Aug 5, 2016

School district's eminent domain plan may hinge on "necessity" definition


Dublin City School District made headlines recently with the announcement of its plan to use eminent domain to appropriate the former Verizon building on Emerald Parkway and convert the building into a nontraditional high school.

The building was recently purchased by Emerald Parkway Valley Equity Group for $5.9 million. After the purchase, Emerald lined up sufficient tenants to fully lease the building, including one tenant interested in 70 percent of the available space. However, the district’s announcement led that major potential tenant to back out.

Dublin City Schools isn’t the only district whose expansion plans threaten commercial property. Upper Arlington City School District is rumored to have a potential plan to use eminent domain to expand existing school buildings by demolishing rental properties and a dental office.

These expansion plans raise the question of whether school districts are permitted to appropriate viable commercial properties for school purposes. The answer depends on the specific facts involved, but Ohio law is generally favorable to school districts.

Ohio Revised Code 3313.39 empowers school districts to use eminent domain. “[W]hen it is necessary, in the opinion of any board of education, to procure or enlarge: (A) any site for a building to be used for public school purposes whether as classrooms, auditorium, or for technical training, administrative, storage, or other educational purposes … the board may proceed to appropriate such property.”

Not only does the statute give school districts the discretion to determine whether a property is “necessary” for school purposes, but the law also sets a low bar for demonstrating necessity. Although an appropriation must be necessary for a public purpose, “necessary” means only that which is reasonably convenient or useful to the public. Absolute physical necessity is not required. Further, under Ohio Revised Code 163.09(B)(1)(a), the passage by a school board of a resolution declaring the necessity of an appropriation shift s the burden to the property owner to prove it is not necessary.

In the case of Dublin, the district selected the building to alleviate an overcrowding problem at its existing schools, rather than build a new school at a cost of at least $75 million. The district also reportedly chose the building over several other properties because of its central location and open floor plan. On July 11, the school board passed a resolution declaring the appropriation necessary. Only time – and the Franklin County Court of Common Pleas – will tell whether Emerald can save its valuable commercial property through a necessity challenge given these facts.

Property owners whose commercial properties are threatened by eminent domain should consult with qualified counsel at their earliest opportunity to preserve their rights and maximize their monetary recovery.

This article is intended solely to provide broad, general information, not legal advice. Readers should seek advice from a licensed attorney with regard to any specific legal issues. Statements or opinions expressed are those of the author and do not necessarily reflect those of the Columbus Bar Association, its officers, board, or staff.

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