Photo by Max Böhme on Unsplash
J.P. Burleigh, Associate Member, University of Cincinnati Law Review
I. Introduction
During the 19th century, Congress granted railroad companies rights of access to build and operate railroads across public lands.[1] After the Interstate Highway System was built, many railroad companies stopped operating and once-busy railroads fell into disuse.[2] The “rail-trail” movement began in the 1960s out of a simple idea: convert abandoned railroads into recreational trails.[3] More than 20,000 miles of trails for biking, walking, and more have been built since then.[4] This effort has prompted numerous legal disputes around the taking of private property. In 2014, the Supreme Court held that when the railroads abandoned tracks, any rights of access ceased; thus, the federal government did not retain any rights to abandoned railways on privately owned land.[5] The question facing the rail-trail movement today is whether governments can build trails by using eminent domain, the government’s authority to take private property for public use. This past year, one Ohio couple captured national attention on this issue.[6]
Mike and Barb Cameron own a farm in Mahoning County, Ohio that has been in Mike’s family for four generations.[7] The Camerons have grown crops, raised cattle, and made their home on the property for twenty-five years.[8] Fewer than one hundred yards from their house is an abandoned railroad bed, a slight depression in the land along which the Niles and Lisbon Branch of the Erie Railroad once ran.[9] The rails were removed in the 1980s[10] and the Camerons now own the entire rights to the property.[11] The railroad bed runs north-south through the middle of their 158 acre property.[12]
In November of 2018, Mill Creek Metroparks (“Mill Creek”) sued the Camerons in the Mahoning County Court of Common Pleas.[13] Mill Creek is a park district operating under Chapter 1545 of the Ohio Revised Code to build and supervise parks in northeastern Ohio.[14] The park district is asking the court to grant the park district a permanent easement along the former railbed. The Camerons would technically remain owners but Mill Creek would have a permanent right to use the railroad bed.[15] Mill Creek argues the easement can be created under the power of eminent domain.[16]
Mill Creek created the plan for this project in 1990 and has since secured close to $4 million in state and federal funding.[17] The existing stretch of the “hike and bikeway” opened between 2000 and 2001; it is a ten-foot wide paved surface for biking, hiking, rollerblading, and even cross-country skiing.[18] The organization plans to eventually pave the entire former railway and join it with the Great Ohio Lake-to-River Greenway, a planned trail that will stretch through four counties from Lake Erie to the Ohio River.[19] As of 2016, the Great Ohio Lake-to-River Greenway Coalition had raised $35 million and constructed 75 miles of the proposed 110-mile bikeway.[20] Mill Creek believes the trail will serve not only as valuable greenspace but also as “a link to history and culture,” a driver of economic growth, and an opportunity for recreation and improved health.[21]
The Camerons object to the easement which would divide their property in half.[22] They worry the easement would disrupt their farm’s operations which include allowing their cattle to graze freely.[23] They argue the easement will limit the movement of livestock and heavy machinery from one side of the property to the other and prevent them from hunting on their land.[24] They fear they could be found liable if they damage the trail or if trail users enter onto their property.[25] And they think it unfair that Mill Creek would get the rights to use the property, but the Camerons would continue to be taxed on ownership of the property.[26] The case is set for a jury trial this summer.[27] The suit is just one of nearly a dozen Mill Creek has filed against property owners since November 2018 to secure the rights for the proposed trail.[28]
The Camerons are not alone in fighting an attempt to build a trail across their property.[29] Property owners in Sioux City, Iowa and Swampscott, Massachusetts have engaged in years of expensive litigation to resist efforts to build trails on their property.[30] Some trail proponents see eminent domain as a necessary tool; the Sierra Club, for instance, believes using eminent domain is justified because bike trails improve health, create transportation options, and reduce the number of cars on the road.[31] On the other hand, in 2017, Wisconsin banned the use of eminent domain for recreational trails, including bikeways.[32] After the Cameron family’s story went public, similar legislation was introduced in the Ohio House of Representatives.[33] There are two big questions surrounding this controversy: is it legal for Mill Creek to take an easement on the Camerons’ property, and, if so, should it be?
II. Current Law
Park districts such as Mill Creek are led by park commissioners.[34] Those commissioners are empowered by section 1545.11 of the Ohio Revised Code to take private property:
The board of park commissioners may acquire lands either within or without the park district for conversion into forest reserves and for the conservation of the natural resources of the state, including streams, lakes, submerged lands, and swamplands, and to those ends may create parks, parkways, forest reservations, and other reservations and afforest, develop, improve, protect, and promote the use of the same in such manner as the board deems conducive to the general welfare. Such lands may be acquired by such board, on behalf of said district . . . by appropriation.[35]
The Ohio Supreme Court has held that this is a “broad and comprehensive” grant of power, allowing boards of park commissioners to take “any natural tract of land bearing a reasonable relation to these words.” [36]
This power is not unlimited, however. The Takings Clause of the Fifth Amendment to the Constitution requires governments to give “just compensation” when private property is taken for public use, including when taken under the power of eminent domain.[37] Early in the country’s history, many courts read the words “public use” to require that government or the public actually use the taken property.[38] Federal courts have broadened the idea of public use over the years to allow takings that merely provide some public benefit, such as redeveloping blighted neighborhoods, redistributing land, and economic development by a private group.[39] The grant of an easement on the Camerons’ land for the building of a public bike path is almost certainly acceptable under Fifth Amendment jurisprudence.
Ohio’s constitution also requires exercises of eminent domain be in service of a public use, but Ohio’s definition of “public use” is narrower than the federal understanding.[40] The Ohio Supreme Court has explained, “[t]he founders of our state expressly incorporated individual property rights into the Ohio Constitution in terms that reinforced the sacrosanct nature of the individual’s inalienable property rights . . . which are to be held forever inviolate.”[41] While the Takings Clause of the Ohio constitution and Fifth Amendment are nearly identical,[42] courts review eminent domain statutes with “heightened scrutiny” under the Ohio Constitution.[43] Further, while economic benefit can be considered in determining whether the property is being taken for a public use, economic benefit alone cannot satisfy Ohio’s public use requirement.[44]
Ohio also limits the use of eminent domain by statute.[45] The government must give the property owner notice of its intent to take the property and make a good faith offer to purchase the property in writing.[46] The taking must also be necessary.[47] The government has the burden of showing both public use and necessity.[48] The statute does not define “public use,” but does give examples of forbidden and permitted uses.[49] Takings solely for economic development are allowed only if a public entity retains possession of the property.[50] In contrast, takings for construction of roads and public parks are presumed to be public uses.[51] Courts have interpreted “necessary” to mean not just “absolute physical necessity” but also “reasonably convenient or useful to the public.”[52] If the applicable agency passes a resolution affirming the necessity of a taking, courts grant a presumption of necessity and the protesting property owner must show that the taking is not necessary.[53]
Courts faced with cases similar to that of the Camerons have upheld park districts’ efforts to take property for bike trails. Recreational trails are a valid use under park districts’ statutory power. In 2007, the Ohio Supreme Court held that “the board of park commissioners is authorized under R.C. 1545.11 to appropriate property for the construction and use of a recreational trail.”[54] Further, the Fifth District Court of Appeals has twice held that a bike path is a public use.[55] A bike path across the Camerons’ property thus almost certainly counts as a public use, so their only defense is to show that the park district’s easement is not necessary.
Mill Creek bears the burden of proving that taking the Camerons’ property is necessary to build the bike trail. If Mill Creek has passed a resolution that the taking is necessary, the burden of proof shifts to the Camerons. Mill Creek passed a resolution in 1993 stating “the public interest demanded” a bike path along the former railway.[56] The Camerons could argue that this does not show necessity because the resolution was so long ago and did not address the specific route across their property. Even if the bike path itself is necessary, the Camerons dispute routing the path through their property.[57] The road in front of the Camerons’ property has been used as a bike trail for twenty years which undermines the argument that crossing the Camerons’ property is necessary.[58] Alternatively, even if a path off of the road is necessary, the path could run along the road instead of through the middle of the Camerons’ property. Mill Creek claims that such a route would cross dozens of properties and would therefore be more expensive.[59] The Camerons are unlikely to win this argument because of the broad definition of necessity as “reasonably convenient.” For example, the Fifth District found a bike path was necessary because it would “provide connectivity and health benefits” and because the agency acted in good faith.[60] No evidence of bad faith on the part of Mill Creek has been introduced, so a judge will likely follow this precedent and find the bike path necessary. Under current law, the Camerons probably cannot stop Mill Creek from acquiring an easement across their property for the bike path.
III. Future Law
In response to the Mill Creek’s attempts to obtain easements across private properties, members of the Ohio House of Representatives have introduced legislation to limit taking private property for bike trails.[61] Last year, Representative Don Manning sponsored House Bill 288, which would prohibit taking private property to build recreational trails.[62] Eleven legislators co-sponsored the bill.[63] Michael Cameron, the trustees of Green Township where the Camerons reside, and several other affected property owners testified in support of H.B. 288 before the Ohio House Civil Justice Committee.[64] Several cities (including Cincinnati), park districts, and non-profits testified against the bill.[65] Under criticism for limiting eminent domain authority too much, the bill did not make it out of committee.[66]
This year, Representative Manning and Representative Don Hambley proposed a more moderate alternative, H.B. 476.[67] Instead of banning eminent domain for recreational trails altogether, H.B. 476 imposes limits on the use of eminent domain and allows for local governments to veto the taking.[68] Under H.B. 476, if a property owner objects in writing to a proposed taking of his or her property,[69] “[t]he legislative authority of the municipal corporation where the real property is located, or board of township trustees for the township where the real property is located, may veto the appropriation.”[70] In the Camerons’ case, such an amendment would save their property, as the trustees of Green Township are opposed to Mill Creek’s course of action.[71]
H.B. 288 might have gone too far in seeking an all-out ban on taking property for recreational trails. Bike trails and similar public projects provide important benefits to communities; prohibiting the government from appropriating land for that purpose might be unwise. H.B. 476 on the other hand, offers a more sensible approach by requiring the affirmation of the municipal legislature or board of township trustees. This adds an additional layer of protection for property owners while leaving the door open for taking land for bike trails if the community as a whole approves of the project. Especially because park district commissioners are not elected, H.B. 476 adds a healthy dose of democracy to ensure that eminent domain is being used responsibly in this context.
IV. Conclusion
The story of Mike and Barb Cameron is one that could become even more common in coming years. The push to create new recreational trails will lead to further disputes about how to acquire the necessary land. These controversies pit the public benefits of trails against the fundamental right of private property. Ohio should get ahead of this problem by adopting H.B. 476, allowing local communities a say in whether to take property for this purpose. Doing so will ensure that private property remains “forever inviolate” in Ohio.[72]
[1] Brandt Trust v. United States, 572 U.S. 93 (2014).
[2] American-Rails, The Decline of Rail Travel: Three Decades of Turmoil, https://www.american-rails.com/decline.html (last visited Mar. 21, 2020).
[3] Amy Kapp, Connectivity Evolution: Examining a Decade of Rails-to-Trails’ Impact, 2012-2020, Rails-to-Trails (Dec. 31, 2019), https://www.railstotrails.org/trailblog/2019/december/31/connectivity-evolution-examining-a-decade-of-rails-to-trails-impact-2010-2020/.
[4] Id.
[5] Brandt, 572 U.S. at 110.
[6] Rachel Wagoner, Mahoning County farmers fight eminent domain for bike trail, Farm and Dairy (Jul. 8, 2019), https://www.farmanddairy.com/news/mahoning-county-farmers-fight-eminent-domain-for-bike-trail/562277.html.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Hearing on H.B. 288 Before the Ohio H. Civil Justice Comm., 133rd Gen. Assemb. (statement of Michael Cameron, proponent).
[12] Id.
[13] Complaint, Bd. of Comm’rs. v. Cameron, et al., 2018 CV 02795 (Mahoning Cty. C.P. Nov. 20, 2019).
[14] Id. at ¶ 1.
[15] Id. at ¶ 14.
[16] Id.
[17] Stephen L. Avery and Justin Rogers, Mill Creek Metroparks Bikeway, Mill Creek Metroparks (Apr. 11, 2016) http://www.millcreekmetroparks.org/wp-content/uploads/2016/04/MetroParks-Bikeway-Board-Presentation-4.11.16.pdf.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] Cameron, supra note 11.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Order of Magistrate, Bd. of Comm’rs., 2018 CV 02795 (Mahoning Cty. C.P. Feb. 20, 2020).
[28] Wagoner, supra note 6.
[29] Steven Malanga, We’re From the Government and We’re Here to Build a Bike Path, Wall Street Journal (Feb. 14, 2019, 5:19 PM) https://www.wsj.com/articles/were-from-the-government-and-were-here-to-build-a-bike-path-11581718779.
[30] Id.
[31] Mackenzie Christman, Why Can’t Eminent Domain Help Build Bike Paths?, Sierra Club (Oct. 7, 2019) https://www.sierraclub.org/wisconsin/blog/2019/10/why-cant-eminent-domain-help-build-bike-paths.
[32] Wis. Stat. 32.015.
[33] H.B. 288, 133rd Ohio Gen. Assemb. (2019); H.B. 476, 133rd Ohio Gen. Assemb. (2020).
[34] Ohio Rev. Code Ann. § 1545.05-28.
[35] Ohio Rev. Code Ann. § 1545.11 (emphasis added).
[36] Snyder v. Board of Park Comm’rs, 125 Ohio St. 336, 340 (Ohio 1932).
[37] Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 241 (1897) (applying the Fifth Amendment to the states through the Fourteenth Amendment).
[38] Kelo v. City of New London, 545 U.S. 469, 506-515(2005) (O’Connor, J., dissenting).
[39] Id.
[40] City of Norwood v. Horney, 853 N.E.2d 1115,1142-43 (Ohio 2005).
[41] Id. at 1129.
[42] “[W]here private property shall be taken for public use, a compensation therefor [sic] shall first be made in money.” Ohio Const., Art I § 19.
[43] Norwood, 853 N.E.2d at 1123.
[44] Id.
[45] Ohio Rev. Code Ann. § 163.01-63.
[46] Ohio REv. Code Ann § 163.04.
[47] “No agency shall appropriate real property except as necessary and for a public use. In any appropriation, the taking agency shall show by a preponderance of the evidence that the taking is necessary and for a public use.” Ohio Rev. Code Ann. § 163.021(A).
[48] Id.
[49] Cox v. State, 2016 WL 4507779 (N.D. Ohio 2016).
[50] Ohio Rev. Code Ann. § 163.01(H)(1).
[51] Ohio Rev. Code Ann. § 163.01(H)(2)
[52] Bd. of Trs. of Sinclair Cmty. College Dist. v. Farra, 2010-Ohio-568, ¶ 37 (Ohio Ct. App. 2010).
[53] Ohio Rev. Code Ann. § 163.09(B)(1)(a).
[54] State ex rel. Coles v. Granville, 116 Ohio St. 3d 231, ¶ 29 (Ohio 2007).
[55] City of Dublin v. Beatley, 2018-Ohio-3354, ¶¶ 21-24, 35-37 (Ohio Ct. App. 2018); City of Dublin v. RiverPark Grp., LLC, 2019-Ohio-1790, ¶¶ 11-29 (Ohio Ct. App. 2019).
[56] Complaint at ¶ 6, Bd. of Comm’rs., 2018 CV 02795.
[57] Statement of Michael Cameron, supra note 11.
[58] Hearing, supra note 11 (statement of Green Township Trustees, proponent).
[59] Wagoner, supra note 6.
[60] Beatley, 2018-Ohio-3354 at ¶ 34.
[61] Wagoner, supra note 6.
[62] H.B. 288, 133rd Ohio Gen. Assemb. (2019).
[63] Id.
[64] Hearing, supra note 11 (statements of Michael Cameron, Green Township Trustees, Alan Dickerhoof, and David roller, proponents).
[65] Hearing, supra note 11 (statements of City of Cincinnati, City of Upper Arlington, Cleveland Metroparks, Columbus and Franklin County Metroparks, Ohio Bicycle Federation, and Tristate Trails, opponents).
[66] Larry Limpf, Rec trails subject of eminent domain bill, The Press (Jan. 31, 2020, 4:00 PM) https://presspublications.com/content/rec-trails-subject-eminent-domain-bill.
[67] H.B. 476, 133rd Ohio Gen. Assemb. (2020).
[68] Id.
[69] Id.
[70] Id.
[71] Statement of Green Township Trustees, supra note 58.
[72] City of Norwood v. Horney, 853 N.E.2d 1115,1129 (Ohio 2005).
