Opinion
No. 127790
Decided September 23, 1969.
Eminent domain — Necessity — Urban renewal — Due process — Equal protection — Negotiations toward landowner redeveloping his tract compatibly with general plan — Blighted structure removed by landowner — Attempts to locate user whose purposes conformed to plan — Landowner co-operated with city — Land converted to parking lot after appropriation action commenced — Tract of another exempted from appropriation for use as parking lot — Reason for refusing exemption — City's failure to act in good faith and impartial — Parcel not reasonably necessary to end in view.
1. Ordinarily, the need for a particular tract of land in an urban renewal project rests in the discretion of the legislative authority of the city, subject to the property owner's rights of due process and equal protection of the laws.
2. Section 163.08(B), Revised Code, requires that a judicial determination of the necessity for an appropriation of property be made whenever it is denied in the appropriation action.
3. The necessity which is essential for an appropriation of property is not limited to an absolute physical necessity, but includes that which is reasonably convenient or useful to the public.
4. A determination by the court that the condemnor's finding of the necessity for an appropriation was erroneous, although honestly made, would not be sufficient to establish that the property owner's constitutional rights have been violated, if an abuse of discretion is not found to have occurred in such finding.
5. The fact that the totality of the evidence demonstrates that the defendants' parcel did not fall within any of the standards from which the city determined the nonexemption of certain parcels establishes that there was no real necessity for its acquisition, but does not necessarily prove that the determination to the contrary represented an abuse of discretion.
6. The right to due process of law is intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.
7. In order to afford due process of law, the proceedings must be appropriate to the case and just to the parties affected, and pursued in the ordinary manner and adapted to the end to be attained, with opportunity to be heard, when necessary, for the just protection of rights.
8. To assure equal protection of the laws, a law must have an equality of operation upon all persons under like circumstances.
9. In an action to appropriate property for an urban renewal project, where the evidence discloses that (1) it was the stated policy of the city to give special consideration to any property owner who desired to redevelop his own land, (2) the city did not formally adopt any standards by which exemption from appropriation was to be decided, (3) the defendant made appropriate application for such exemption and fully co-operated with the city in attempts to redevelop his tract in accordance with the general plan for the area, (4) the administrative officers responsible for processing his application never presented it to the city commission for appropriate action, (5) several other parcels were exempted from appropriation, including one placed to the same use as the defendants' tract, (6) the defendants' property did not fall within any of the informal standards used in refusing exemption to certain other parcels, (7) defendants had removed the blighted structure which had been the primary reason given for including their property in the project, and (8) the real reason for refusing exemption appeared to be a contractual obligation to the single developer selected for the project, a reasonable necessity for the appropriation of their property is not proven, and a judgment denying the appropriation should be rendered in favor of the defendants.
Mr. W. Irwin Kilpatrick and Mr. Robert C. Alexander, for plaintiff.
Mr. Gordon Savage and Mr. Charles Pfarrer, for defendants.
I
This cause has been submitted for determination upon the evidence, the arguments and briefs of counsel.
The court having reserved its rulings as to the admissibility of exhibits 19-A, 19-B and 24 hereby finds plaintiff's objections thereto well taken and holds each exhibit so identified as inadmissible.
The issue presented is the right of and necessity for the appropriation of the real property of the defendants pursuant to Section 163.09(B), Revised Code.
II
From a preponderance of the evidence the court delineates the salient facts as follows:
1. Lauretta Keys is the record owner of the real estate in question, lot number 4796 on the revised plat of the city of Dayton and known as 324-326 West First Street in the city of Dayton.
2. R. B. Keys, husband of Lauretta Keys, was her agent acting within the scope of his authority in the transaction of all the business matters connected with the property in question.
3. Mr. Robert Flynn, for the purposes of this case, was and is the director of the City Planning Commission.
4. Mr. Earl Sterzer, for the purposes of this cause, was director of Urban Renewal from 1962 to 1966, and is now director of its successor office, Community Development.
5. The offices which both Mr. Flynn and Mr. Sterzer head worked independently and in association with each other in planning and administering the Miami-Maple Urban Renewal Project (Project Ohio R-58).
6. The city commission, by resolution 2280, adopted December 22, 1965, and resolution 2274, adopted November 17, 1965, and ordinance 21946, passed February 16, 1966, declared its intention to appropriate the Keys' property for clearance and redevelopment purposes as a part of the plan for the Miami-Maple Urban Renewal Project.
7. In a letter addressed to property owner, dated January 8, 1960, and signed by Mr. Flynn, agent R. B. Keys received notice that the property was included in the urban renewal project.
8. In a letter addressed to Lauretta and R. B. Keys, dated January 21, 1963, and signed by Mr. Clarence Simonowicz, Association Planner, who was working directly under Mr. Flynn's supervision, it was stated: "There are no plans for the city of Dayton to acquire the property located at 324-326 West First Street, Dayton, Ohio, as a part of the Miami-Maple urban renewal program."
9. The city, in order to obtain government aid for the Miami-Maple Urban Renewal Project, was required to file its original plan with the federal government for its approval on May 31, 1963. After the plan was returned from the federal government, it was modified and adjusted to their standards. Thereafter such plan was submitted on June 17, 1964, to a public hearing. The hearing minutes were certified on September 17, 1964. Then, on October 6, 1964, the final details for said project were sent to the federal government for its final approval.
10. City of Dayton accepted Mr. Arthur Beerman's bid as a single developer to redevelop the area within said project in September 1965 by passing ordinance 21805.
11. A letter, addressed to Mr. Flynn, dated October 15, 1962, and signed by Mr. Keys, was sent to the City Planning Commission requesting a vacation of the alley between the Miller property (now the site of the new Ohio Bell Telephone building) and the Keys' property to a depth of 200 feet.
12. A letter, addressed to Mr. Keys, dated November 30, 1962, and signed by Mr. Flynn, stated that all the city departments had agreed upon the vacation of the aforementioned alley in order to facilitate Mr. Keys in developing the land in question.
13. Said alley is one-way south. The county, however, would not sign a petition to vacate the alley because there was no provision for two-way traffic to the county property. In effect, vacation of said alley would have left the county with no vehicular entrance to its county property. On the other hand, the city would not agree to the two-way traffic approach.
14. The Keys' property was designated Service Commercial.
15. The following uses were permitted in the areas designated Service Commercial:
a. Offices of all types
b. Communication services
c. Business and professional services
d. Social and cultural services
1. Medical
16. It has been established that Mr. Beerman intended to use the Keys' property to build a motel. However, such site is in the service commercial area, which does not permit such a use.
17. Mr. Flynn indicated that the project could be slightly altered to accommodate Mr. Beerman.
18. It was the city's policy to give special consideration to any property owner who desired to redevelop his own land.
19. The city promised to exclude any property from acquisition if the use of the property would be in conformity with land use plan and if the property owner would enter into a co-operation agreement with the provisions of the urban renewal plan.
20. In order to have one's property exempted from said project, it is necessary for the person to submit an application for exemption with the City Planning Commission; the Planning Commission will then make recommendations to the city commission, which would adopt a resolution or pass an ordinance, either excluding or including one's land within the project. Then the owner must enter into the above mentioned co-operation agreement.
21. The testimony shows that Mr. Keys filed his application for property exemption, but such application was not forwarded by either Mr. Flynn or Mr. Sterzer to the city commission to act upon.
22. Mr. Keys made attempts to develop his wife's land:
a. After January 21, 1963, he negotiated with one Mr. Irwin Class to erect a motel, but the deal never materialized.
b. He began to study a proposition of thirty doctors, who wanted to erect a medical building on his spouse's land, in February or March 1964. Mr. Keys then learned that said property had been included in the Galbreath bid. He thereupon contacted Mr. Flynn, who said that his land was a slum area. Mr. Flynn then told Mr. Keys to tear down the old mansion house and to keep him abreast of the medical building project. However, the plan had to be abandoned, when, in December 1964, Mr. Keys learned that the city was going to take three and a half feet off his lot to widen the alley that he had requested it to vacate.
c. In March 1965, Mr. Keys attempted to negotiate a deal with Avis Rent-A-Car concerning the erection of an office building. Mr. Keys informed Mr. Flynn and Mr. Sterzer in May 1965, and they recommended that he proceed with the plan. However, Mr. Flynn informed Mr. Keys that, because the bids for the redevelopment project were due on June 14, 1965, and that his plan could be terminated if the successful bidder refused to release his land.
23. After the final bids were accepted in July 1965, and Mr. Beerman was determined to be the developer, Mr. Flynn assured Mr. Keys that he could go ahead with the Avis plan because he would be able to obtain a release from the developer, Mr. Beerman.
24. On November 18, 1965, the Avis people terminated their plans with Mr. Keys because he could not obtain a release from the developer.
25. Mr. Flynn testified that the city commission adopted no standards by which his office would exclude or include property from the project. It was simply a matter of judgment of the planning board and the city commission.
26. Mr. Sterzer stated that the main reason that the Keys' property was to be acquired was the poor condition of the antiquated structure (mansion house) on it.
27. The primary standard used by the city in resolving whether to exempt property within the plan is the elimination of blight and the prevention of its recurrence. Secondary standards are the elimination of obsolete street patterns and whether a parcel could be assembled with the contiguous property to make a desirably large disposition parcel.
28. That thirteen parcels of real estate within the urban renewal project have been exempted from acquisition unconditionally or exempted to be used in conformity with the land use plan.
29. Mr. Keys demolished the blighted structure (mansion house) on his wife's land in October 1967, converting its use to a parking lot.
30. By not exempting the Keys' property, the city will lose $100,000 ($165,000 it must pay to Keys less approximately $65,000 that Beerman will pay the city for it).
III
The questions presented are:
1. Is the taking for the public use?
2. Is the taking reasonably necessary?
Legislative declarations and the judgments of our courts as to the uses of real property considered to be public have long established that urban redevelopment or renewal of blighted areas serves public purpose. Urban renewal, then, is an objective which, according to settled usage, the government is to provide.
Accordingly the court concludes that the taking under the facts and circumstances is for public use.
Ordinarily, the need for a particular tract to complete the renewal project rests in the discretion of the legislative branch, subject to the requirement that in making such determination it has afforded the property owner his constitutional rights of due process and equal protection of the laws.
Further it would appear that the Ohio Legislature by the provisions of Section 163.08(B), Revised Code, has specifically mandated that in the event the necessity for the appropriation is denied a judicial determination shall ensue.
IV
Necessity means that which is indispensible or requisite, especially toward the attainment of some end. Dayton v. Borchers, 13 Ohio Misc. 273. In statutory eminent domain cases it cannot be limited to an absolute physical necessity. It means reasonably convenient or useful to the public. Slother v. Ohio Turnpike Commission, 99 Ohio App. 228.
Reasonably means conformable to reason; sensible; rational; governed by reason in acting or thinking.
Is the Keys' property reasonably necessary to secure the end in view? In view of the fact that the totality of the evidence demonstrates that the Keys' parcel does not fall within any of the standards from which the city determined the non-exemption of certain parcels there is no real necessity for its acquisition.
The fact that an honest judgment, although erroneous, is not an abuse of discretion compels an examination as to whether the actions and procedures of the city were confined within the bound of the constitutional limitations imposed in making the determination of the necessity for the appropriation.
The Supreme Court of the United States has said that due process of law has never been precisely defined but it does not require a plenary suit or a trial by jury nor is it necessarily judicial procedure. Iowa Central Railway v. Iowa, 160 U.S. 389. The Supreme Court of Ohio in Benckenstein v. Schott, 92 Ohio St. 29, approved and adopted such proposition.
It must be confessed that the constitutional meaning or value of the phrase "due process of law" remains without that satisfactory precision of definition which judicial decisions have given to nearly all the other guaranties of personal rights found in the constitutions of the several states and of the United States. A general definition of the phrase which would cover every case would be most desirable, nevertheless, apart from the risk of failure to make the definition perspicuous and comprehensive, there is a wisdom in ascertaining the extent and application of the phrase by the judicial process of exclusion and inclusion as the cases arise.
After volumes spoken and written with a view to the exposition of the phrase, it would appear that mankind has settled upon the proposition that it was intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.
Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights; but not necessarily judicial proceedings; it may include summary proceedings if not arbitrary or unequal.
Due process of law in the Fourteenth Amendment refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state exerted within the limits of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions. It implies conformity with the natural and inherent principles of justice and requires that no one shall be condemned in person or property without opportunity to be heard. Holden v. Hardy, 169 U.S. 366. The proceedings must be appropriate to the case and just to the parties affected, and pursued in the ordinary manner and adapted to the end to be attained, with opportunity to be heard, when necessary, for the just protection of rights. Turpin v. Lemon, 187 U.S. 51.
The city of Dayton is endowed with the power to execute the laws relating to eminent domain. In so doing, its motive, reason, purpose, grounds and arguments for appropriating land must meet the constitutional proscriptions of due process of law and equal proteciton of the law.
Equal protection of the law means the protection of equal laws. It does not preclude class legislation or class action provided there is a reasonable basis for such classification. The prohibition against the denial of equal protection of the laws requires that the law shall have an equality of operation on persons according to their relation. So long as the laws are applicable to all persons under like circumstances and do not subject individuals to an arbitrary exercise of power and operate alike upon all persons similarly situated, it suffices the constitutional prohibition against the denial of equal protection of the laws. Senior v. Ratterman, 44 Ohio St. 661, Xenia v. Schmidt, 101 Ohio St. 437.
The effect of the prohibition is the prevention from depravation of equal and impartial justice under the law. In law, equality means in possessing the same rights and being liable to the same duties. The word, equal, implies not identity but duality. The use of one thing as the measure of another.
V
Reason has been defined as a motive or cause for an action. The purpose of an action is the effect that it is intended to produce, its motive is the inner impulse that sets it in motion and guides it. Grounds are the facts, data and so forth that the mind weighs in reaching a decision and argument is the logical demonstration of how these facts and data determine the decision.
It is true, at the inception of this lawsuit, the so-called blighted structure remained on the Keys' parcel, however, by the time litigation concluded, the structure was removed and the parcel converted into a parking lot, the same as the Lorenz property which was unconditionally exempted. The evidence is conclusive that Keys strove in every way to cooperate with the city and to abide by their procedures and requirements. The evidence is also conclusive that the city, in plain words, gave Keys the "run around." Furthermore, the court is of the opinion that the city did not act in good faith and the city was not impartial in the application and in the administration of their requirements and procedures. The city's final argument in coming to the necessity for the appropriation, had to do with satisfying a contractual obligation between the city and the single developer, Arthur Beerman.
Wherefore the court concludes that the city's reason for appropriating the lands of the defendants has not been explained and justified by the facts, circumstances, inducement and the like, together with the workings of the mind upon them. The internal and subjective elements acquired and inferred from the facts tend to abort the city's alleged purpose and motive. Furthermore, the external and objective elements acquired and inferred from the facts do not support the grounds and arguments of the city.
In other words, the execution of the city of its power of eminent domain demonstrates an invasion of private rights, a failure to conform with the natural and inherent principles of justice and a failure to distribute justice impartially.
The court further concludes that apart from the fact the constitutional rights of the defendants to be accorded due process of law and equal protection of the law were violated, the evidence failed to establish "necessity" within the meaning of the Ohio law for appropriating parcels for the purposes of urban renewal. That is, the parcel is not reasonably necessary to secure the end in view.
The court, therefore, determines the question of "the necessity for the appropriation" in favor of the defendants.
Judgment for defendants.