{¶ 1} In case Nos. 2005-1210 and 2005-1211, we decide the constitutionality of a municipality’s taking of an individual’s property by eminent domain and transferring the property to a private entity for redevelopment. In doing so, we must balance two competing interests of great import in American democracy: the individual’s rights in the possession and security of property and the sovereign’s power to take private property for the benefit of the community.
{¶ 2} In case Nos. 2005-0227 and 2005-0228, we determine the constitutionality of the provision in R.C. 163.19 prohibiting a court from enjoining the taking and using of property appropriated by the government and transferred to a private party for redevelopment, after the compensation for the property has been deposited with the court but prior to appellate review of the taking.
{¶ 3} Our consideration does not take place in a vacuum. We recognize that eminent domain engenders great debate.
{¶ 4} Appropriation cases often represent more than a battle over a plot of cold sod in a farmland pasture or the plat of municipal land on which a building sits. For the individual property owner, the appropriation is not simply the seizure of a house. It is the taking of a home — the place where ancestors toiled, where families were raised, where memories were made. Fittingly, appropriations are scrutinized by the people and debated in their institutions.
{¶ 5} In reviewing an appropriation similar to that at issue here, a sharply divided United States Supreme Court recently upheld the taking over a federal Fifth Amendment challenge mounted by individual property owners. Kelo v. New London (2005),
{¶ 6} In response to that invitation in Kelo, Ohio’s General Assembly unanimously enacted 2005 Am.Sub.S.B. No. 167. The legislature expressly noted in the Act its belief that as a result of Kelo, “the interpretation and use of the state’s eminent domain law could be expanded to allow the taking of private property that is not within a blighted area, ultimately resulting in ownership of that property being vested in another private person in violation of Sections 1 and 19 of Article I, Ohio Constitution.” Section 4(A), 2005 Am.Sub.S.B. No. 167. The Act created a task force to study the use and application of eminent domain in Ohio and imposed “a moratorium on any takings of this nature by any public body until further legislative remedies may be considered.”
{¶ 7} We now turn to the cases pending before us, which raise social and legal issues similar to those in Kelo.
{¶ 8} The appellants’ property was appropriated by the city of Norwood after the city determined that the appellants’ neighborhood was a “deteriorating area,” as that term is defined in the provisions governing appropriations in the Codified Ordinances of the City of Norwood (“Norwood Code”). Although, as we shall discuss below, we have held that a city may take a slum, blighted, or deteriorated property for redevelopment, State ex rel. Bruestle v. Rich (1953),
{¶ 9} We hoM that although economic factors may be considered in determining whether private property may be appropriated, the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution.
{¶ 10} We also hold that the void-for-vagueness doctrine applies to statutes that regulate the use of eminent-domain powers. Courts shall apply heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers. Applying that standard, we hold that Norwood’s use of “deteriorating area” as a standard for appropriation is void for vagueness. We further hold that the use of the term “deteriorating area” as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.
{¶ 11} Finally, we hold that the provision in R.C. 163.19 that prohibits a court from enjoining the taking and using of property appropriated by the government after the compensation for the property has been deposited with the court but prior to appellate review of the taking violates the separation-of-powers doctrine and is therefore unconstitutional. We further hold that the unconstitutional portion of R.C. 163.19 can be severed from the rest of the statute, and, accordingly, the remainder of the statute remains in effect.
I. Relevant Background
A
Norwood and Its Denizens
{¶ 12} The city of Norwood is a modern urban environment. Surrounded by the city of Cincinnati, Norwood was once home to several manufacturing plants and businesses that provided a substantial tax base for the municipality. Despite that industrial component, Norwood was, and for many remains, a desirable place to live. Norwood’s neighborhoods were composed of traditional single-family houses and duplexes that provided homes to generations of families and many individuals.
{¶ 14} In the 1960s, property was appropriated from the appellants’ neighborhood and used in the construction of a major highway — Interstate 71 — through Cincinnati. In the neighborhoods affected, numerous homes were razed and. front yards diminished in order to make way for the access roads and ramps to the highway. The streets became busier, creating safety problems for residents who had to back onto busy roadways from their driveways. Residential roads that once ran between major thoroughfares were bisected by the new highway, creating dead-end streets.
{¶ 15} Over time, businesses arose in places where houses once stood. The neighborhood became less residential and more commercial. Other changes in the neighborhood’s character followed. Traffic increased dramatically due to motorists seeking the highway and businesses in the area. Noise increased, and light pollution became more prevalent.
{¶ 16} The parties vehemently disagree as to the extent to which these changes adversely affected the physical functionality, aesthetic appeal, and quality of living in the neighborhood. There is no disagreement, however, that the property held commercial value and that the proposed plan for development would raise money for the city.
{¶ 17} A private, limited-liability company, Rookwood Partners, Ltd. (“Rook-wood”), entered discussions with Norwood about redeveloping the appellants’ neighborhood. The preliminary plans for the development call for the construction of more than 200 apartments or condominiums and over 500,000 square feet of office and retail space (all of which would be owned by Rookwood), as well as two large public-parking facilities (which would be owned by Norwood) with spaces for more than 2,000 vehicles. The city expects the redeveloped area to result in nearly $2,000,000 in annual revenue for Norwood.
{¶ 18} Norwood, operating with a deficit, was unable to fix the problems or redevelop the appellants’ neighborhood on its own, and thus city council was interested in the project. Discussions between Norwood and Rookwood culminated in a redevelopment contract in which Rookwood agreed to reimburse the city for the expenses of the project, including the costs arising from any need to use eminent domain to appropriate the property necessary for the project.
{¶ 19} Rookwood preferred that Norwood acquire the property needed for the project through eminent domain, but Norwood resisted. It encouraged Rook-
{¶ 20} Rookwood was largely successful; it secured acquisition agreements from a substantial majority of the owners of the property necessary to complete the project. The appellants, however, refused to sell.
{¶ 21} Because the appellants refused to sell their property, Rookwood asked Norwood to appropriate the appellants’ properties and transfer them to Rook-wood. Rookwood, in turn, agreed to raze the existing structures (including the appellants’ homes), reconfigure the streets, and redevelop the area.
B
The Takings
{¶ 22} Pursuant to the Norwood Code, an urban-renewal study must be completed before the city can institute eminent-domain proceedings.
{¶ 23} After public hearings and town meetings were held and the local planning commission recommended approval of the redevelopment plan, Norwood City Council passed a series of ordinances adopting the plan and authorizing the mayor to enter the redevelopment agreement with Rookwood and to appropriate the appellants’ property. The city then filed complaints against the appellants to appropriate their properties.
{¶ 24} At trial, Norwood relied on the testimony of KKG employees to support its conclusion that the appellants’ neighborhood was deteriorating. KKG employees testified that the neighborhood was not a slum, blighted, or deteriorated area as that term is defined in the Norwood Code. The trial court found that the critical evidence presented by Norwood conflicted as to the conclusions to be drawn about the neighborhood. In her findings of fact, the trial judge noted that although one KKG witness opined that the neighborhood was blighted and in a deteriorating condition, he also admitted that the area was not a deteriorated area as that term is defined by the Norwood Code. The trial judge also found that another KKG witness testified that the neighborhood was neither a slum nor blighted or deteriorated and was not on its way to becoming blighted and that he could not conclude that the neighborhood was conducive to ill health, transmission of disease, or juvenile delinquency and crime, or that it was detrimental to public health, safety, morals or general welfare. He testified that he believed that at best, the neighborhood was deteriorating as a single-family-residence neighborhood and that the quality of life of the neighborhood’s residents was decreasing. The trial judge similarly found that Norwood’s planning director testified only that the neighborhood “probably would” deteriorate or was in danger of deteriorating into a blighted area.
{¶ 25} After a hearing that lasted several days, the trial court rendered findings of fact and conclusions of law regarding whether the taking was lawful. The court found that KKG’s study of the neighborhood contained numerous flaws and errors. Although the court did not enumerate all of the flaws and errors, it specifically noted that KKG had counted several negative factors twice, erroneously included factors that should not have been considered, and improperly
{¶ 26} Significantly, the court found that Norwood had abused its discretion insofar as it had found that the neighborhood was a “slum, blighted or deteriorated area.” That conclusion was based on the paucity of evidence supporting the necessary finding that a “majority of structures” in the neighborhood were conducive to ill health and crime, detrimental to the public’s welfare, or otherwise satisfied the criteria of a slum, blighted, or deteriorated area. The court concluded, however, that there was no showing that Norwood had abused its discretion in finding that the neighborhood was a “deteriorating area.”
{¶27} The latter conclusion seems to have been driven by the deferential standard that the trial court believed it was required to use in evaluating Norwood’s conclusion:
{¶ 28} “The issue is whether [Norwood] abused its discretion in finding that the area was in danger of deteriorating into a blighted area. The Court does not need to conclude that it would reach the same judgment as Norwood, but only that there was a sound reasoning process and that Council did not abuse its discretion. The Court finds that this is a more difficult issue [than the issue of whether the neighborhood was a slum, blighted, or deteriorated area]. On the one hand, it is undisputed that all the buildings in the area are in good to fair condition, generally well maintained with no tax delinquencies, none were ‘dilapidated,’ and none were ‘obsolete.’ The KKG principal responsible for the [Urban-Renewal] Plan concluded that the area was not in danger of deteriorating into a blighted area. He did testify that the area was deteriorating as a single family neighborhood; however, this is not the test. The area must be in danger of deteriorating into a blighted area. On the other hand, it is undisputed that there are safety issues and traffic concerns causing unsafe conditions (especially with dead-end streets with little or no turnaround for emergency vehicles), a predominance of inadequate street layout, faulty lot layout, and diversity of ownership, which in combination are in the City Council’s judgment causing the area to be deteriorating. There was evidence that the conditions could lead to impairment of sound growth, an economic liability and a menace to the public welfare. The
■ {¶ 29} “Judicial deference to City Council’s decisions is required because in our system of government, legislatures are better able to assess what public purpose should be advanced by the exercise of eminent domain.” (Emphasis added and footnote deleted.)
{¶ 30} Having found that the taking was justified because of the deteriorating condition of the neighborhood, the trial court returned the causes (which had been consolidated) to their originally assigned judges to hold trials on the issue of compensation. After the juries rendered their verdicts on the value of appellants’ properties, Norwood deposited with the court the full amount awarded in each valuation action. Norwood obtained the titles to the properties and transferred them to Rookwood, which began demolishing the houses in the neighborhood.
{¶ 31} The trial court refused to enjoin Rookwood from using or damaging the property pending appeal, and a divided court of appeals denied a stay of the trial court’s judgment, finding that R.C. 163.19 prohibited such relief. Norwood v. Horney (Jan. 19, 2005), 1st Dist. No. C-040683; Norwood v. Gamble (Jan. 19, 2005), 1st Dist. No. C-040783. Upon appeal of those rulings, we accepted the causes and issued orders preventing the appellees from destroying or otherwise altering the properties pending our review of the taking.
{¶ 32} With this background in mind, we turn to the law relevant to these cases.
II. Constitutional Considerations
{¶ 33} ‘Wherever there is sovereignty, whether in the old world, where it is held in trust for the people by things called kings, or in this country where the people wear it upon their own shoulders, two great and fundamental rights exist. The right of eminent domain in all the people, and the right of private.property in each. These great rights exist over and above, and independent of all human conventions, written and unwritten.” Proprietors of the Spring Grove Cemetery v. Cincinnati, Hamilton & Dayton RR. Co. (Super.1849),
A
Individual Property Rights
{¶ 34} The rights related to property, i.e., to acquire, use, enjoy, and dispose of property, Buchanan v. Warley (1917),
{¶ 35} Believed to be derived fundamentally from a higher authority and natural law, property rights were so sacred that they could not be entrusted lightly to “the uncertain virtue of those who govern.” Parham v. Justices of Decatur Cty. Inferior Court (Ga.1851),
{¶ 36} “The right of private property is an original and fundamental right, existing anterior to the formation of the government itself; the civil rights, privileges and immunities authorized by law, are derivative — mere incidents to the political institutions of the country, conferred with a view to the public welfare, and therefore trusts of civil power, to be exercised for the public benefit. * * * Government is the necessary burden imposed on man as the only means of securing the protection of his rights. And this protection — the primary and only legitimate purpose of civil government, is accomplished by protecting man in his rights of personal security, personal liberty, and private property. The right of private property being, therefore, an original right, which it was one of the primary and most sacred objects of government to secure and protect, is widely and essentially distinguished in its nature, from those exclusive political rights and special privileges * * * which are created by law and conferred upon a few * * *. The fundamental principles set forth in the bill of rights in our constitution, declaring the inviolability of private property, * * * were evidently designed to protect the right of private property as one of the primary and original objects of civil society * * (Emphasis sic.) Bank of Toledo,
{¶ 38} Ohio has always considered the right of property to be a fundamental right. See, e.g., Reece v. Kyle (1892),
B
The State’s Power of Eminent Domain
{¶ 39} Like the individual’s right to property, the state’s great power to seize private property predates modern constitutional principles. Understood as “the offspring of political necessity,” Kohl v. United States (1875),
{¶40} There is an inherent tension between the individual’s right to possess and preserve property and the state’s competing interests in taking it for the communal good. Mindful of that friction and the potential for misuse of the eminent-domain power, James Madison’s proposed draft of the Takings Clause included two equitable limitations on its use that were eventually incorporated into the Fifth Amendment:
{¶ 41} Similarly, almost every state constitution eventually included provisions related to eminent-domain powers. Stoebuck, 47 Wash.L.Rev. at 554-555. Both the Northwest Ordinance and the Ohio Constitution
{¶ 43} It is axiomatic that the federal and Ohio constitutions forbid the state to take private property for the sole benefit of a private individual, O’Neil v. Summit Cty. Bd. of Commrs. (1965),
{¶ 44} Despite such commanding language, however, the concept of public use has been malleable and elusive. As eminent-domain doctrine developed over the years, understanding of the term “public use” often varied greatly, leaving case law in “ ‘doctrinal and conceptual disarray’ ” and causing uncertainty for attorneys and jurists. Meltz et al., The Takings Issue, supra, at 8, quoting Andrea Peterson, The Takings Clause: In Search of Underlying Principles: Part I — A
{¶ 45} In America’s nascent period, there was an abundance of unclaimed land, limited government activity, and little controversy over the use of eminent domain to develop land and natural resources. The Public Use Limitation on Eminent Domain: An Advance Requiem (1949), 58 Yale L.J. 599, 600; Philip Nichols Jr., The Meaning of Public Use in the Law of Eminent Domain (1940), 20 B.U.L.Rev. 615, 617. Id. When takings occurred, they were rarely believed to be unwarranted. Typically, the appropriation was of obvious necessity and had-clear, palpable benefits to the public, as in cases in which the property was taken for roadways and navigable canals, government buildings, or other uses related to the protection and defense of the people. See, e.g., Cooper,
{¶ 46} The early legal authority for the rare challenge to such takings was also circumscribed. Before the Civil War and the adoption of the Fourteenth Amendment, the federal courts held the Fifth Amendment inapplicable to the states. See, e.g., Barron v. Mayor & Baltimore City Council (1833),
{¶ 47} Although the takings were occasionally challenged in state courts, only in rare instances did the courts interfere. See, e.g., Buckingham,
' {¶ 48} As America shifted from an agrarian society to an industrialized and increasingly urban one, the economy grew. Social policy and legal philosophy fed more probing inquiries into the nature, scope, and application of all of the sovereign powers, including eminent domain. The takings doctrine was used
{¶ 49} By the mid-19th century, there was some movement within the state courts to limit broad interpretations of public benefit and to more strongly guard individual property rights. See, e.g., Pittsburg, Wheeling & Kentucky RR. Co. v. Benwood Iron-Works (1888),
{¶ 50} By the end of the 19th century, the federal courts had established that the Due Process Clause of the Fourteenth Amendment endowed them with authority to review state takings, see, e.g., Missouri Pacific Ry. Co. v. Nebraska (1896),
{¶ 51} The broader concept of public use set forth in these cases eventually dominated and became entrenched in early 20th-century eminent-domain jurisprudence. In this view, the fact that an “incidental benefit” flowed to a private actor was not a critical aspect of the analysis (even if that benefit was significant), provided that there was a clear public benefit in the taking. See Nichols, 20
{¶ 52} Central to the broad construction of public use was the courts’ understanding that any workable definition of public use in an industrial age had to be “capable of meeting new conditions and improvements, and the ever-increasing needs of society.” Tanner v. Treasury Tunnel, Mining & Reduction Co. (1906),
{¶ 53} “[W]e do not desire to be understood by this decision as approving of the broad proposition that private property may be taken in all cases where the taking may promote the public interest and tend to develop the natural resources of the state. We simply say that in this particular case, and upon the facts stated in the findings of the court, and having reference to the conditions already stated, we are of the opinion that the use is a public one, although the taking of the right of way is for the purpose simply of thereby obtaining the water for an individual, where it is absolutely necessary to enable him to make any use whatever of his land, and which will be valuable and fertile only if water can be obtained. Other landowners adjoining the [beneficiary of the taking], if any there are, might share in the use of the water by themselves taking the same proceedings to obtain it, and we do not think it necessary, in order to hold the use to be a public one, that all should join in the same proceeding, or that a company should be formed to obtain the water.”
{¶ 54} Thus, rather than forging a new notion of public use, Clark is more properly seen as an extension of the court’s decision in Fallbrook Irrigation Dist. v. Bradley (1896),
{¶ 55} The doctrinal evolution of eminent domain thus reflects judicial understandings that the public-use test required flexibility and consideration of diverse local conditions rather that rigid, uniform application. See, e.g., Pontiac Improvement Co. v. Bd. of Commrs. of Cleveland Metro. Park Dist. (1922),
{¶ 56} While broad conceptualizations of public use evolved during the first decades of the 20th century, civic and government leaders became increasingly concerned with living conditions in urban areas and the array of social problems caused by the lack of adequate and safe, affordable housing in cities. The federal government eventually enacted sweeping legislation in an attempt to ameliorate some of those concerns. See, generally, State ex rel. Ellis v. Sherrill (1940),
{¶ 57} In this paradigm, the concept of public use was altered. Rather than furthering a public benefit by appropriating property to create something needed in a place where it did not exist before, the appropriations power was used to destroy a threat to the public’s general welfare and well-being: slums and blighted or deteriorated property. As set forth in a seminal ease on such actions:
{¶ 58} “The public evils, social and economic, of [unwholesome] conditions [in the slums], are unquestioned and unquestionable. Slum areas are the breeding places of disease which take toll not only from denizens, but, by spread, from the inhabitants of the entire city and state. Juvenile delinquency, crime, and immorality are there born, find protection, and flourish. Enormous economic loss results directly from the necessary expenditure of public funds to maintain health
{¶ 59} Historic notions equating physical, moral, and social illnesses with slums and blighted areas were reinforced. The term “blight” itself, borrowed from science and connoting an organism that promotes disease, became synonymous with urban decay, and courts were soon invoking the language of disease. See, e.g., Berman v. Parker (1954),
{¶ 60} But to some they also signaled an almost unbridled expansion of the notion of public use, which led commentators to suggest that the public-use
{¶ 61} Inherent in many decisions affirming pronouncements that economic development alone is sufficient to satisfy the public-use clause is an artificial judicial deference to the state’s determination that there was sufficient public use. Similarly, in the cases before us, the trial and appellate courts below seem to have been mistaken regarding the scope of review to be employed.
{¶ 62} The trial court properly found an abuse of discretion in Norwood’s finding that the area targeted for redevelopment was a slum or a blighted or deteriorated area. But notwithstanding what seems to have been a significant question about whether the taking of the neighborhood could be based on its designation as a “deteriorating area,” the trial court appears to have felt constrained by its interpretation of prior cases, stating that judicial review of appropriations is limited and must be deferential to the municipality. In reviewing that decision, the appellate court repeatedly framed its inquiries as whether Norwood abused its discretion by finding that the area was blighted or in danger of deteriorating into a blighted area — inquiries that it answered negatively after applying broad deference and liberal interpretation to Norwood’s conclusions.
{¶ 63} The trial and appellate courts correctly stated that, absent a showing of abuse of discretion, deference was due to the city’s determination that the area was blighted and deteriorated. (And although deference is certainly due to such findings, it is not absolute deference — as evidenced by the trial judge’s correct
{¶ 64} The use of “deteriorating area” as a standard for a taking has never been adopted by this court, but the trial court apparently believed that deference must be given to a city’s conclusion that a taking is proper. In affirming the trial court’s judgment, the appellate court engaged in a limited independent analysis, noting that “[w]here the exercise of eminent domain is rationally related to a conceivable public purpose, the United States Supreme Court has never held a compensated taking to be prohibited by the public-use clause.”
{¶ 65} In addressing the meaning of the public-use clause in Ohio’s Constitution, we are not bound to follow the United States Supreme Court’s determinations of the scope of the Public Use Clause in the federal Constitution, Hathcock,
{¶ 66} Although there is merit in the notion that deference must be paid to a government’s determination that there is sufficient evidence to support a taking in a case in which the taking is for a use that has previously been determined to be a public use, see Kelo, 545 U.S. at-,
{¶ 67} Despite the relative reluctance of courts to intervene in determinations that a sufficient public benefit supported the taking, the separation-of-powers doctrine “would be unduly restricted” if the state could invoke the police-power to virtually immunize all takings from judicial review. See United States ex rel. Tennessee Valley Auth. v. Welch (1946),
{¶ 68} As the Supreme Court of Illinois has observed, “The Constitution and the essential liberties we are sworn to protect control. * * * While we do not question the legislature’s discretion in allowing for the exercise of eminent domain power, ‘the government does not have unlimited power to redefine property rights.’ Loretto v. Teleprompter Manhattan CATV Corp.,
{¶ 69} There can be no doubt that our role — though limited — is a critical one that requires vigilance in reviewing state actions for the necessary restraint,
{¶ 70} The scrutiny by the courts in appropriation cases is limited in scope, but it clearly remains a critical constitutional component. The sovereign’s right to take property may be conferred by the legislature on municipalities, which enjoy broad discretion in determining whether a proposed taking serves the public. But it is for the courts to ensure that the legislature’s exercise of power is not beyond the scope of its authority, and that the power is not abused by irregular or oppressive use, or use in bad faith. Pontiac Improvement Co.,
{¶ 71} A court’s independence is critical, particularly when the authority for the taking is delegated to another or the contemplated public use is dependent on a private entity. In such cases, the courts must ensure that the grant of authority is construed strictly and that any doubt over the propriety of the taking
{¶ 72} Similarly, when the state takes an individual’s private property for transfer to another individual or to a private entity rather than for use by the state itself, the judicial review of the taking is paramount. A primordial purpose of the public-use clause is to prevent the legislature from permitting the state to take private property from one individual simply to give it to another. Such a law would be a flagrant abuse of legislative power, see Calder v. Bull (1798),
{¶ 73} As Justice O’Connor correctly discerned in her analysis of the taking in Kelo, when the state takes an individual’s property and gives it to another based solely on the economic gain afforded by the transfer, the “private benefit and [the] incidental public benefit are, by definition, merged and mutually reinforcing.” 545 U.S. at-,
{¶ 74} Given the individual’s fundamental property rights in Ohio, the courts’ role in reviewing eminent-domain appropriations, though limited, is important in
{¶ 75} Although we have permitted economic concerns to be considered in addition to other factors, such as slum clearance,
{¶ 76} Rather, we find that the analysis by the Supreme Court of Michigan in Hathcock,
{¶ 77} “Every business, every productive unit in society, * * * contribute^] in some way to the commonwealth. To justify the exercise of eminent domain solely on the basis of the fact that the use of that property by a private entity seeking its own profit might contribute to the economy’s health is to render impotent our constitutional limitations on the government’s power of eminent domain. Pole-town’s ‘economic benefit’ rationale would validate practically any exercise of the power of eminent domain on behalf of a private entity. After all, if one’s
{¶ 78} Our understanding of the individual’s fundamental rights in property, as guaranteed by the Ohio Constitution and our consistent holdings throughout the past two centuries that a genuine public use must be present before the state invokes its right to take, is better reflected by Hathcock’s holdings that economic development by itself is not a sufficient public use to satisfy a taking. Although economic benefit can be considered as a factor among others in determining whether there is a sufficient public use and benefit in a taking, it cannot serve as the sole basis for finding such benefit. Id. See, also, Sweetwater Valley Civic Assn. v. Natl. City (1976),
{¶ 79} Eminent domain is a power of last resort for the good of the public; it “is not simply a vehicle for cash-strapped municipalities to finance community improvements.” Beach-Courchesne v. Diamond Bar (2000),
(¶ 80} We hold that an economic or financial benefit alone is insufficient to satisfy the public-use requirement of Section 19, Article I. In light of that holding, any taking based solely on financial gain is void as a matter of law, and the courts owe no deference to a legislative finding that the proposed taking will provide financial benefit to a community.
C
The Void-for-Vagueness Doctrine
{¶ 81} Due process demands that the state provide meaningful standards in its laws. A law must give fair notice to the citizenry of the conduct proscribed and the penalty to be affixed if that law is breached. See, generally, Kolender v. Lawson (1983),
{¶ 82} Although the vagueness doctrine is perhaps most familiar in the context of criminal law, “[vjague laws in any area suffer a constitutional infirmity.” Ashton v. Kentucky (1966),
{¶ 83} “Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to police [officers], judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Footnotes omitted.) Grayned v. Rockford (1972),
{¶ 84} When a statute is challenged under the due-process doctrine prohibiting vagueness, the court must determine whether the enactment (1) provides sufficient notice of its proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific enough to prevent official arbitrariness or discrimination in its enforcement. Kolender,
{¶ 85} In undertaking that inquiry into the statute or ordinance at issue, the courts are to.apply varying levels of scrutiny. “The difference between the various levels of scrutiny for vagueness has never been definitively spelled out, as in equal protection jurisprudence.” ABN 51st St. Partners v. New York (S.D.N.Y.1989),
{¶ 87} The vagueness doctrine is usually applied in criminal law and First Amendment claims, but neither the rationale underlying the doctrine nor the case law interpreting it suggests that it should not be applied in any case in which the statute challenged substantially affects other fundamental constitutional rights. See Jordan v. De George (1951),
{¶ 88} Given that eminent domain necessarily entails the state’s intrusion onto the individual’s right to garner, possess, and preserve property and that sufficient notice is the critical core of the void-for-vagueness doctrine, the doctrine has utility in eminent-domain cases. We hold that when a court reviews an eminent-domain statute or regulation under the void-for-vagueness doctrine, the court shall use the heightened standard of review employed for a statute or regulation that implicates a First Amendment or other fundamental constitutional right. See Hoffman Estates,
{¶ 89} With the controlling constitutional law established, we turn now to its particular applications in the instant cases.
III. Application op the Law to the Facts A
Norwood Code’s Use of “Deteriorating Area” as a Standard for a Taking
{¶ 90} This court has affirmed cases in which a taking of property was upheld upon a showing that the property was a slum, or blighted, or, in effect,
{¶ 91} The takings in the instant cases were based solely on a finding that the neighborhood was a deteriorating area. But what notice does the term “deteriorating area” give to an individual property owner?
{¶ 92} As defined by the Norwood Code, a “deteriorating area” is not the same as a “slum or blighted or deteriorated area,” the standard typically employed for a taking. And here, of course, there was no evidence to support a taking under that standard. To the contrary, the buildings in the neighborhood were generally in good condition and the owners were not delinquent in paying property taxes. There is no suggestion that the area was vermin-infested or subject to high crime rates or outbreaks of disease, or otherwise posed an impermissible risk to the larger community.
{¶ 93} The Norwood Code sets forth a fairly comprehensive array of conditions that purport to describe a “deteriorating area,” including those found by the trial judge in this case: incompatible land uses, nonconforming uses, lack of adequate parking facilities, faulty street arrangement, obsolete platting, and diversity of ownership. In addition, the trial court identified the following factors as supporting the determination that the neighborhood was deteriorating: increased traffic, dead-end streets that impede public-safety vehicles, numerous curb cuts and driveways, and small front yards. But all of those factors exist in virtually every urban American neighborhood.
{¶ 94} Similarly, some of the factors upon which the court relied, such as diversity of ownership, could apply to many neighborhoods. And although the term commonly appears in eminent-domain cases and regulations, it is susceptible of many meanings and to manipulation.
{¶ 96} Moreover, diversity of ownership is a factor of questionable weight. As seems to have been the case here, diversity of ownership is typically considered to be a negative factor for a neighborhood because it purportedly impedes development. Yet Rookwood was able to secure virtually every property owner’s assent to sale without any apparent difficulty. Thus, though diversity of ownership may be a factor to consider in determining whether an area is deteriorated, it is not a compelling one.
{¶ 97} In the cases before us, we cannot say that the appellants had fair notice of what conditions constitute a deteriorating area, even in light of the evidence adduced against them at trial. The evidence is a morass of conflicting opinions on the condition of the neighborhood. Though the Norwood Code’s definition of “deteriorating area” provides a litany of conditions, it offers so little guidance in application that it is almost barren of any practical meaning.
{¶ 98} In essence, “deteriorating area” is a standardless standard. Rather than affording fair notice to the property owner, the Norwood Code merely recites a host of subjective factors that invite ad hoc and selective enforcement— a danger made more real by the malleable nature of the public-benefit requirement. We must be vigilant in ensuring that so great a power as eminent domain, which historically has been used in areas where the most marginalized groups live, is not abused.
{¶ 99} As important, the standard for “deteriorating area” defined in the Norwood Code is satisfied not just upon a finding that a neighborhood is deteriorating or will deteriorate, but is also satisfied by a finding that it “is in danger of deteriorating into a blighted area.” The statutory definition, therefore, incorporates not only the existing condition of a neighborhood, but also extends to what that neighborhood might become. But what it might become may be no more likely than what might not become. Such a speculative standard is inappropriate in the context of eminent domain, even under the modern, broad interpretation of “public use.”
{¶ 101} “Public use cannot be determined as of the time of completion of a proposed development, but must be defined in terms of present commitments which in the ordinary course of affairs will be fulfilled.
{¶ 102} “ ‘ * * * If the public use is contingent and prospective and the private use or benefit is actual and present, the public use would be incidental to the private use, and in such a case the power of eminent domain clearly could not lawfully be exercised.’ Kessler v. City of Indianapolis (1927),
{¶ 103} A fundamental determination that must be made before permitting the appropriation of a slum or a blighted or deteriorated property for redevelopment is that the property, because of its existing state of disrepair or dangerousness, poses a threat to the public’s health, safety, or general welfare. Although we adhere to a broad construction of “public use,” we hold that government does not have the authority to appropriate private property based on mere belief, supposition, or speculation that the property may pose such a threat in the future. O’Neil, supra; Sun Oil Co., supra. See, also, 99 Cents Only Stores,
{¶ 104} We therefore hold that the use of “deteriorating area” as a standard for determining whether private property is subject to appropriation is void for vagueness and offends due-process rights because it fails to afford a property owner fair notice and invites subjective interpretation. Further, we hold that the term “deteriorating area” cannot be used as a standard for a taking, because it inherently incorporates speculation as to the future condition of the property into
{¶ 105} Because Norwood may not justify'its taking of appellants’ property on either the basis that the neighborhood was deteriorating or on the basis that the redeveloped area would bring economic value to the city, there is no showing that the taking was for public use. Our conclusion is not altered by the amount of compensation offered to the property owners in this case, even if it was in excess of the fair market value of their property. Though the questions of just compensation and public use are both critical in an eminent-domain analysis, they must be assessed and satisfied independently. Here, there is not an adequate showing that the takings were for a public use. Accordingly, we reverse the judgment of the court of appeals that affirmed the trial court’s holding that the appropriation of the appellants’ property was permitted.
B
Constitutionality of R.C. 163.19
{¶ 106} We turn now to the constitutionality of R.C. 163.19, one provision of many in R.C. Chapter 163, which governs appropriation actions in Ohio.
{¶ 107} R.C. 163.19 provides that if the owner fails to persuade the trial court that the taking is not necessary, “any party may prosecute appeals as in other civil actions from the judgment of the court. The trial court upon proper terms may suspend the execution of any order; but in all cases where the agency pays or deposits the amount of the award assessed and gives adequate security for any further compensation and costs, as required by the court, the right to take and use the property appropriated shall not be affected by such review by the appellate courts.” (Emphasis added.) We must now determine the effect of the emphasized statutory language on appellate review when the agency has paid the award and has given the required security.
{¶ 108} As we explained in Cincinnati Gas & Elec. Co. v. Pope (1978),
{¶ 109} “The General Assembly has apparently decided that the health, safety and welfare of the general public will be promoted by the speedy construction of necessary public projects. R.C. 163.19 thus appears to be a compromise measure which preserves the property owner’s traditional right to appellate review of the trial court’s findings on the preliminary issues, but which also grants to the
{¶ 110} “ * * * In the majority of appeals in appropriation cases there would be no reason to delay construction of a public project when only the jury award of compensation is contested. In those rare instances where the property owner successfully appeals the preliminary issues of the right to take and the necessity for the take, the title to the property previously conferred upon the appropriating agency, under R.C. 163.15, is thereupon subject to defeasance. Finally, we recognize that because of the balance struck within R.C. 163.19, there is the possibility that the contested property might be damaged by the appropriating agency after it acquires title thereto under R.C. 163.15, only to be later restored, in this damaged condition, to the property owner who successfully appeals the preliminary issues. It is therefore imperative that the property owner who prosecutes an appeal on other than the jury award of compensation adequately inform the appellate court of his dilemma, so that the appellate court might implement the special provision of R.C. 163.22 which mandates that ‘[a]ll proceedings brought under sections 163.01 to 163.22, inclusive, * * * shall be advanced as a matter of immediate public interest and concern and shall be heard by the court at the earliest practicable moment.’ ”
{¶ 111} The appellants concede that per R.C. 163.19, “an agency in possession of appropriated property is shielded from a [former] property’s owner’s attempts to prevent the demolition of his [former] property during the appellate process.” In this way, the taking operates so that “the true rule of justice for the public would be, to pay the compensation with one hand whilst they apply the axe with the other.” Parks v. Boston (1834),
{¶ 112} The appellants contend, however, that because Norwood transferred title to Rookwood after the taking, R.C. 163.19 no longer applies, because Rookwood is not an “agency” as required by the statute. The trial court rejected this argument, holding that pursuant to the express language of R.C. 163.19, “once Norwood deposited the full amount, Norwood was free to take and use the property pending appeal; this includes transferring the property pursuant to its urban renewal plan.” We agree in part.
{¶ 113} It is clear that the General Assembly enacted R.C. Chapter 163 with full knowledge of the issues implicated by appropriation and eminent-domain proceedings, ultimately favoring a scheme in which such matters receive expedited attention in the courts, as provided by R.C. 163.22, but in which injunctive relief pending appellate consideration is not permitted. Although we agree with the court of appeals’ apparent conclusion that the term “use” in R.C. 163.19 was intended to encompass the right to transfer appropriated property to another who may raze and redevelop it, we do not agree that the General Assembly may
{¶ 114} The separation-of-powers doctrine represents the constitutional diffusion of power within our tripartite government. The doctrine was a deliberate design to secure liberty by simultaneously fostering autonomy and comity, as well as interdependence and independence, among the three branches. See, e.g., Fairview v. Giffee (1905),
{¶ 115} “ ‘[T]he people possessing all governmental power, adopted constitutions, completely distributing it to appropriate departments.’ Hale v. State (1896),
{¶ 116} “The power and duty of the judiciary to determine the constitutionality and, therefore, the validity of the acts of the other branches of government have been firmly established as an essential feature of the Ohio system of separation of powers. See, e.g., Beagle v. Walden (1997),
{¶ 117} There can be no debate that pursuant to Section 1, Article IY of the Ohio Constitution, the judicial power resides exclusively in the judicial branch, Bray,
{¶ 118} It is well settled in an array of jurisdictions that the courts’ inherent authority includes the power to issue or to deny stays, State v. Hochhausler (1996),
{¶ 119} “[W]e now * * * once and for all make clear that a court, once having obtained jurisdiction of a cause of action, has, as an incidental to its constitutional grant of power, inherent power to do all things reasonably necessary to the administration of justice in the case before it. In the exercise of this power, a court, when necessary in order to protect or preserve the subject matter of the litigation, to protect its jurisdiction and to make its judgment effective, may grant or issue a temporary injunction in aid of or ancillary to the principal action.
{¶ 121} “ * * * The statutorily granted right to appeal under [state statutes] was [appellant’s] basis for this action * * *. However, the fact that the legislature statutorily provided for this appeal does not give it the right to encroach upon the constitutionally granted powers of the judiciary. Once the administrative action has ended and the right to appeal arises the legislature is void of any right to control a subsequent appellate judicial proceeding. The judicial rules have come into play and have preempted the field.
{¶ 122} “ * * *
{¶ 123} “The language of [the provision of the statute forbidding injunctions] directly locks horns with the constitutionally inherent injunction power of the courts when it says, ‘No court may enjoin the operation of an order of revocation or suspension pending an appeal.’ Such language is a classic example of the very type of legislative encroachment onto the power of the judicial branch of our government which is constitutionally impermissible.” (Emphasis added.) Smothers,
{¶ 124} In Hochhausler,
{¶ 125} We find the rationale of Hochhausler compelling here, particularly given the rights and risks implicated by eminent-domain actions. R.C. 163.19’s blanket proscription on stays or injunctions against the taking and using of appropriated property pending appellate review is an unconstitutional encroachment on the judiciary’s constitutional and inherent authority in violation of the separation-of-powers doctrine.
{¶ 127} Severing the unconstitutional portion of R.C. 163.19 leaves only the first sentence, which reads as follows: “Subject to sections 163.07 and 163.09 of the Revised Code, any party may prosecute appeals as in other civil actions from the judgment of the court.” Although it appears that part of the legislature’s intent in the statute was to prevent the issuance of stays or injunctions pending appellate review, Pope,
{¶ 128} In reaching the conclusion that part of R.C. 163.19 is unconstitutional, we recognize that our decisions in Pope, State ex rel. Suburban Constr. Co. v. Skok (1999),
{¶ 129} In Pope, utility companies sought to acquire easements across properties for a high-voltage transmission line. The property owners in that case argued that R.C. 163.19 rendered meaningless appellate review of the trial court’s decision and thereby deprived the appellants of due process. We held that R.C. 163.19 did not offend due process, but we did not address whether it infringed on judicial authority. Pope is thus distinguishable from the instant case.
{¶ 130} Similarly, in Skok, we did not consider whether R.C. 163.19 violated the separation-of-powers doctrine. Skok was an appeal from a denial of a writ of prohibition sought to prevent a judge from proceeding further in an appropriation case. We held that the “mere fact that [the property owner] may lose its right to enter and take possession of the property pending appeal, see R.C. 163.15 and 163.19, [did] not render appeal an inadequate remedy,” because if the property owner were to prevail on appeal, it would be entitled to repossess the property, and the money that had been deposited by appellee as security would make the property owner whole.
{¶ 131} In Horwitz,
{¶ 132} We found merit in Horwitz’s averment that she lacked an adequate remedy pending appeal because she could not recover even the financial protections afforded by the statute because her right to a hearing on compensation had been denied. Id. at 328,
{¶ 133} But for our orders in this case, the appellants’ property would likely have already been razed. Although we reiterate that it is imperative that appellate courts review these cases as expeditiously as possible, Pope,
{¶ 134} In light of our holding, we reverse the judgments of the court of appeals denying injunctive relief.
IY. Conclusion
{¶ 135} We are cognizant of the particular importance of this decision and its pronouncements of constitutional law in informing the actions that are to be taken by the General Assembly. We agree with the following statement made by Justice Zarella in his opinion concurring in part with and dissenting in part from the Supreme Court of Connecticut’s decision in Kelo:
{¶ 136} “Growing fears regarding the potential abuse of the eminent domain power cannot be dismissed as idle speculation on the part of commentators. As municipalities increasingly struggle to provide public services with limited financial resources, governmental authorities are encouraging more intensive economic development to generate additional tax revenue, to create new jobs and to jump start local economies. Accordingly, there is a gathering storm of public debate as to whether the use of eminent domain to acquire property for private economic development in nonblighted areas is justified. * * * [S]uch debate is essential to clarify the role of the legislature in making determinations of public use and the corresponding role of the courts in safeguarding the rights of private property owners who fear that the takings power will be used solely to benefit private interests. The complementary roles of the legislature and the judiciary as interpreters and guardians of the takings power thus require further examination.”
{¶ 137} In addressing these important matters, we have benefited from the wisdom of other courts, which, by the masterly design of our government, are at the forefront of these critical constitutional questions. Although the judiciary and legislature define the limits of state powers, such as eminent domain, the ultimate guardians of the people’s rights, as evidenced by the appellants in these cases, are the people themselves.
Judgments reversed.
Notes
. The court acknowledges with appreciation the briefs provided by amici curiae.
. The moratorium expires on December 31, 2006. Section 2(A), 2005 Am.Sub.S.B. No. 167.
. Appellants Carl and Joy Gamble had lived in the neighborhood for over 35 years before the appropriation. They raised their children there and planned to live the rest of their lives there. Appellants Joseph P. Horney and his wife, Carol Gooch, once lived in the neighborhood and, though now residing elsewhere, owned and operated rental properties in the neighborhood before the appropriation.
. Chapter 163 of the Norwood Code is entitled “Urban Renewal” and governs Norwood’s appropriations for purposes of urban renewal. Pursuant to the Norwood Code, the city may engage a study of an area in order to determine whether redevelopment is needed. 'Norwood Code 163.04 and 163.05. The study is a preliminary step in the appropriation process. It may serve as a predicate to an urban-renewal plan, which in turn is considered along with other information, including resident input at public hearings on the matter, by the city planning commission and city council to determine whether appropriation is warranted. Id. at 163.03 through 163.09.
. {¶ a} Norwood Code 163.02(b) defines “[s]lum, blighted or deteriorated area” as “an area * * * in which there are a majority of structures or other improvements, which, by reason of dilapidation, deterioration, age or obsolescence, inadequate provision for ventilation, light, air, sanitation, or open spaces, high density of population and overcrowding, unsafe and unsanitary conditions or the existence of conditions which endanger life or property by fire or other hazards and causes, or any combination of such factors, and an area with overcrowding or improper location of structures on the land, excessive dwelling unit density, detrimental land uses or conditions, unsafe, congested, poorly designated streets or inadequate public facilities or utilities, all of which substantially impairs the sound growth and planning of the community, is conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals and general welfare.”
{¶ b} Norwood Code 163.02(c) defines “deteriorating area” as “an area, whether predominantly built up or open, which is not a slum, blighted or deteriorated area but which, because of incompatible land uses, nonconforming uses, lack of adequate parking facilities, faulty street
. “All men * * * have certain inalienable rights, among which are those of * * * acquiring, possessing, and protecting property.”
. “No person shall be * * * deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
. “Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war or other public exigency, imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, * * * a compensation shall be made to the owner, in money, and in all other cases, where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money, and such compensation shall be assessed by a jury * * Section 19, Article I, Ohio Constitution.
. In eminent-domain cases, “just compensation” is that compensation that places the individual in “as good a position pecuniarily as if his property had not been taken,” to be “made whole,” but no
. The federal government did not assert authority to take state lands in its own name until after the Civil War, and the federal courts were not called on to address federal appropriations of state lands until the closing of Reconstruction. See Kohl,
. And zoning regulations — the preventive medicine to ward off blight — have been upheld as valid exercises of the police powers over due-process challenges. Euclid v. Ambler Realty Co. (1926),
. Any suggestion that our past decisions finding a public use in urban redevelopment support the notion that appropriations for purely economic purposes must also be permitted is incorrect. In past cases, we found that the removal of blight alone conferred a sufficient public benefit to warrant the taking because the discrete act of removing blight served to remove an extant health threat to the public. See AAAA Ents., Inc.,
. The conditions found by the trial court here are endemic to urban neighborhoods, including some of the most exclusive in America, e.g., Beacon Hill in Boston, Greenwich Village and Tribeca in lower Manhattan, and Nob Hill in San Francisco.
. There is no dispute that Norwood is an “agency” as that term is defined by R.C. 163.19, see R.C. 163.01(A), and that Norwood paid the compensation awards assessed by the jury.
. We recognize that some courts have held that a legislative body may prohibit a court from issuing injunctions without infringing on the separation of powers, but each of those cases presented
. Recognizing that the General Assembly is currently reviewing legislation in this area of law, we have limited our decision to those points of law that we feel must be decided at this juncture. We note, however, that given our reaffirmation that the Ohio Constitution confers on the individual fundamental rights to property that may be violated only when a greater public need requires it, there are significant questions about the validity of the presumption in favor of the state that is set forth in R.C. 163.09(B), which provides that a resolution or ordinance of an agency declaring the necessity of an appropriation shall be prima facie evidence of necessity in the absence of a showing by the property owner of an abuse of discretion. See Grace v. Koch (1998),