Ohio may ban use of eminent domain for rec trails

A pair of Republican representatives want to rewrite Ohio’s rules for how and when governments can take your property to build recreational trails.

They say the changes, proposed in House Bill 64, would protect landowners and increase transparency in the process. But municipalities say the new rules could make it harder for them to develop recreational trials and other enhancements that lure people to their cities.

Governments, large and small, can “take” private property through a process called eminent domain.

This right stems from the Takings Clause in the Fifth Amendment to the Constitution, which lets governments force the sale or easement of private land for “public good.” Usually, that means a road or highway, but Ohio allows local governments including park districts - to use eminent domain for recreational trails.

Each state’s process is different, but the general rule for eminent domain is that landowners must be fairly compensated. House Bill 64 would modify how that process works in Ohio.

If passed, the bill would require all monetary offers from the “taking agency” to be in writing, prohibit governments from going lower than an amount previously offered for a property, raise the legal burden of proof for taking a piece of land and eliminate the ability to use eminent domain for recreational trails like bike paths or running trails.

“It’s not to hinder anyone,” said bill sponsor Rep. Rodney Creech, R-West Alexandria. “But we’re making sure people are treated fairly.”

The Ohio Farm Bureau Federation supports HB 64 because it believes the Buckeye State lags behind its neighbors in protections for property owners.

“We just really want to make sure that landowners have a fair shake in this process,” said Leah Curtis, an attorney with the farm bureau. “It can become a really stressful and really scary process for landowners.”

For example, a recreational trail that’s built along an old railroad line impacts more than just the total acreage a person owns when it bisects their property.

“You may not be able to take equipment across that trail. You may not be able to take your cattle across there anymore. Our members worry about trespassers, litter and the safety of their animals,” Curtis said.

That’s why the bureau supports ending eminent domain for bike paths. These kinds of trails, Curtis said, should only be constructed when the farmer is on board.

“I’m not against bikers or bike paths, but I think to take someone’s property away so someone else can ride a bike that’s not the American way,” Creech said. “That’s not how we do things.”

Forcing the sale of private property isn’t typical for recreational trails in Ohio, but it does happen.

“Eminent domain is kind of like raising taxes,” Ohio Municipal League Director Kent Scarrett said. “It’s the last thing (cities and other government entities) want to do.”

Still, he thinks it should be an option for local governments that are building recreational trails.

“The preemption is our biggest concern,” Scarrett said.

One reason is that he thinks the legislation interferes with home rule, the right of local governments to make their decisions. The second is that bike paths and hiking trails are “hugely popular” with residents.

“Work from home means we’re competing for individuals, not necessarily the business itself,” Scarrett said. “And the trail systems are hugely popular now, especially since the pandemic ... We need to create spaces we know are valuable to the current and future workforce and keep families staying in Ohio.”

The third reason Scarrett wants to keep eminent domain for recreational trails deals is for rails-to-trails programs that convert old railroad lines into public paths. Some of that land is in private hands, but other sections still belong to railroad companies.

“I don’t want to misspeak or say they are not honest brokers, but there seems to be a lack of transparency when they engage with homeowners and our communities,” Scarrett said.

The threat of eminent domain can bring those companies to the table and force them to accept reasonable offers for their land, he said.

Ohio’s Supreme Court is expected to hear a case about eminent domain in April that centers around whether a northeast Ohio parks department can use eminent domain to build a bike path.

Mill Creek MetroParks wants 6.5 miles of right-of-way through several pieces of property in Green Township, but the landowners don’t want to sell. The park system filed a lawsuit to “appropriate the land” in 2019.

Lower courts ruled that Mill Creek did not give a legal reason for acquiring the easements.

Ohio law says that park districts can take land for the conversion of forest reserves and conservation of natural resources, and the Seventh District Court of Appeals ruled that extending a bike path didn’t meet either criteria.