Ohio high court to decide local eminent-domain issue

By Marc Kovac | June 20, 2012 at 12:05a.m.

COLUMBUS

The Ohio Supreme Court will decide whether a Trumbull County city has authority to take property owned by a railroad company for use as a park or if the taking is prohibited under federal transportation laws.

The state’s high court heard oral arguments Tuesday in the case pitting Girard against the Youngstown Belt Railway Co. Justices have no set timetable to rule on the case.

In 2006, Girard filed an eminent-domain action against the company as part of the city’s efforts to expand its park land, hoping to add “playgrounds, parkways, greenery and park expansion to river frontage and provide” a link for the Lake Erie and Ohio River bicycle paths, according to documents. The city wanted 41 acres of a 55-acre parcel, leaving tracks and right of way to ensure rail traffic could continue.

But the rail company responded that federal interstate commerce laws pre-empted the taking and challenged the city in court.

In arguments before the court, legal counsel for the city said the eminent- domain action did not “unreasonably interfere” with railroad operations and that Youngstown Belt Railway had already entered a contract to sell the site to a landfill company.

“They were going to sell the whole thing, along with the tracks,” said Frank Bodor, legal counsel for Girard. “They offered to sell it at $250,000, and there was no reservations, no conditions whatsoever in the sale. ... They would have divested themselves entirely of every element or property rights in that case.”

But Tom Lipka, representing the railway company, said his client no longer plans to sell the land in question after the purchaser was unable to obtain a permit from the city to operate a landfill there.

“There was significant testimony in the record that the railroad has future expansion plans for this area for a variety of reasons, which I won’t go into today,” Lipka said.

Michael Stokes, representing Ohio and appearing before the court as a neutral party, said the case could have significant ramifications for the state.

“Pre-emption has to be applied narrowly because it has really big consequences,” Stokes said, adding, “What if the property were used for disposal of something else, like fracking fluid, which is not federally regulated? Would the state of Ohio be unable to regulate that activity just because the fracking fluid was delivered by rail car or just because [the property] was owned by a railroad?

“Our position is that Congress did not intend to create islands of property that were immune from state regulation just because a railroad owns them or just because a railroad delivers to them,” he said.