

On May 16, the committee accepted a substitute bill that changed several provisions regarding recreational trails, compensation offers and awards, and relocation assistance—all questions raised in the earlier committee hearing.  Changes in the substitute bill include:

  • A limit the prohibition on using eminent domain for recreational trails, stating that eminent domain could not be used to take property if the primary use of the property would be for a recreational trail and the property is not adjacent to a public road and within a road right of way.
  • Restoration of an agency’s authority to reduce a compensation offer amount if it discovers conditions that it could not have discovered when it make the original compensation offer.
  • Revised amounts that would be awarded to a landowner if a jury’s award of compensation is higher than an agency’s most recent good faith offer and removes a percentage limit on mandatory cost and expense awards.

Despite the substitute bill revisions, 37 parties representing a wide variety of interests submitted opponent testimony at the fourth hearing for the bill on May 23. Local governments and associations such as the County Commissioners Association of Ohio, County Engineers Association of Ohio, Ohio Municipal League, and Ohio Mayors Alliance testified against the bill.  Business interests such as American Electric Power, Ohio Oil and Gas Association, and Ohio Chamber of Commerce also opposed the bill, as did transportation and recreational interests such as Central Ohio Transit Authority, Mid-Ohio Regional Planning Commission, Rails-to-Trails Conservancy, and Ohio Parks and Recreation Association. Several common themes appear in the opponent testimony: that Ohio’s current eminent domain laws are not “broken” but instead effectively balance landowner rights against public needs, that the bill would create negative financial and taxpayer impacts, and that it would hamper economic development and infrastructure and public works projects in Ohio.

What happens next with the eminent domain bill?

The strong resistance to HB 64 certainly signals problems for its adoption and highlights a need for agreement on whether Ohio’s eminent domain law effectively balances public needs and private property rights.  Even so, there are several routes the bill could take from this point:  the committee chair could schedule a committee vote on the bill, the sponsors could hold further “interested party” meetings with the intent to further revise the bill, a Senate sponsor could introduce a similar bill and try to move it through the Senate, or the bill could simply die an early death.

 Civil Justice Committee Chair Brett Hillyer (R-Uhrichsville) did not schedule the bill for a fifth hearing and potential vote for the committee meetings held on June 6 and June 13.  Several opponents encouraged additional “interested party” negotiations and further changes to the proposal.  Based on the resistance to the bill in its current form, if such discussions don’t take place or are not successful, the bill will likely die that early death or arise in a different form in the future.

Read more about and follow HB 64 on the Ohio Legislature’s website.